Constitution Daily

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The Space Force and the Constitution

August 22, 2018 by Scott Bomboy

 

The Trump administration’s proposal to create a sixth military service branch to focus on space warfare is raising an interesting debate about the Constitution’s original meaning and how a Space Force would come into existence.

Several scholars familiar to Constitution Daily readers have been engaged in a dialogue about two questions: Does the Constitution’s original language permit the Space Force's establishment? And if the Constitution doesn’t expressly permit Congress to establish an outer space military force in its original language, does other language allow Congress to do so, such as when it established the Air Force in 1947?

In 2007, Ilya Somin, a law professor at George Mason University, discussed a basic constitutional question on the Volokh Conspiracy legal blog, about the Air Force that could apply to the Space Force.

“One argument that is often made against originalist and textualist approaches to constitutional interpretation is the claim that they would render the Air Force unconstitutional. Article I, Section 8 of the Constitution seems to give Congress the authority to create an Army and Navy, but not an Air Force,” Somin said.

“Citing this text, critics of textualism and originalism claim that the Air Force must be considered unconstitutional under these theories of interpretation,” Somin explained, but he saw two problems with the argument.  One argument Somin made was that air forces historically were permitted within the Army and Navy; the other was that the Constitution’s Necessary and Proper Clause would allow Congress to establish an independent Air Force if needed and such an act wouldn’t “infringe on federalism or on other aspects of the constitutional structure.”

The "Air Force as unconstitutional argument" was also disputed at the time by Michael Rappaport, a University of San Diego law professor. “To my mind, the independence of the Air Force is not relevant to the constitutional question.  If the Air Force is constitutional as part of the Navy, then it is also constitutional as an independent department,” Rappaport said.

President Trump’s Space Force announcement has brought the debate back to the legal blogs, with Cornell Law’s Michael Dorf on August 15 raising the originalism argument again. “A literal reading of that language (Article I, Section 8) would mean that Congress lacks the power to create a Space Force or, for that matter, an Air Force,” Dorf said.

Dorf acknowledged that in 2007 “Somin and others offered two pretty good arguments for reconciling the existence of an Air Force or Space Force with the original meaning of the language of Art. I, Sec. 8.” But he faulted the logic used by originalists to justify the Air Force strictly on textual grounds. “My point is that the sorts of arguments available to avoid invalidating the Air Force either rely on a discredited 'what-would-James-Madison-say-if-we-had-a-time-machine?' form of intentions-based originalism, or on de facto living Constitutionalism that undercuts the sorts of deterministic claims originalists make in other contexts,” Dorf said.

Somin’s response to Dorf was that he thought the same arguments made in 2007 about the Air Force supported the constitutionality of a Space Force. Somin said while Dorf saw potential issues with the Necessary and Proper Clause, Dorf didn’t deal with his other point from 2007, that “a Space Force - is perfectly constitutional so long as it is part of the Army or the Navy.”

These arguments between leading legal scholars are fascinating to people interested in constitutional fine points and debates over interpreting the Founding document, and they also aren’t lost on government researchers.

On August 16, the Congressional Research Service released a research finding, “Toward the Creation of a U.S. ‘Space Force’,” that addressed several questions debated on the legal blogs.

“It may conceivably be argued that congressional authority is limited to ‘land and naval forces,’ including ‘Armies’ and ‘the Navy’ as well as the ‘Militia’ (i.e., the reserve components), and thus would not extend to a new armed force operating primarily in the realm of space,” the Service said. “However, it is unclear whether a new Space Force would actually carry out functions in space or that its functions would be any different from those related to space operations already carried out by the various services. Given this uncertainty, it is possible that a Space Force would already constitute a land and naval force under the Constitution.”

While noting that the Air Force’s constitutional legitimacy has never been questioned, the Service said it seemed clear 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.

Both the President and Congress would have options to reorganize existing military services “to conduct space operations,” the Service concluded.

Michael Ramsey, who also is a University of San Diego law professor, raised another interesting argument this week. While he agreed with Somin and Rappaport about the “Air Force argument,” Ramsey thought a service branch that dealt with deep-space operations could raise questions.

“But suppose instead it is projecting force into deeper space, either for the purpose of fighting hypothetical aliens or protecting distant colonization.  One might plausibly argue that this mission is sufficiently distinct from the mission encompassed by the convention meaning of army and navy in 1788 that it's really a different power.  Congress cannot claim a power not otherwise delegated to it simply by putting the army in charge of it,” Ramsey said.

A constitutional amendment would be one option, Ramsey said, to clear up any questions in that scenario, if it had support.

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

 

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