The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
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.