The United States Air Force is unconstitutional

Continuing the discussion from Is the Internet a Post Road?:

background of this discussion (click to show/hide)

Now we have a dedicated topic for the debate. I think the USAF is unconstitutional. My position, in a nutshell,

While I believe the proper role of a national government includes maintaining an air force, I believe the U.S. Air Force is unconstitutional . (the constitution grants Congress limited powers to “raise and support Armies ”, to “provide and maintain a Navy ”, and to “make Rules for the Government and Regulation of the land and naval Forces”). Therefore the constitution is flawed and should be amended . How could it not be so? The Wright Brothers didn’t fly until 1903, while the Constitution was written in the eighteenth century.

In response to UltraVires’s most recent post, I don’t think such a broad definitions of “Armies” is in order when a distinction is made between “Armies” and “a Navy”. See also where the Constitution empowers Congress to regulate the land and naval forces - they did not anticipate an airborne fighting force.

~Max

It’s usually justified under the necessary and proper clause in section 8. As to “provide for the common defense”.

The Congress shall have Power… To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.

Taking the words of the constitution literally, perhaps there needs to be an amendment. Unfortunately not enough people care about this issue . To be frank I feel that one of the reasons we won WW2 was because of the Air Force.

Tanks are unconstitutional as well, since there’s no mention of motorized forces either. Submarines, too; underwater-borne forces are not explicitly described.

Or, overly literal interpretations are not useful. Armies can have airborne troops just as well as motorized troops. And navies can have airborne troops just as well underwater troops. And Congress can organize the military however it wishes.

I shudder to think what the framers would do with the Space Corps.

Anyway, the Army had an Air Corps. Calling it an Air Force doesn’t really change anything

The preamble, where “provide for the common defence” is found, is not considered a valid grant of power for the necessary & proper clause.

“provide for the common defence” also appears when Congress is granted the power to tax, but it cannot be used without that context with the necessary & proper clause. An air force is not necessary and proper for the purpose of collecting taxes for the common defence.

~Max

It doesn’t follow. There was no explicit mention of cavalry but the term Armies was commonly understood at the time to encompass cavalry forces (eg: dragoons, lancers).

I am also of the opinion that bona fide ancillary forces such as an airborne/water recon outfit would fall under necessary & proper.

The federal government certainly does not have the power to regulate the military however it wishes, there was a lot of debate over the precise language used when it comes to the military.

~Max

When you say the “Air Force is unconstitutional,” are you saying that the Department of the Air Force/military branch is unconstitutional or that it is unconstitutional to use federal money to pay for military aircraft and operations? Your reliance on “land and naval Forces” would tend to suggest the latter (i.e. that Naval aviation is also unconstitutional).

That position seems weird. The use of balloons in warfare may not have predated the constitution, but was roughly contemporaneous with it and there’s really nothing to suggest that the constitution would have prohibited the US Army from using balloons.

If it’s the former, then it’s just organization. If the power to raise “a navy” extends to a fleet, but also shore operations, and aviation operations, and a civilian bureaucracy to manage it all (and it surely does), then carving off part of that and calling it an “Air Force” can’t be unconstitutional. The same with Space Force. Or, for that matter, if we wanted to carve off whatever parts of the armed forces are responsible for maintain forts/bases/etc. and call it the “Facilities Force” (or something).

My point: If naval aviation or the army air corps are constitutional, then structuring them under the “Air Force” department is constitutional.

Edit:

This is wrong, of course, but sort of illustrates my point.

Perhaps I am placing my conservative strict constructionist membership card in jeopardy, but I don’t see why land forces cannot also use the air for combat. You need to land the planes eventually. I think it to be strict construction plus, a sort of hyperliteralism to say that armies may not also use the air for combat. IMHO, it would be like saying free speech doesn’t apply to television or the internet.

Sure it does.
The preamble states the purpose of the Constitution.
The further text states how this purpose is to be carried out, and importantly, how it should not be carried out.
The Const establishes a govt. The purpose of which is to fullfil the purpose of the Const.
It gives this govt the power to establish armies (note the plural).
It also give the govt the power to declare war.
What is the justification to give the govt these powers (among others)? To provide for the common defense.
And then it gives the govt the power to create laws necessary and proper to fulfill this purpose.

The concept is whether an unenumerated power is “incident to” an enumerated one. My position is that creating an ancillary recon unit (compare: balloon corps) is well within the power to raise Armies or a Navy. As would be a carrier or transport unit under Army/Navy command.

The line between that and the modern USAF is of course heavily blurred - this is an instance of the sorites paradox. But I think having a separate chain of command is a major factor in saying the USAF is no longer “incident to” the army or navy, as are independent line items on the budget.

~Max

The fundamental problem with this line of thought is that it takes the approach that anything not explicitly mentioned or called out in the Constitution is therefore unconstitutional if the Federal government enacts it.

This is patently ridiculous. That’s not how the document works, first of all. At its core, it does two things- first, it broadly lays out the structure of the Federal government and its relationship with the States, and second it defines what the government CANNOT do.

It’s not and never has been a detailed blueprint of everything the Federal government can do, nor is the absence of something in the Constitution ever been interpreted as a prohibition on doing something. In fact, the “necessary and proper” clause and the 10th Amendment seem like proof against that interpretation.

The question is whether the air force is considered a land force, and I suggest that it is not.

After reaching that conclusion, I ask whether the air force as it currently exists is considered necessary and proper in order to carry into effect the power of raising and regulating Armies or a Navy.

~Max

That is my approach, spot-on! I’m quite honestly shocked that you disagree, because the notion of the federal government being rather strictly limited to enumerated powers is one of the core principles of constitutional theory. Maybe we can have a separate topic about that, I’m not going to get into it right now.

(I could be wrong though, I’m not a lawyer.)

~Max

Maybe if you’re some kind of extremist loon, but ~250 years of actual experience shows that it’s never been interpreted like that in the real world.

Okay, just of the top of my head, McCulloch v. Maryland

“This government is acknowledged by all, to be one of enumerated powers. The principle, that it can exercise only the powers granted to it, would seem too apparent, to have required to be enforced by all those arguments, which its enlightened friends, while it was depending before the people, found it necessary to urge; that principle is now universally admitted.”

~Max

I don’t follow. If the balloon unit falls permissibly within the definition of “navy” and “armies”, then spinning it off as it’s own branch is fine. If it doesn’t fall permissibly within the definition of “navy” and “armies,” then it’s impermissible.

I don’t know enough about military terminology to work through this example. But the move from single balloon team attached to an artillery battery to a balloon unit that is organized separately to a separate “balloon” branch of the army to a new “Balloon Force” – nothing in there implicates the constitution.

Put differently, my understanding is that a modern aircraft carrier force has a separate “carrier air wing” with its own command structure up to the group commander (separate from the navy folks who do boat stuff). I think you think that’s fine as part of the navy. But change the name and the uniforms and it’s a constitutional violation? No.

As I said it’s the sorites paradox so I can’t give you a hard line. But I think the chain of command is a really important factor. If the troop is no longer reporting to an army officer on the ground, but now reports to their own air force officers and a separate air force chain of command?

I think a carrier force is fine as necessary and proper for maintaining a modern navy (even as long-range aircraft slowly make it less necessary). There is a unified command, whether it’s technically an airman or seaman calling the shots it is clear that the whole operation is distinctly a naval force, so far as the constitution is concerned.

~Max

Saying that the USAF is unconstitutional because the Founding Fathers failed to foresee that people could fly some day seems like the epitome of pendatic nitpicking.

Why do you feel that way? It is based on land. The members of the air force sleep on land, eat on land, visit their spouses on land, and when ready for training/combat, they enter a contraption, situated on the land, and use it to fly into the air for training/combat.

I mean, the balloon example. If a branch of the army can use balloons, which you agree is constitutional, why can’t a branch use airplanes? And if it becomes more convenient to make that branch a separate organizational unit, then why is that not a necessary and proper thing to do?