The Space Force and Beyond: Hits and Misses from the Legal Battle to Establish a New Military Branch

October 2, 2018

Ashle Page

During his inaugural speech, President Donald Trump declared that “[w]e stand at the birth of a new millennium, ready to unlock the mysteries of space…” In March of 2018, one of those mysteries was unlocked and the idea for a Space Force was born. Some may argue that it was actually created “a long time ago in a galaxy far, far away” (in 1977), but that is a different story.

Following President Donald Trump’s speech to U.S. Marines in March, the President officially announced plans to create the Space Force in June 2018. On August 9, 2018, Vice President Mike Pence stood with the support of the Pentagon and Department of Defense Secretary James Mattis, declaring the “objective of establishing the United States Department of the Space Force by the year 2020.”
Yet, about a year ago, in July 2017, Secretary Mattis wrote in a letter to a member of Congress that he did “not wish to add a separate service that would likely present a narrower and even parochial approach to space operations,” as Congress had suggested a similar proposal to create a Space Corps under the Air Force.

Since then, some have criticized the idea of a Space Force, while others have embraced the concept as nations such as Russia and China are developing ways to disable the satellites of other countries. In September 2018, the Secretary of the Air Force, Heather Wilson, placed her support behind the proposal. Astrophysicist Neil deGrasse Tyson also announced his support for a Space Force, noting this historical collaboration of scientists and military powers. Space Force logos are even being created for the new branch.

Ultimately, there are many legal unknowns for the creation of the Space Force, however, one can hope that the message sent by a new military branch will echo the words left on the moon landing plaque in 1969: “We came in peace for all mankind.”

Though a Space Force may seem theatrical to some right now, actual legal issues may result from the development of a new military branch. The establishment of a Space Force presents a wealth of new legal issues, however, many are also rooted in traditional legal debates.

Constitutional Issues
Article 1, Section 8 of the U.S. Constitution provides Congress with the power to “raise and support Armies…[and] to provide and maintain a Navy; [t]o make Rules for the Government and Regulation of the land and naval Forces.” Even in the 1940s, individuals raised concerns about the establishment of the Air Force as a separate military branch, desiring to keep the group within the confines of the Army prior to its official establishment in 1947.

Some argue that the original text of the Constitution does not allow for the creation of military branches other than an Army and a Navy. Others argue that new branches of the military can be supported through the Necessary and Proper Clause, however, some find issue with this method through the lens of NFIB v. Sebelius and McCullough v. Maryland. Such advocates assert that independent powers (in this case, a new military branch) cannot be implied, but must be granted in terms. Others contend that simply having a branch created of an already established part of the Army or the Navy, yet under a different name, should not be relevant to the issue. They argue that only the similarities in functionality between various military entities matter to the textual issue. For others, if Space Force operations still occur on Earth, the “land and naval” forces described in the Constitution may possibly still be applicable to the Space Force and consequently, no Constitutional issues exist.

Some, however, assert that the Space Force already exists in another form as part of current military operations, especially through the Air Force’s U.S. Space Command, and do not recognize any significance in simply moving those functionalities to another branch. Ultimately, however, in order for a Space Force to be established as a separate branch of the military, Congress will have to rewrite Title 10 of the U.S. Code.

Based on figures from an Air Force memo, the estimated five-year cost of a Space Force is $12.9 billion, run by a proposed workforce of 13,000 personnel. This will create numerous policy issues concerning the allocation of funds within the Department of Defense.

Claims of Sovereignty
As stated in Article II of the Outer Space Treaty (of which the United States and many other countries are a part), formed in 1967, “Outer space, including the moon and other celestial bodies, is not subject to national appropriation by claim of sovereignty, by means of use or occupation, or by any other means.” The Outer Space Treaty also indicates in Article I that “there shall be free access to all areas of celestial bodies.” While the Space Force may only utilize remote satellites at first, these objects still take up area in outer space, and may be viewed as a claim of sovereignty within outer space. Currently, these issues exist with the presence of satellites now in space. Other legal issues of ownership and claims of sovereignty may ensue if military operations are established on celestial bodies, including the moon, asteroids, or even other planets such as Mars.

Militarization of Space
Since the launch of Sputnik I in 1957, the race for space has inevitably involved international defense tactics. Article IV of the Outer Space Treaty, however, prohibits most military actions in space, stating that “States Parties to the Treaty undertake not to place in orbit around the Earth any objects carrying nuclear weapons or any other kinds of weapons of mass destruction, install such weapons on celestial bodies, or station such weapons in outer space in any other manner. The Moon and other celestial bodies shall be used by all States Parties to the Treaty exclusively for peaceful purposes. The establishment of military bases, installations and fortifications, the testing of any type of weapons and the conduct of military maneuvers on celestial bodies shall be forbidden.”

Yet, the Treaty goes on to state that the “use of military personnel for scientific research or for any other peaceful purposes shall not be prohibited.” This clause may provide a legal loophole for the Space Force to peacefully “observe” the actions of other nations through satellite usage for security purposes in accordance with Article III’s mention of maintaining security through space exploration (mandating that parties “carry on activities in the exploration and use of outer space…in the interest of maintaining international peace and security”). 

Ultimately, there are many legal unknowns for the creation of the Space Force, however, one can hope that the message sent by a new military branch will echo the words left on the moon landing plaque in 1969: “We came in peace for all mankind.”