At Dorf on Law, Michael Dorf: Originalists in Space. From the introduction:
Would a Space Force be constitutional?
Here’s the relevant text of the Constitution from Article I, Section 8:
“The Congress shall have the power . . . To raise and support armies, but no appropriation of money to that use shall be for a longer term than two years; To provide and maintain a navy; To make rules for the government and regulation of the land and naval forces . . . .”
A literal reading of that language would mean that Congress lacks the power to create a Space Force or, for that matter, an Air Force. Back in 2007, Ilya Somin responded (here) to an argument against originalism that poses the question “what about the Air Force?” Somin (and others in the comments on his post) offered a number of ways in which an originalist might justify the existence of an Air Force. Some readers responded that Somin’s response took aim at a straw man. No serious nonoriginalist relied on the “Air Force problem” as a critique of originalism, these readers said. Somin responded by citing some serious scholars who in fact had leveled that critique. He also linked a couple of posts by Michael Rappaport. (Interested readers can find the illuminating exchange at the link above.)
Before going further, I want to be clear that I don’t think the Air (or Space) Force problem fatally undercuts originalism. But I do want to note that the example is not quite as easy to dismiss as one might think just based on the fact that a no-Air-Force reading of the Constitution would have potentially disastrous consequences. The problem for originalists is not that they can’t justify the Air (or Space) Force; the problem is that the analytical moves needed to do so render originalism indistinguishable from living Constitutionalism and other nonoriginalist approaches. What about the Air Force? thus poses for originalists the same problem that is posed by questions like What about Brown v. Board? and What about sex discrimination?
At Volokh Conspiracy, Ilya Somin responds: Originalism’s Final Frontier: Is Trump’s Proposed Space Force Constitutional?
… Cornell law Professor Michael Dorf raises the issue of whether it is even constitutional, at least from standpoint of originalism. He does so in the context of a longstanding debate over whether the Air Force is permissible under an originalist interpretation of the scope of federal power.
As with the debate over the Air Force (an issue raised mainly by academic critics of originalism), the point of Dorf’s post is less to criticize the Space Force (though he is actually no fan of the idea) than to attack originalism. If originalism would forbid the establishment of military services that seem vital to national security, that may be a good reason to reject the theory. Dorf analyzes a brief 2007 post in which I addressed the Air Force issue and offered two reasons why an air force can be compatible with originalism. …
I agree with Rappaport and Somin. The Air Force argument is silly.
(a) Is it constitutional for the U.S. army to have tanks? Of course it is. No rational person would read the Constitution’s reference to “army” as limiting the U.S. army to the type of weapons that existed in 1788. There would be no reason for the framers to draft a provision with that meaning. (Similarly, no rational person would think that a law that all vehicles on the highway must travel at 65 mph refers only to vehicles in existence when the law was passed).
(b) Would it be constitutional for Congress to create the Mechanized Weapons Force, administratively separate from the U.S. army, as the force that operates tanks? Of course it would be. The army clauses don’t say anything about the internal organization of the armed forces, and if Congress wants to split the “army” (in its constitutional sense) into various branches (or delegate to the President to power to do so), nothing in the Constitution prevents it. The “U.S. Army” and the “U.S. Mechanized Weapons Force,” as designated by Congress or the President, together constitute the “army” in the constitutional sense.
Now replace “tanks” with “planes” and “Mechanized Weapons Force” with “Air Force.”
But I’m less sure about the Space Force. The key to the 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.
Professor Dorf seems to think this is some sort of “gotcha” moment where originalists have to confess that they are really living constitutionalists. I don’t see that at all. If deep space military missions are beyond the power of Congress under the original Constitution, then there is an obvious remedy: amendment. If everyone thinks that deep space military missions are obviously appropriate (for example, if hostile aliens are discovered), then an amendment should not be a problem. If enough people think that maybe deep space military missions are not appropriate, well, that’s why we have a Constitution of limited powers — Congress only has the powers most people think are appropriate, and Congress must make the case for new powers.
For the moment, though, I assume that the Space Force is going to do ordinary operations in support of the conventional army and navy, and in that sense it’s substantively not going to do anything different from what the Air Force (or the space operations division of the U.S. army) would do if the Space Force is not created. So the constitutional objection is either to the army using new technology (which is silly) or to the Space Force being administratively separate from the other parts of the army (which is also silly). As Professor Somin concludes: “There are plenty of serious objections to originalism. But originalists need not worry too much about the Air Force issue – or the Space Force.”
NOTE: This post was originally published at The Originalism Blog, “The Blog of the Center for the Study of Constitutional Originalism at the University of San Diego School of Law,” and is reposted here with permission from the author.