Five Executive Orders To Unleash Markets in Space

Simple policy changes can unleash innovation, remove barriers, and secure U.S. dominance in the final frontier.

We are at a moment of tremendous opportunity in space. SpaceX dominates world launch markets, and competitors are rising to chase after it. But this superior position will not last if the U.S. makes unwise policy choices. As Robert Heinlein wrote: "The laws of physics work as well for others as they do for us."

Here are five executive orders the incoming president should consider if he wants to unleash space markets and keep America in the lead.

First: Move the Office of Commercial Space Transportation (OCST) out of the Federal Aviation Administration (FAA). Give it back to the secretary of transportation, where it belongs by statute. It was an executive order (by President Bill Clinton) that moved the office to the FAA, and so an executive order can take it out. OCST has its own enabling legislation, its own budget, and its own congressional oversight, but it is a tiny group within the FAA. Bureaucracies assign importance to budgets and headcount, and being within the FAA incentivizes OCST to address any issues by calling for more staff, rather than rewriting the regulations to require less staff per launch. 

Unfortunately, as part of an ill-considered effort to "unify" expendable launch vehicle regulation (which was largely copied from old Federal Range practices) with reusable launch vehicle regulation (which left a lot of regulatory flexibility for the novel practices of new systems, launch vehicle regulation in the last few years has been replaced by a new, unified "Part 450", which combined the virtues of neither approach with the defects of both. A clean-sheet start is needed, returning U.S. launch regulation to a more performance-based regulatory structure. After decades in which every launch and launch site license has had to receive a Finding of No Significant Impact, we should either seek a categorical exclusion, like we have for aircraft, or change to a "shall issue" structure where the government may deny a license application for cause, but, if the government takes no action, the license is approved by default.

The experimental launch permit regime could have been used to cover Starship flights 1–5 with a single approval. If additional regulatory work is needed to revitalize the experimental permit regime, do it. Rather than adding staff to solve licensing backlog and delays, reduce the number of staff hours it takes per application by allowing one application to cover multiple launches.

Second: A core tenet of U.S. space policy since the 1950s is that we thrive in open societies without secrecy and that taking pictures of the Earth is not a hostile act. As such, the president should eliminate all licensing requirements for space-based imagery. No one should have to ask the National Oceanic and Atmospheric Administration (NOAA) for permission to take pictures. If the commercial satellite imaging capabilities become as good as or better than those of government satellites, we maintain access to the best imaging systems in the world. An executive order could direct NOAA to immediately approve all applications for Earth observation licensing, regardless of how good the imagery might be. Then pass legislation so a future administration cannot easily reinstate the requirement.

Third: The U.S. space industry labors under tremendous disadvantages due to the International Traffic in Arms Regulations, which can require government review and approval for things as simple as describing a product on a website. We must eliminate this category completely to restore freedom of speech to U.S. citizens—speaking about space capabilities is not a criminal act and attempts to make it so are unconstitutional.

Note: That has nothing to do with keeping government secrets, which are governed by secrecy agreements, clearances, and the like. It just means that if companies want to talk about their products, or if engineers in private industry want to talk about their work, the authorities should let them. At a minimum, some kind of financial relationship needs to be in place before the U.S. government can claim speech constitutes "technical assistance." An executive order could immediately redefine technical assistance to ensure the regulations do not infringe on free speech. Then, again, we should pass new legislation.

Fourth: The Federal Communications Commission (FCC) has expanded its authority, making licenses for radio transmitters contingent on compliance with conditions that have nothing to do with the radio spectrum. The FCC's domain should be limited to managing that spectrum, not space debris or other aspects of what U.S. commercial companies do in space. An executive order could eliminate this overreach immediately. And since the Supreme Court ended Chevron deference, these rules are unlikely to return without congressional authorization.

Fifth: U.S. obligations under the Outer Space Treaty require us to provide "authorization and continuing supervision" of our commercial space activities. The Department of Commerce should take on this role, because a regulatory regime is not warranted yet—we just need a mechanism for confirming that a proposed space activity doesn't conflict with another registered activity (such as two operations on the Lunar surface based in the same location) or with treaty compliance (you wouldn't be allowed to launch a weapon of mass destruction). The Biden administration proposed to provide this oversight by requiring any novel in-space operation to consult many agencies, each empowered to say "no," with none empowered to say "yes."

Pending legislation, an executive order could designate the Department of Commerce as the responsible agency for in-space commercial activities, just as Reagan made the Department of Transportation the responsible agency for commercial launch before the Commercial Space Launch Act codified it. Such an order must make clear that no permission is required from the government. Instead, the department would maintain a registry and make sure there are no conflicts with a proposed launch. In the absence of a conflict, the activity is registered. When reviewing launch licenses, the secretary of transportation can check that the activity has been registered with the Department of Commerce—and that's all that would be needed. "Continuing supervision" can be maintained by requiring parties to update their registry when they change the nature of an activity.

This process would create clarity for the space industry and provide the first steps towards a system of recognizing that entities operating on celestial bodies are entitled to do so, can expect to continue to do so, and can transfer or sell their operations to others.

All these measures would have a negligible impact on the federal budget. Together, they will foster markets for new commercial space ventures, remove regulatory barriers to developing space-related businesses, and provide a predictable and supportive legal framework for the space industry. The opportunities for accelerating American efforts in space will be greater than ever.

A previous version of this was published on X https://x.com/JeffGreason/status/1860439949100896479