Toward the Creation of a U.S. “Space Force”

Toward the Creation of a U.S. “Space Force”

August 16, 2018
Toward the Creation of a U.S. “Space Force”
Background
Organizational Structure of the Military
For over two decades, the U.S. Government Accountability
The U.S. military is composed of three military
Office (GAO) and others have found that fragmentation and
departments—the Departments of the Army, Navy, and Air
overlap in national security space acquisition management
Force—and four armed forces (the Department of the Navy
and oversight have contributed to program delays and
is responsible for both the Navy and the Marine Corps).
cancellations, cost increases, and inefficient operations.
The Secretaries of the military departments are responsible
Congress has attempted numerous organizational and
for organizing, training, and equipping their respective
acquisition reforms to address these problems. In the view
forces.
of many observers, these efforts have generally been
unsuccessful.
Unified Combatant Commands (COCOMS) are
organizationally responsible for employing these forces
In addition to these perceived managerial deficits, Congress
during military operations. There are currently 10 Unified
has more recently expressed concern over the slow pace
COCOMs, including 6 that are geographically defined (e.g.,
with which the Department of Defense (DOD) and the Air
U.S. Central Command) and 4 that are functionally oriented
Force have addressed the growing threat to U.S. national
(e.g., U.S. Strategic Command.) Unified COCOMs are led
security in space from adversaries, particularly Russia and
by a single commander and composed of a mix of
China, and to a lesser extent North Korea and Iran. Some in
servicemen and women from the military departments.
the military and elsewhere now increasingly refer to space
as a “warfighting domain”; once seen as peaceful and
Currently, the Air Force provides space mission capabilities
uncontested, space is now viewed as crowded and
for DOD, primarily through the Air Force Space Command,
adversarial.
which has its headquarters at Peterson Air Force Base in
Colorado, but has additional installations around the world.
Generally, House Members have led the effort to remove
Section 1601 of the FY2018 NDAA (P.L. 115-91)
institutional barriers to space acquisition reform by
authorized the establishment of Commander, U.S. Air Force
advocating for the creation of a new entity for national
Space Command, and designated the commander of Air
security space. Until recently, the Senate largely favored
Force Space Command as the “sole authority with respect
efforts to reform existing organizations rather than
to … [o]rganizing, training, and equipping personnel and
authorize new ones. However, as part of the FY2019
operations of the space forces of the Air Force.”
National Defense Authorization Act (NDAA) deliberations,
both chambers passed (and the President signed) legislation
Options for Space Reorganization
that authorized the creation of a subordinate unified
Specific organizational options that the President or
command known as the U.S. Space Command (under the
Congress could implement to conduct national security
U.S. Strategic Command). The reorganization was intended
space operations include the following:
to address long-standing concerns related to space
acquisition management and sharpen DOD’s strategic focus
Reorganization within the military services. The
on space.
President could direct the service secretaries to develop new
units or restructure existing units to provide greater
DOD recently developed a series of additional proposals
capability and capacity to conduct space operations. Such
that would authorize the creation of an 11th unified
changes might involve procuring new equipment, revising
combatant command responsible for space. Separately, the
training strategies, and modifying organizational structures
Trump Administration called for Congress to establish by
and relationships. Congress could also mandate such
2020 a new military service branch—Space Force—with
changes by statute, or influence executive branch action
the goal of asserting “American dominance in space.” The
based on its oversight and appropriations powers.
new service branch would be the first since the creation of
the U.S. Air Force (previously part of the Army) in 1947.
Establish a new COCOM. Using the authority of 10
Inconsistencies between these various executive branch
U.S.C. 161, the President could direct the establishment of
proposals have puzzled some observers and Congress could
a space-oriented COCOM, or a subordinate unified
play a major role in adjudicating among them.
combatant command under an existing COCOM (similar to
the subordination of U.S. Forces Korea to U.S. Indo-Pacific
Given the long-standing nature of the debate over how
Command). Alternatively, Congress could require the
space assets should be managed, some observers view
establishment of a space-oriented COCOM in law, perhaps
recent proposals as initial positions in a longer-term
with special authorities, as it did with the establishment of
negotiation among the part of major stake holders during
Special Operations Command and Cyber Command (10
next year’s NDAA and beyond.
USC 167 and 167b). The FY2019 NDAA provided for the
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Toward the Creation of a U.S. “Space Force”
establishment of a subordinate unified command, to be
Militia of the several States, when called into the actual
known as U.S. Space Command, under U.S. Strategic
Service of the United States.”
Command.
Accordingly, the constitutional framework appears to
New military service. Congress could establish a separate
contemplate that the role of establishing, organizing,
military service focused on space operations within one of
regulating, and providing resources for the Armed Forces
the existing military departments, in a manner similar to the
belongs to Congress, while the President is in charge of
way the Marine Corps exists within the Department of the
commanding the forces Congress has established using the
Navy. The statutory authorities required to establish such a
funds Congress has provided.
new service would likely resemble those used for the
Marine Corps (various sections of Title 10, Subtitle C,
It may conceivably be argued that congressional authority is
including Chapter 506).
limited to “land and naval forces,” including “Armies” and
“the Navy” as well as the “Militia” (i.e., the reserve
New military department. Congress could choose to
components), and thus would not extend to a new armed
establish a new military department with a new military
force operating primarily in the realm of space. The
service focused on space operations. The most recent
President’s commander-in-chief authority is similarly
establishment of a military department occurred in 1947,
limited to the Army and Navy and activated reserve
when Congress established the Department of the Air Force
components. However, it is unclear whether a new Space
via the National Security Act of 1947. This act also
Force would actually carry out functions in space or that its
transferred equipment, personnel, and installations from the
functions would be any different from those related to space
Army Air Corps to the newly created Air Force. The
operations already carried out by the various services.
statutory authorities required to establish a new department
Given this uncertainty, it is possible that a Space Force
would likely be similar to those used for the Army (Subtitle
would already constitute a land and naval force under the
B of Title 10), Navy (Subtitle C of Title 10), and Air Force
Constitution. Finally, it is of note that respective
(Subtitle D of Title 10).
congressional and presidential authorities over the Air
Force—which is not specifically mentioned in the
Constitutional Authority to Establish a
Constitution—have not been historically called into
“Space Force”
question.
Under the Constitution, authority over the Armed Forces is
divided between the President and Congress. Under Article
Additional Considerations
I, section 8, Congress has the power “To lay and collect
Given myriad challenges to creating some new structure
Taxes ... to ... pay the Debts and provide for the common
around which to organize national security in space, some
Defence,” “To raise and support Armies,” “To provide and
in Congress are looking at previous major legislative
maintain a Navy,” “To make rules for the Government and
reforms. Many are focused on how best to address the
Regulation of the land and naval Forces,” and “To provide
challenges of solving the problems that exist today.
for organizing, arming, and disciplining, the Militia, and for
Previous major legislative initiatives include the creation of
governing such Part of them as may be employed in the
the Air Force itself, the creation of U.S. Special Operations
Service of the United States.” Further, Congress is
Command, Cyber Command, or even Transportation
empowered “To make all Laws which shall be necessary
Command. Other significant landmark bills include the
and proper for carrying into Execution the foregoing
Goldwater Nichols Act, the Patriot Act, and creation of the
Powers ...” as well as “all other Powers vested by this
Department of Homeland Security. Each of these took
Constitution in the Government of the United States, or in
varying amounts of time and hearings to establish (e.g.,
any Department or Officer thereof.”
creation of the Air Force took three years of hearings), and
most provide varying degrees of lessons learned, both good
Congress also has virtually plenary constitutional power
and bad. Congress may focus on previous major legislation
over appropriations, one that is not qualified with reference
to determine how best and how quickly to proceed toward
to its powers in Section 8. Article I, Section 9, provides that
reorganizing DOD and its future in space.
“No money shall be drawn from the Treasury, but in
Consequence of Appropriations made by Law.” It is well
Budgetary costs and personnel disruptions and
established, as a consequence of these provisions, that “no
opportunities are also likely to play in important ways that
money can be paid out of the Treasury unless it has been
could take time to fully understand. Congress has a unique
appropriated by an act of Congress” and that Congress can
opportunity to shape the direction of U.S. national security
specify the terms and conditions under which an
space at this moment in time.
appropriation may be used, so long as the restrictions do not
impair power inherent solely in other branches or otherwise
Steven A. Hildreth, Coordinator, Specialist in U.S. and
run afoul of constitutional restrictions on congressional
Foreign National Security Programs
prerogatives.
Jennifer K. Elsea, Legislative Attorney
Lawrence Kapp, Specialist in Military Manpower Policy
Article II of the Constitution vests the President with the
“executive Power,” and appoints him “Commander in Chief
Kathleen J. McInnis, Specialist in International Security
of the Army and Navy of the United States, and of the
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Toward the Creation of a U.S. “Space Force”

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