CRS: Could the Constitution limit Congress' authority to create a Space Force?

By Courtney Albon / August 24, 2018 at 1:56 PM

It's largely understood that the decision about whether to create a Space Force will ultimately be left up to lawmakers, but a congressional think tank recently raised the possibility that a literal reading of constitutional authorities could call into question the roles of the legislative and executive branches in establishing and commanding a new military department for space.

When President Trump in June directed the Pentagon to stand up a Space Force, defense experts and lawmakers were quick to point out the White House does not have the authority to create a new military department; that power resides with Congress.

But an Aug. 16 Congressional Research Service report notes that based on a careful reading, and perhaps a literal interpretation, of the U.S. Constitution, neither branch of government may be empowered to create a military service whose operational domain extends to space.

The reason, according to the report, is that when discussing presidential and congressional authorities, the Constitution references land and naval forces, but does not refer to the "realm of space."

"It may be conceivably argued that congressional authority is limited to 'land and naval forces,' including 'Armies' and 'the Navy' as well as the 'Militia' . . . and thus would not extend to a new armed force operating primarily in the realm of space," the report states. "The President's commander-in-chief authority is similarly limited to the Army and Navy and activated reserve components."

It's possible a Space Force could be characterized as a land or naval force, the report states, but it is not yet clear whether the new service would conduct most of its operations in space or if its functions would be any different from current space operations.

The report notes that when the Air Force was established as a separate military department, congressional and presidential authorities were not questioned as part of the debate, despite the air domain not being mentioned in the Constitution. A source told Inside Defense it is unlikely the discussion would be opened in the debate over creating a new space service, due in part to the questions it would raise about the Air Force's origins.