The law is clear: FAA nominee must receive waiver or resign from the Army

As chairman of the U.S. House Transportation and Infrastructure Committee and as a professional pilot, I am proud of the fact that the United States has been the global leader in aviation since the Wright Brothers. We must remain the world’s gold standard in aviation safety, innovation and leadership.

Permanent, effective leadership at the Federal Aviation Administration (FAA) is critical to maintaining this global gold standard. However, the agency has been operating without a confirmed administrator for a year. Given the NOTAM system meltdown that led to the first nationwide ground stop since 9/11, to more frequent near-misses reported at airports across the country, the lack of permanent leadership and direction at the FAA it is apparent.

Unfortunately, President Biden’s nominee to lead the FAA, Phil Washington, in my estimation, lacks the necessary background and depth of aviation experience to fulfill the administrator role. However, that is now secondary to the break in precedent and intentional disregard for the law that the administration and its allies in Congress are planning this week.

Washington – a U.S. Army retiree – unequivocally fails to meet the very clear legal requirements to serve as FAA administrator, and thus requires a legislative waiver from Congress to serve.

Since President Eisenhower first signed the law establishing the FAA, it has been legally required that the administrator be a “civilian.” To avoid confusion, Congress made a point to elaborate further that the administrator must “be a civilian in the strictest sense of the word. Thus at the time he is nominated he may not be on the active or retired list of any regular component of the armed services…” (emphasis added).  Congress added this requirement to firmly establish civilian control over our National Airspace System, which until 1958 had largely been managed by the military. This intent was so clear that President Eisenhower insisted that the first FAA administrator he nominated, retired Lt. General Elwood “Pete” Quesada, resign his commission in the Air Force and pull his name from the retired list in order to become the agency’s first leader.

The letter of the law is clear — the Congress that passed the Federal Aviation Act, the president who enacted it into law, and the first FAA administrator all clearly recognized that a retired member of the armed forces with an active status on a retired list does not meet the law’s definition of the term “civilian.”

Since then, Congress and the president have adhered to this intentionally strict interpretation of the law’s “civilian” requirement when retired military members, such as Washington, have been nominated as FAA administrator. On four occasions during President Biden’s service in the Senate, nominees have either received the required legislative waiver or resigned their military commission to serve as FAA administrator. The interpretation of this requirement is bipartisan; every previous waiver has been insisted on by a Democratic majority in the House of Representatives as well as presidents and senators of both parties.

I, along with Senate Commerce, Science, and Transportation Committee Ranking Member Ted Cruz (R-Texas), laid out these arguments in a March 2 letter to President Biden. The response we received from the Department of Transportation’s General Counsel, in answer to our letter to the president, unjustifiably sets aside 65 years of law and precedent in favor of using a basic dictionary definition of “civilian.”

This week, Senate Democrats are planning to advance Washington’s nomination in Committee without the legally required waiver from Congress, despite decades of bipartisan precedent. All members of Congress, regardless of party or position on Washington’s qualifications, should be concerned about this flagrant disregard for the rule of law as well as the uncertainty that advancing Washington will inject into an already strained aviation system.

Jamming this nomination through in partisan fashion would be incredibly shortsighted. If Washington is confirmed under these circumstances, any action the FAA takes could face legal challenges, further undermining the agency’s and new administrator’s effectiveness. This won’t just affect the FAA. By disregarding the clear need for a statutory waiver, Senate Democrats are setting a new precedent that will open the door to future presidents of either party choosing to ignore other waiver requirements for nominees.

This lawless action sets a terrible precedent that further diminishes not only the head of the nation’s aviation safety agency, but also the role of the legislative branch, Constitutional checks and balances, and separation of powers. Senators, regardless of party or their position on Washington’s nomination, should insist Congress consider a waiver prior to a final vote on the nominee.

Sam Graves is the Chairman of the House Transportation and Infrastructure Committee.