Constitution Daily

Smart conversation from the National Constitution Center

Space Force could hit a constitutional roadblock: The House

November 30, 2018 by Scott Bomboy


According to a report from Politico, President Donald Trump intends to ask Congress to establish the Space Force as an independent military branch in a budget directive heading toward Congress as soon as this week.

A White House draft directive obtained by the website indicates the White House also will pursue a separate track to consolidate current military activities related to space by asking Congress to fund and approve a Space Command group that would work like the U.S. Special Operations Command.

There has been a lively theoretical debate among some scholars if Congress could even establish a Space Force as the sixth military branch under a strict reading of the Constitution. But for now, Trump's Space Force plan faces the final frontier of a constitutional reality: getting a House of Representatives controlled by the Democrats next January to approve the Space Force.

Adam Smith, a Democrat from Washington state who will take over as chair of the House Armed Services Committee, is publicly opposed to the idea. “I am concerned that his proposal would create additional costly military bureaucracy at a time when we have limited resources for defense and critical domestic priorities, and I do not believe it is the best way to advance U.S. national security,” Smith said just after the mid-term elections.

Various reports estimate the Space Force could cost between $5 billion and $13 billion over a five-year period, including the addition of at least 10,000 new personnel and a $1 billion headquarters.

Trump's idea for a new military branch has been debated since he announced his decision in June. The Pentagon followed up with a general outline for the Space Force in August. At the time, the Force had four components: a Space Development Agency, a Space Operations Force, the aforementioned Space Command, and a group that would work to consolidate current laws to fund the new military branch.

“The [Defense] Department will create the governance, services, and support functions of the Space Force. Many of these will require changes to U.S. law. The Department will build a legislative proposal for Congressional consideration as a part of the Fiscal Year 2020 budget cycle,” the Pentagon said in its August report.

While a draft directive from the President can always change before it is made public, key parts of the directive seem to match the broad outline presented by the Defense Department in August. The draft directive reported by Politico includes the establishment of the Department of the Space Force as a new agency and the exclusion of current civilian agencies such as NASA and NOAA from the Space Force.

The academic debate pertains to three powers granted to Congress in Article 1, Section 8: “To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years; To provide and maintain a Navy; and To make Rules for the Government and Regulation of the land and naval Forces.”

Some literalists point to the language as excluding any congressional ability to establish a military branch that isn't the Army or Navy, raising questions about the Air Force's status as a separate branch.

Back in August, the Congressional Research Service released a research finding, “Toward the Creation of a U.S. ‘Space Force’,” that acknowledged that argument but concluded the Constitution’s language made one branch of the federal government mostly in charge of the process of establishing a military department.

“The constitutional framework appears to contemplate that the role of establishing, organizing, regulating, and providing resources for the Armed Forces belongs to Congress, while the President is in charge of commanding the forces Congress has established using the funds Congress has provided,” it said.

For now, that debate remains in the background as the Space Force or alternatives to it become part of the larger federal budget process in 2019. Some House Democrats have supported the idea and more will be known about the White House's plan when it becomes public, along with its budget numbers, in early December.

Scott Bomboy is the editor in chief of the National Constitution Center.


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