Space

More on the Debate over the Space Force and the Constitution

The National Constitution Center summarizes contributions to the ongoing debate over the constitutionality of the Space Force - including a new Congressional Research Service report on the subject.

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A proposed logo for the Space Force.

Scott Bomboy of the National Constitution Center has an overview of the ongoing debate over the constitutionality of President Trump's proposed Space Force. He summarizes contributions by Cornell law Prof. Michael Dorf, prominent originalist legal scholar Michael Ramsey, and myself. He also discusses a recent Congressional Research Service report on the subject. Ramsey, the CRS, and I all contend that a Space Force is likely to be constitutional, at least in some form. Dorf has doubts on the subject, at least from an originalist point of view. As I explained in my previous post on this issue, the debate is an outgrowth of earlier disputes about whether originalism permits the establishment of the Air Force. Both the Space Force discussion and earlier debates about the Air Force are as much about the value of originalism as about the Air Force and Space Force. Critics of originalism argue that if the theory precludes the establishment of such seemingly essential military forces, that's a good reason to reject it in favor of some version of living constitutionalism.

I think the arguments advanced by Ramsey, myself, and Michael Rappaport (in an earlier iteration of the debate over the Air Force) are enough to dispose of this critique of originalism. However, Ramsey (correctly, in my view) suggests that, while a Space Force closely linked to the air and naval operations can be justified under the existing constitution, which gives Congress the power to establish an army and navy, the same may not be true of a deep space force:

The key to the [constitutionality] Air Force/Mechanized Weapons Force is that the new "forces" operate to support the actions of the conventional army (or, if at sea in the case of the Air Force, the conventional navy). They are new only in the sense that (a) they have new weapons technology and (b) they involve some administrative separation—neither of which could possibly be thought to be excluded by the army/navy clauses of the Constitution. This would also be true of the Space Force, if it is supporting the operations of the conventional army and navy. 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.

A Space Force largely dedicated to operations in and around earth orbit which are intended to support conventional land, naval, and air forces, is likely to be constitutional. A "deep space" force, like Starfleet, intended to conduct interstellar warfare and colonization, probably is not.

Barring dramatic technological breakthroughs, we are still a long way away from needing deep space armed forces (or even being able to produce them). Thus, Ramsey is probably right to suggest that we can enact a constitutional amendment to authorize them, when and if they become necessary. At that point, there is likely to be a broad consensus about the necessity and it should be feasible to meet the supermajority requirements of the amendment process. At any rate, the possible future need for a deep space military force does not strike me as a compelling reason to reject originalism in the here and now. Thus I stand by my earlier conclusion that, while there are plenty of serious criticisms of originalism, the danger of being deprived of essential military forces (whether air or space) is not one we need to be much concerned about.

NEXT: Equity and the Seventh Amendment

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  1. Is it possible that a Deep Space Force is authorized as being Necessary and Proper for carrying into execution spending for the common defense?

  2. What’s the difference between a water navy and a space navy? As you quoted, space forces like Star”Fleet” – using naval terminology and structure – is a concept older than space travel.

    If the US Navy was renamed “Sea Defense Force”, would it become unconstitutional?
    If the Space Force was called the Space Army, would you suddenly call it constitutional?

    Originalism is not Literalism. If you try to ban the propose Space Force as not being an Army or Navy, you also need to make sure that “Freedom of the Press” applies only to printing presses (and only those that use impact to mark, rather than laser printers).

    1. “What’s the difference between a water navy and a space navy?”.

      Not much. The problem lies in the fact that while the constitution authorizes congress to raise many armies, it only authorizes 1 navy. So having a water navy and a space navy that are administratively separate organizations would be constitutionally problematic.

      1. That’s basically my own view. If considered a navy, (And I think it should be.) the space force has to, for organizational purposed, be treated as a separate fleet, not a separate branch of the military.

        As a practical matter, since the Constitution doesn’t dictate the internal organizational details of the military, this allows the space force to be independent of the water navy in all important respects.

        The only real constitutional significance is that language about appropriations.

      2. I don’t think the use of plural v. the singular is really the controlling factor here. I mean, we literally have two distinct branches of the armed forces that operate at sea: the Navy and Coast Guard. Is the latter unconstitutional? Similarly, the U.S. army maintains a number of ships. If you can raise as many armies, why can’t space for be one of the armies raised, but it just happens to maintain space ships?

        1. ” I mean, we literally have two distinct branches of the armed forces that operate at sea: the Navy and Coast Guard.”

          Not really. While in the case of all out war, the Coast Guard would be passed back to the DoD, during peace times, the CG is generally treated/acts as a federal law enforcement/search & rescue agency.

          Absent emergency conditions and a declaration of martial law, it’s unconstitutional to use the armed forces for civilian law enforcement. So if the CG is considered a branch of the armed forces then their drug interdiction efforts are unconstitutional.

          The truth is, that as they are currently organized and act (as part of DHS) the CG is more a water born extension of US Customs/US Marshals Service than a “navy”.

          1. “While in the case of all out war, the Coast Guard would be passed back to the DoD”

            And specifically the Department of the Navy. So organizationally it does become part of THE Navy during wartime.

    2. However in this case literalism doesn’t matter as Congress combined the two military departments (Armies & Navy) into one military department (DOD). The Constitution also authorized Congress to regulate the military department(s) and they chose to have one military department with separate services. IMO that is originalism as well as literalism.

      I would also note, that there are numerous departments that violate the Constitution far more egregiously than combining the Armies and Navy into one DOD.

  3. Setting aside the wisdom of the proposals for the moment (or the correctness of this particular interpretation), the criteria that new DOD Branches can only exist if they are there “to support the actions of the conventional army” would seem to authorize a deep space force assuming that army (or marine) forces are deployed to protect US persons or material at far flung assets on other worlds; since in that case such a force would be necessary to secure the required lines of logistics/communication (a form of support). I suppose he hedged by saying only that a plausible argument could be made, but it strikes as a quite weak one.

    On a side note the criterion of “sufficiently distinct” strikes me as so vague as to be virtually useless.

  4. Angels. Pinhead.

  5. As military history, the Army and the Navy served very different purposes. The Navy’s job was to keep the peace: fight pirates, make sure shipping was safe, keep control over the sea. It was a permanent presence.
    The Army was a war-fighting machine. It tended to be manned by conscription, in emergencies. In between wars, you would get by on a skeleton crew, enough to be able to build the Army quickly when you really really needed it.
    Anyhow, it seems to me we need to decide what the Space Force is supposed to do. If the goal is to keep the peace in space, protect the property of those who try to work up there, etc., then it’s really an extension of the Navy; I don’t know that it matters that it is “starry seas” instead of water.
    I really hope we don’t need a war-fighting force up there, at least not until we get really well established. If we do, I don’t know that space will have a future, and probably not much of one for us down here either.

    1. _*>”I really hope we don’t need a war-fighting force up there . . .”*_
      No real military strategist suggests that this is the case. Everyone says “we need to be prepared” as a euphemism for “we need to be efficient.” We already have the largest presence in space and are the only country that has shot down a satellite during a real operation (to my knowledge).

  6. A Space Force largely dedicated to operations in and around earth orbit which are intended to support conventional land, naval, and air forces, is likely to be constitutional. A “deep space” force, like Starfleet, intended to conduct interstellar warfare and colonization, probably is not.

    The problem with that argument is that over the longer term the slippery slope is not likely to see such a force confined to (low) Earth orbit . The problem then becomes at just exactly what point does unconstitutionality creep in?

    If putting unmanned military satellites in Earth orbit is OK then presumably putting manned bases in orbit is probably also OK. If so then what about putting manned military bases on the Moon? After all it also orbits the Earth, just a little further out.

    What about bases at the Lagrange points (which aren’t in Earth orbit but do travel round the Sun in synchrony with the Earth)?

    If the US one day has civilian bases on (say) Mars would it be OK to send the Army out there (to protect them from the Russkies or the Chinese) but not the Space Force?

    And what if the US dubbed the Space Force the Space Navy? Would that increase its constitutionality?

  7. What if the deep space missions are intended to support the Army or Navy on, say, Mars or Titan or Alpha Centauri? That should be proper.

    What if the deep space mission is to enforce property rights in the asteroid belt for mining companies? That’s not obviously in support of the Army or Navy … but I bet it would be pretty easy to come up with scenarios making it so, such as needing to mine water for terraforming Mars so it can support a Navy.

  8. As a former member of the Defense Intelligence Agency, I can confidently state that the Trump administration?and to some extent, the Department of Defense? is grossly overstating the “militarization” of space. To hear their spokespeople say it, the Russians and Chinese are preparing bases in outer space to attack the United States and to prevent us from exploring it. This is complete nonsense; nothing is further from the truth.

    Space is weaponized in three ways: maintaining military [read: intelligence gathering] satellites, shooting down satellites, and shooting down missiles. The US has ~80% more military satellites than Russia, the country with the second most; and it sends up more all the time. Shooting satellites and missiles doesn’t require a large, unskilled workforce. At present, we have personnel enough around the world who are capable of doing these tasks. We have already shot down a satellite, but there is a question of how effective our anti-missile defenses are. That concern can be addressed through a regular weapons procurement.

    There is no military need to create in independent Space Force branch of the military.

  9. “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.”

    How is fighting hypothetical alien foes and protecting citizens not a conventional function of the existing military?

    Armies are normally going to be fighting “aliens” in a legal sense, that they might also be aliens in a biological sense seems legally irrelevant. And the navy normally projects force to defend citizens at a distance. It seems to me that the proposed space force would only be doing the jobs the existing military does, just outside the atmosphere.

  10. I think you are dismissing legitimate adminstrative constitutional objections at the same time as imposing an unnecessary mission test.

    There is a legitimate administrative structural concern with fragmenting the armed forces into too many pieces that separately report to the President. Indeed, in authoritarian regimes we often see this strategy employed to create a kind of praetorian guard with greater personal allegiance to the leader. (See, e.g., the Iranian Revolutionary Guard Corps.) As a result, I don’t think it is crazy at all to identify constitutional concerns with having an Air Force or Space Force that separately reports to the President.

    But that of course is not the structure that we have. Instead, we have a Department of Defense that oversees all of the forces. Nothing proposed would create a new military force that separately reports to the President.

    On the other hand, the mission test you impose seems too strict. It’s hard to see why employing the Air Force to guard air transit lanes would be constitutionally offensive, just because they are in the air and not on the surface of the water. Or similarly if there were submarine transit lanes guarded by the Navy. Given that, I don’t see how guarding space transit lanes would be any different. And, once there are American settlements off planet, it is hard to see why the Army or Marines couldn’t defend them.

    1. Exactly. It is truly sad that so many people fail to see that Congress combined the two military departments with Cabinet members into one military department containing both the armies and navy. That one military department of the US government is organized into separate services through the Constitutional power given to Congress to regulate the military. So basically, the new Space Force could become a separate service within the one military ala the Air Force or it could become a semi-separate service with the one military ala the Marine Corps.

    2. >”But that of course is not the structure that we have. Instead, we have a Department of Defense that oversees all of the forces. Nothing proposed would create a new military force that separately reports to the President.”

      Considering that the Trump White House proposed the Space Force, you are inadvertently hurting your argument. This administration says the President has the constitutional authority to force every Article II entity to report directly to the officeholder under the unitary executive theory. (Of course in true Trump fashion, failure to require direct control doesn’t mean he can’t do it later.) Therefore, Space Force could be forced to act as “a kind of praetorian guard with greater personal allegiance to the leader.”

      1. I’m not sure why the Trump White House’s position on Article II powers generally has anything to do with anything. It’s not like his position on that issue suddenly makes the Air Force unconstitutional.

        Moreover, I don’t think the administration even holds that position. Even if it did, it makes no sense since the Constitution plainly says that principal officers have to be appointed with the advice and consent of the Senate. You can’t interpret your way around that.

    3. “There is a legitimate administrative structural concern with fragmenting the armed forces into too many pieces that separately report to the President.”

      Where is this administrative structural concern reflected in the Constitution?

  11. Critics of originalism argue that if the theory precludes the establishment of such seemingly essential military forces, that’s a good reason to reject it in favor of some version of living constitutionalism.
    If the Constitution doesn’t grant a power, it isn’t originalism’s fault. There is an originalism based process for updating the Constitution. It has been used 20-some times.

  12. Let’s get this straight. Since the internet is neither speech nor press, the first amendment doesn’t apply to it. And the right to keep and bear arms applies to flintlock muskets.

    If one is going to take a position like this, one ought to be consistent about it, and not pull it out just occasionally when one feels like it.

    1. I see the argument that a space force would be unconstitutional as being more textualist than originalist, the text of the constitution only authorizes 1 navy.

      On a textualist bais, your 1A free press argument might have some (very weak) pull, but your 2A argument is easily disposted of as utter nonsense. The text of 2A says “arms”, which is a generic term for all forms of weaponry. There is no basis in the text to impose a limitation protecting only forms of weaponry that existed at the time of ratification.

      Note: The text of 2A “keep and bear” may provide a basis for excluding vehicle mounted and/or crew served weapons. You don bear a tank, the tank bears you.

  13. As I see it, an originalist interpretation would mean that any air or space forces would have to be under either the Army or the Navy, until a constitutional amendment expands the possibilities of the command and organizational structure.

    This is hardly the reductio ad absurdam for originalism that some folks seem to think.

    1. Even if it was 100% absolutely certain that the original Constitution did not allow for the Space Force, I fail to see how that’s a problem for originalism. If needed, I’m willing to bet we could pass a constitutional amendment authorizing a space force long before there are any ships in space shooting lasers at each other.

  14. Similar arguments could be made about the U.S. Marines and Coast Guard, now treated as extensions of the Navy, or the Public Health Service, treated as an extension of the Army.. The Air Force was originally an extension of the Army, because aircraft were originally used to support ground operations. It seems clear that the terms “Army” and “Navy” used in the Constitution originally meant “military forces”.

    The fact is that we already have a Space Force, now treated as an extension of the Air Force. That is an obsolete arrangement. Since it involves the operation of “vessels” it might make some sense to treat it as an extension of the Navy, for purposes of constitutional argument.

    But if the rumors of advanced space travel technology are true, then it is time for a force that can operate vessels far beyond the earth, like Star Fleet. Some of those rumors are that we already operate UFO-like vessels with FTL (faster than light) travel capabilities, that are being kept secret from the public. A Space Force can provide a way to disclose such technology and win public support for it. Just search for such things on Google or Youtube.

    See for example https://www.youtube.com/watch?v=WJdMLhZfZ6I

    1. >”Similar arguments could be made about the U.S. Marines and Coast Guard, now treated as extensions of the Navy . . .”
      Now treated? The United States Marine Corps has always been and still is a part (a corps of naval infantry) of the United States Navy.

      1. This wasn’t entirely clear prior to the 1840s.

    2. I ask that everyone check out that video, if only to see the batshit insane comments.

  15. What if the United States claimed territory on a foreign planet, even annexing it as a State in the future? Using armed forces of the United States to expand its territory is exactly what we did on this planet.

  16. I happen to think that a Space Force is a silly idea, but what is really silly is adhering to a theory of constitutional interpretation that makes you tie yourself up in knots before you can say it is constitutional.

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