While not a done deal, the concept of a Space Force is gaining support on both ends of Pennsylvania Avenue. Maybe it is even a good idea, but any decision on creating such an entity hinges on the ills we’re trying to cure, and the authorities needed to administer the medicine.
It is easy to understand all the interest. From a national security perspective, U.S. interests are obvious. Economically, space has long been big business, and it is only getting bigger. As Commerce Secretary Wilbur RossWilbur Louis RossMomentum builds to prohibit lawmakers from trading stocks Census memo notes 'unprecedented' Trump administration meddling: report Holding defiant Trump witnesses to account, Jan. 6 committee carries out Congress's constitutional role MORE recently noted, space activities are a $336 billion industry, and it won’t be long before we’re looking at a trillion dollars in annual revenue.
This economic growth is being fueled by an explosion in the number of satellites on orbit, which jumped over 40 percent in recent years. Today, as a consequence of that growth, there are approximately 1,500 functioning satellites whizzing around the Earth, more than 2,500 dead ones, and almost seven tons of garbage.
Estimates vary, but there are currently plans on the books for over 15,000 new satellites in the next few years, with the number continuously ratcheting higher in out years. This remarkable expansion of activity creates as many problems as opportunities, and a Space Force may be a useful tool to manage both.
There are three basic reasons to create a new military service.
One reason is if the existing organizational structure causes problems that cannot be fixed without reorganization. For example, one might uncharitably think Navy admirals lack some knowledge, insight, or skill that prevents them from commanding infantry as well as a Marine Corps general might. If a similarly uncharitable distinction exists between Air Force generals and the mission needs of a Space Force, then a new service might be needed.
A second reason might be to protect important niche missions against the budget interests of larger ones. One can imagine a relatively small organization like the Marine Corps may need some administrative distinction to protect its budget from being neglected in the vast sea of Navy requirements. This may play a role in Congress’ consideration of space operations as the National Defense Authorization Act moves forward, although it isn’t yet clear this concern can’t be cured short of creating a new military service.
Finally, one might create a new military branch because existing legal authorities are wrong to meet operational requirements. In the final analysis, if we need a Space Force legal authorities may be the dispositive factor.
For example, we have the Navy and Coast Guard as military and civil counterparts, with significant distinctions between their legal authorities. There are many reasons that the Coast Guard is normally a civilian agency, only transferred to Department of Defense control in extraordinary circumstances, not least of which being that it is an act of war for the Navy to board foreign-flag vessels at sea. We need to have a civilian agency with police powers in that role to prevent a string of international incidents.
The Coast Guard is also a civil agency because it does so many things that simply are not military functions. For example, it regulates commercial port facilities, certain kinds of environmental pollution, and ship safety. Operationally, the Coast Guard rescues of ships in distress, responds to environmental crises, and interdicts criminal activity at sea.
For the Navy, routinely taking on these functions would not just be an enormous distraction from their national security focus, it would create significant problems in both domestic and international law.
Much of the commentary on the creation of a Space Force has presumed that it would be an Air Force version of the Marine Corps. Maybe, but maybe not. Does a space “Coast Guard” make more sense? Depending on the core functions it performs, maybe we should make the Space Force a civilian agency.
As the number of satellites on orbit jumps by a factor of 10 in coming years, one can easily imagine that mere tracking and regulation of satellites and space junk will not suffice. Some governmental entity will need to develop a capability to police the space environment; removing garbage, as well as broken and unauthorized satellites.
Given the sensitivity of a military service capturing and removing things launched into orbit by other countries, it would be best if this function were performed by a space equivalent of the Coast Guard and not the Air Force.
Looking into the distant future, establishing the Space Force as a civilian agency would also future proof the organization against legal prohibitions on the establishment of military installations on celestial bodies. We may not need a space navy or starship troopers in any of our lifetimes, but we may plausibly have permanent commercial facilities on the moon or various asteroids, and a need for a commensurate civil governmental presence.
As the Commerce Department takes over much of the civil space traffic management function from the Department of Defense, adding a Space Force for operational responsibilities could make sense. Although a case can be made for such a force residing with other agencies that have legal authorities over space activity, Commerce already has substantial regulatory and enforcement experience through the National Oceanic and Atmospheric Administration’s role in earth imaging systems and the Bureau of Export Administration’s export control authorities, and this could be a logical extension of its intended expanding role as the “one-stop-shop” in the Office of Space Commerce.
There may be good reasons to create a Space Force, but if so some thought should go into whether it properly belongs in the Department of Defense. That might be the right place for it. Certainly, in time of national emergency, authorize it to operate subject to Department of Defense control. But it might work better functioning day-to-day as a civilian agency.
Brandt Pasco is an attorney in Washington, DC. He is a fellow at Hudson Institute and teaches law at Georgetown University.