The sovereign states’ authority to control the airspace above their territories is an attribute of their sovereignty. To ensure the safety of sovereign states, the states must be given jurisdiction to control the airspace above their territories. Every government completely sovereign in character must possess power to prevent those whom it determines to be undesirable from entering its confines.
In Erickson v. King, 218 Minn. 98 (Minn. 1944), the court observed that “it is essential to the safety of sovereign states that they possess jurisdiction to control the airspace above their territories. Every government completely sovereign in character must possess power to prevent from entering its confines those whom it determines to be undesirable. That power extends to the exclusion from the air of all hostile persons or demonstrations, and to the regulation of passage through the air of all persons in the interests of the public welfare and the safety of those on the face of the earth.”
However, the authority of the various states in this respect is limited by the federal government. But the states in the exercise of their police power may in the interests of the public welfare and the safety of those on land enact regulations affecting the operation of aircraft. However, the states must exercise their police power in such manner that the public welfare is best served[i].
Accordingly, any attempt to regulate air traffic must adhere to the constitutional principle of separation of powers. Any statute that delegates the legislative power to an aviation commission or other administrative body in violation of the constitutional powers of Congress will be deemed unconstitutional[ii]. Likewise, a legislature cannot delegate its power to make laws. Statutes can be enacted only by the agency created by the constitution for that purpose. But when the legislature has adopted general rules, it may delegate the power to a certain agency to apply those general rules to certain specific facts and to exercise discretion in respect thereto.
[i] Commonwealth v. Beaulieu, 213 Mass. 138 (Mass. 1912).
[ii] Michigan C. R. Com. v. Michigan R. Com., 160 Mich. 355 (Mich. 1910).