Comments on the Civil Aeronautics Act of 1938 (Public Law 75-706)


Dwight D. Eisenhower

Dwight D. Eisenhower

I recently participated in a discussion of educational materials to be prepared for helping to understand the administration of Dwight D. Eisenhower, president between January 1953 and January 1961. Eisenhower, whether one agrees with his policies or not, was a consequential president whose administration should be credited with many accomplishments. At the meeting, however, I learned that he was being credited with some that were undeserved. Most of those in the room had the mistaken impression that before the Federal Aviation Act of 1958 which created the Federal Aviation Agency, renamed the Federal Aviation Administration in 1966 when it became part of the U.S. Department of Transportation, there had been essentially no regulatory environment for aviation. I found this remarkable, and noted that it was not like there was nothing beforehand governing flight operations in the U.S. Accordingly, I thought it appropriate to review briefly the Civil Aeronautics Act of 1938, which preceded the FAA by twenty years. Here is what I offered to the group.

An earlier Air Commerce Act of 1926 had also been a significant piece of legislation in establishing the nascent aviation industry’s place in the nation’s business culture, but it was far from an ideal mechanism for fostering and regulating aviation. By the latter part of the 1930s many people, including many members of Congress, were convinced of the necessity of overhauling the existing legislation. Even as the Congress was debating what to do with air mail contracts in 1934, Pat McCarran (D-NV) began to frame a bill for the management of aviation in the United States.

Senator Pat McCarran and Senator Key Pittman, (right) both Democrats from Nevada, exchanging opinions on President Roosevelt's proposal that the membership of the Supreme Court be increased to possibly 15 members. They are pictured as they attended a meeting of the Senate Judiciary Committee.

Senator Pat McCarran and Senator Key Pittman, (right) both Democrats from Nevada, exchanging opinions on President Roosevelt’s proposal that the membership of the Supreme Court be increased to possibly 15 members. They are pictured as they attended a meeting of the Senate Judiciary Committee.

On March 26, 1934, McCarran proposed that all civil aviation be controlled by one authority having quasi-administrative powers similar to the Interstate Commerce Commission. The bill was almost immediately voted down by the Senate, as historian Nick A. Komons has commented, because it “was slightly ahead of its time; but the tide of informed opinion was running, if ever so slowly, in the direction of comprehensive economic regulation.”

McCarran worked almost alone during the next four years to gain passage of a similar bill to what he had proposed in 1934. He exhibited the most systematic thinking about aviation of any member of Congress. A sponsor of several pieces of aeronautics legislation, McCarran eventually developed a far-ranging plan for the region which he called “the blueprint for a new frontier.” A central point of it was the fostering of air transportation. “Huge cargo planes will become commonplace, and millions of tons of cargo will move by air,” he wrote in 1943. He added, “The skies will be filled with cargo vessels, plying the true course through that greatest sea of all—the Aerial Ocean….The inland regions of the west will not be inland, so to speak, because every airline and every airport facility brings these inland regions to the coast.” McCarran glimpsed something of the prospect of aviation for his region in the 1930s, saw much of it fulfilled during the war, and expected even more of it in the postwar environment.

McCarran wanted to be the author of the legislation that by 1938 many people believed was necessary to the safe conduct of air operations. The aeronautics world had been under a state of virtual political siege since May 6, 1935, when another member of Congress, Bronson Cutting, had been killed in the crash of a TWA airliner outside Kansas City, Missouri. He had been returning from New Mexico where he had been campaigning for reelection when the plane went down. More and more, people blamed the lack of firm federal control of aviation for Cutting’s death. McCarran was one, and he wanted to take a lead in avenging it with this legislation. There were a lot of ticklish congressional manueverings as this process went forward, FDR disliked McCarran and froze him out of the game of political give and take that was so much a part of the legislative process.

Instead Roosevelt decided to work through another longstanding aviation proponent, McCarran’s colleague, Representative Clarence F. Lea (D-CA). On March 4, 1938, Lea introduced H.R. 9738, a bill based on a Commerce Department recommendation to the Roosevelt administration. Lea’s bill had several important provisions: (1) a five-member Civil Aeronautics Authority (CAA) to oversee civil aeronautics; (2) a safety board to investigate and determine the probable cause of aircraft accidents; (3) gave the CAA to supervise intrastate flying; (4) allowed for certifications to remain in effect indefinitely; and (5) grandfathered all present certifications under the new CAA.

McCarran proposed his own legislation, a bill that was much more stringent in its management of aeronautics, that did not have the support of the president. At the same time FDR convinced Senator Harry Truman (D-MO) and Royal S. Copeland (D-VT) to introduce legislation similar to Lea’s which would have the backing of the administration. This effort, they believed, would circumvent McCarran’s efforts and enhance the opportunity for the Senate to pass legislation similar to Lea’s in the House.

There followed some sophisticated political hijinks, as the three senators worked for their various bills. McCarran believed, however, that the end was critical to his region and the nation. At one point he said that he had no pride of authorship and simply wanted a bill to pass. “Take my name off the bill if you want to,” he announced. “We need this legislation more than I need my name on a bill.” At the same time McCarran introduced another aviation bill that was similar to Lea’s. It was reported out of committee in May and on the 13th it was passed by the full Senate.

On May 18, 1934, the House passed Lea’s bill, and the two bodies formed a conference to complete the legislation. In considering the act McCarran gave one of his most impassioned speeches. Having just returned from a funeral in Nevada, he told how he had traveled 3,000 miles in a single day. “Every inch of the way there sat at the controls of that great plane a young man who had in his hands my life,” he said, adding that the U.S. must pass this legislation so that it “may take its place in the forefront of this great science and this great industry.”

Members of new Civil Aeronautics Authority take Oath of Office. Washington, D.C., August 8, 1938. Members of the newly created Civil Aeronautics Authority were administered the Oath of Office enmasse today by Associate Justice Harold M. Stephens of the Supreme Court.

Members of new Civil Aeronautics Authority take Oath of Office. Washington, D.C., August 8, 1938. Members of the newly created Civil Aeronautics Authority were administered the Oath of Office enmasse today by Associate Justice Harold M. Stephens of the Supreme Court.

McCarran’s rhetoric proved decisive. On June 11, 1938, the House agreed to the conference bill, and the Senate concurred two days later. Roosevelt signed the Civil Aeronautics Act into law on June 23, 1938, and it went into effect two months later. The act gave the air carriers an economic charter. It also created the Civil Aeronautics Authority and Air Safety Board, both with broad powers to establish and operate airways, and to regulate commercial air operations.

Robert H. Hinckley (right) discusses aviation with Orville Wright.

Robert H. Hinckley (right) discusses aviation with Orville Wright.

When the CAA was created one of the key figures in it was Robert H. Hinckley, who first entered it in 1938 and became its chairman in April 1939. From this post Hinckley tried to acclimate Americans to flying as a way of life. He summarized this perspective as “air conditioning,” the romance of flying. He said that this was “conditioning people to the air; just as the people of the South Sea Islands are conditioned to the water, that other strange element to man.” He wrote, “to be air-conditioned means to be in a state of readiness to do something about aviation and not just to feel strongly about it.”

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