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08/26/2018

More on the Space Force and the Constitution
Michael Ramsey

At Constitution Daily, Scott Bomboy: The Space Force and the Constitution (summarizing the blog debate among Michael Dorf, Ilya Somin, Mike Rappaport and me, also discussed on this blog here).  He adds that the Congressional Research Service has just released a report on the issue here: Toward the Creation of a U.S. “Space Force” (Aug. 16, 2018).  On the constitutional point, CRS observes:

Under the Constitution, authority over the Armed Forces is divided between the President and Congress. Under Article I, section 8, Congress has the power “To lay and collect Taxes ... to ... pay the Debts and provide for the common Defence,” “To raise and support Armies,” “To provide and maintain a Navy,” “To make rules for the Government and Regulation of the land and naval Forces,” and “To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States.” Further, Congress is empowered “To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers ...” as well as “all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.”

Congress also has virtually plenary constitutional power over appropriations, one that is not qualified with reference to its powers in Section 8. Article I, Section 9, provides that “No money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law.” It is well established, as a consequence of these provisions, that “no money can be paid out of the Treasury unless it has been appropriated by an act of Congress” and that Congress can specify the terms and conditions under which an appropriation may be used, so long as the restrictions do not impair power inherent solely in other branches or otherwise run afoul of constitutional restrictions on congressional prerogatives. 

Article II of the Constitution vests the President with the “executive Power,” and appoints him “Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States.”

Accordingly, 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 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 President’s commander-in-chief authority is similarly limited to the Army and Navy and activated reserve components. 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. Finally, it is of note that respective congressional and presidential authorities over the Air Force—which is not specifically mentioned in the Constitution—have not been historically called into question.

The report also says:

Congress could choose to establish a new military department with a new military service focused on space operations. The most recent establishment of a military department occurred in 1947, when Congress established the Department of the Air Force via the National Security Act of 1947. This act also transferred equipment, personnel, and installations from the Army Air Corps to the newly created Air Force. The statutory authorities required to establish a new department would likely be similar to those used for the Army (Subtitle B of Title 10), Navy (Subtitle C of Title 10), and Air Force (Subtitle D of Title 10).

This seems to leave open the question whether the President acting alone could establish a separate Space Force.