Analysts: Space Force will test constitutional separation of powers

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Congressional Research Service report: “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.”

WASHINGTON — However Congress responds to the Trump administration’s proposal to create a Space Force, the upcoming deliberations over the reorganization of the U.S. military will put on display the principles of separation of powers.

Under the Constitution, authority over the armed forces is divided between the president and Congress. Depending on what options are pursued to reorganize national security space operations, there will be questions on which branch holds specific authorities to bring a new military service to fruition, notes a new report from the Congressional Research Service. “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.”

The possible creation of a Space Force gives Congress a “unique opportunity to shape the direction of U.S. national security space at this moment in time,” the CRS report says. It warns that the potential costs and personnel disruptions caused by standing up a new service are “likely to play in important ways that could take time to fully understand.”

The process will be complicated because there are multiple proposals on the table, and there is some confusion about the Defense Department and the White House not speaking with a single voice on the issue, the CRS report notes. DoD recently developed a series of recommendations to set up an 11th unified combatant command responsible for space and to stand up new entities for space war fighting and procurement. Separately, the Trump administration called for Congress to establish by 2020 a new military service branch that would be co-equal with the Army, Navy and Air Force.

“Inconsistencies between these various executive branch proposals have puzzled some observers and Congress could play a major role in adjudicating among them,” the report says. “Given the long-standing nature of the debate over how space assets should be managed, some observers view recent proposals as initial positions in a longer-term negotiation.”

Some questions of constitutional authority in the formation of a Space Force fall into grey areas, CRS cautions. “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.”

CRS points out that 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 does not take a position on which approach should be pursued to organize a Space Force. It does point out that Congress generally has been dissatisfied with the performance of the organizations that exist today. “For over two decades, the U.S. Government Accountability Office and others have found that fragmentation and overlap in national security space acquisition management and oversight have contributed to program delays and cancellations, cost increases, and inefficient operations. Congress has attempted numerous organizational and acquisition reforms to address these problems. In the view of many observers, these efforts have generally been unsuccessful.”