# The United States Air Force is unconstitutional **URL:** \ **Category:** Great Debates\ **Created:** [July 27, 2021, 6:31pm UTC](https://boards.straightdope.com/t/the-united-states-air-force-is-unconstitutional/947441 "2021-07-27T18:31:30Z")\ **Posts on this page:** 20\ **Page:** 1
**Author:** ![Max\_S](https://avatars.discourse-cdn.com/v4/letter/m/46a35a/32.png) [@Max\_S](https://boards.straightdope.com/u/Max_S)\ **Post date:** [July 27, 2021, 6:31pm UTC](https://boards.straightdope.com/t/the-united-states-air-force-is-unconstitutional/947441/1 "2021-07-27T18:31:30Z")
Continuing the discussion from [Is the Internet a Post Road?](https://boards.straightdope.com/t/is-the-internet-a-post-road/946714/37): > **background of this discussion (click to show/hide)** > > > > [@What's the worst thing conservatives have to fear?](https://boards.straightdope.com/t/whats-the-worst-thing-conservatives-have-to-fear/939345/111): > > > > > > 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. > > > > > [@What's the worst thing conservatives have to fear?](https://boards.straightdope.com/t/whats-the-worst-thing-conservatives-have-to-fear/939345/112): > > > > > > Do you figure the US Army Air Corps was okay before it split off into a separate US Air Force? > > > > > [@What's the worst thing conservatives have to fear?](https://boards.straightdope.com/t/whats-the-worst-thing-conservatives-have-to-fear/939345/113): > > > > > > I’m not an expert on the history of the air force, but I would say very early operations could be covered by the necessary and proper clause as incident to the army forces. Thinks like early reconnaisance missions under direct command of army operations. But by the time the air force had its own chain of command, its own regulations, and its own line item on the federal budget, it was unconstitutional. > > > > > > ~Max > > > > > [@What's the worst thing conservatives have to fear?](https://boards.straightdope.com/t/whats-the-worst-thing-conservatives-have-to-fear/939345/114): > > > > > > So you also are of the opinion that the Coast Guard and Space Force are also unconstitutional? > > > > > [@What's the worst thing conservatives have to fear?](https://boards.straightdope.com/t/whats-the-worst-thing-conservatives-have-to-fear/939345/115): > > > > > > The space force, unconstitutional. The coast guard is considerably more complicated, I think it is consitutional. It originally pre-dates the navy (and was part of the treasury) and can be considered a naval force, but the modern incarnation actually operates as a service of the navy (like the marines) during wartime and a part of the dept. of homeland security otherwise. > > > > > > ~Max > > > > > [@What's the worst thing conservatives have to fear?](https://boards.straightdope.com/t/whats-the-worst-thing-conservatives-have-to-fear/939345/117): > > > > > > There were [balloons.](https://en.wikipedia.org/wiki/Montgolfier_brothers) 😁 > > > > > [@What's the worst thing conservatives have to fear?](https://boards.straightdope.com/t/whats-the-worst-thing-conservatives-have-to-fear/939345/118): > > > > > > I think the only American who considered the prospects of baloon warfare was Franklin. It didn’t make it into the constitution, but as I wrote above, early reconnaisance missions could be covered as incident to army operations. > > > > > > ~Max > > > > > [@What's the worst thing conservatives have to fear?](https://boards.straightdope.com/t/whats-the-worst-thing-conservatives-have-to-fear/939345/120): > > > > > > > [@What's the worst thing conservatives have to fear?](https://boards.straightdope.com/t/whats-the-worst-thing-conservatives-have-to-fear/939345/115): > > > > > > > > part of the dept. of homeland security otherwise. > > > > > > The Department of Homeland Security is in the Constitution? Or has an amendment added it to the Constitution? > > > > > > […] > > > > > [@What's the worst thing conservatives have to fear?](https://boards.straightdope.com/t/whats-the-worst-thing-conservatives-have-to-fear/939345/123): > > > > > > > [@What's the worst thing conservatives have to fear?](https://boards.straightdope.com/t/whats-the-worst-thing-conservatives-have-to-fear/939345/120): > > > > > > > > The Department of Homeland Security is in the Constitution? Or has an amendment added it to the Constitution? > > > > > > It’s not a question of whether a specific cabinet department is explicitly provided for in the constitution ( _none_ are, but Art II section 2 provides for departments in general). It’s a question of whether the government was granted the power to do whatever the federal law attempts to do. I would say the USCG has two functions, a pure military function, and a law enforcement function. > > > > > > As a military service the USCG contributes to the common defense of the United States. It operates as part of the Navy of the United States during wartime and special situations, and as a sort of reserve force otherwise. Article I section 8 grants Congress the power to raise taxes for the common defense, to provide and maintain a Navy, and to govern/make rules for naval forces. Article II section 2 designates the President as the commander of the Navy, and by extension, the USCG when operating as part of the Navy. > > > > > > Unique among military services, the USCG also operates as federal law enforcement. Hence its organization under the Department of Homeland Security (in peacetime). In this role, as with all federal law enforcement agencies, the USCG derives its power to enforce federal law directly from the President. The President, in turn, is granted exclusive power to enforce laws by Art. II section 1, which vests _the_ executive Power in _a_ President (the executive power being the power to literally execute the law, therefore encompassing law enforcement). Article I section 8 grants Congress the explicit powers to, among other things, set (customs) duties, to regulate foreign commerce, to establish an uniform rule of naturalization, define and punish piracy and felonies committed on the high seas. Congress also has the power to make all laws necessary and proper for carrying into execution those powers, or even for carrying into execution the President’s executive power. I say the establishment of a department for enforcing federal law on the high seas and waters subject to U.S. jurisdiction falls within Congress’s powers. > > > > > > […] > [@Is the Internet a Post Road?](https://boards.straightdope.com/t/is-the-internet-a-post-road/946714/31): > > And USAF is non-constitutional as airforces are not mentioned there? […] > [@Is the Internet a Post Road?](https://boards.straightdope.com/t/is-the-internet-a-post-road/946714/36): > > This is my opinion, yes. [I have said so before](https://boards.straightdope.com/t/whats-the-worst-thing-conservatives-have-to-fear/939345/111) [ed. note: see background spoiler above], but I also mentioned it (less explicitly) upthread. > > ~Max > [@Is the Internet a Post Road?](https://boards.straightdope.com/t/is-the-internet-a-post-road/946714/37): > > Congress has the power to raise and support armies. Why does an army have to stay out of the air? 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 ---
**Author:** ![mikecurtis](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/mikecurtis/32/3284_2.png) [@mikecurtis](https://boards.straightdope.com/u/mikecurtis)\ **Post date:** [July 27, 2021, 6:45pm UTC](https://boards.straightdope.com/t/the-united-states-air-force-is-unconstitutional/947441/2 "2021-07-27T18:45:14Z")
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. ---
**Author:** ![furryman](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/furryman/32/99_2.png) [@furryman](https://boards.straightdope.com/u/furryman)\ **Post date:** [July 27, 2021, 6:46pm UTC](https://boards.straightdope.com/t/the-united-states-air-force-is-unconstitutional/947441/3 "2021-07-27T18:46:40Z")
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. ---
**Author:** ![Pleonast](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/pleonast/32/1183_2.png) [@Pleonast](https://boards.straightdope.com/u/Pleonast)\ **Post date:** [July 27, 2021, 6:47pm UTC](https://boards.straightdope.com/t/the-united-states-air-force-is-unconstitutional/947441/4 "2021-07-27T18:47:38Z")
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. ---
**Author:** ![Procrustus](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/procrustus/32/2994_2.png) [@Procrustus](https://boards.straightdope.com/u/Procrustus)\ **Post date:** [July 27, 2021, 6:48pm UTC](https://boards.straightdope.com/t/the-united-states-air-force-is-unconstitutional/947441/5 "2021-07-27T18:48:13Z")
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 > **[United States Army Air Corps](https://en.wikipedia.org/wiki/United_States_Army_Air_Corps)** > > Pages for logged out editors learn more > > > > The United States Army Air Corps (USAAC) was the aerial warfare service component of the United States Army between 1926 and 1941. After World War I, as early aviation became an increasingly important part of modern warfare, a philosophical rift developed between more traditional ground-based army personnel and those who felt that aircraft were being underutilized and that air operations were being stifled for political reasons unrelated to the... ---
**Author:** ![Max\_S](https://avatars.discourse-cdn.com/v4/letter/m/46a35a/32.png) [@Max\_S](https://boards.straightdope.com/u/Max_S)\ **Post date:** [July 27, 2021, 6:54pm UTC](https://boards.straightdope.com/t/the-united-states-air-force-is-unconstitutional/947441/7 "2021-07-27T18:54:44Z")
> [@mikecurtis](#): > > It’s usually justified under the _necessary and proper_ clause in section 8. As to “provide for the common defense”. 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 ---
**Author:** ![Max\_S](https://avatars.discourse-cdn.com/v4/letter/m/46a35a/32.png) [@Max\_S](https://boards.straightdope.com/u/Max_S)\ **Post date:** [July 27, 2021, 7:02pm UTC](https://boards.straightdope.com/t/the-united-states-air-force-is-unconstitutional/947441/8 "2021-07-27T19:02:31Z")
> [@Pleonast](#): > > Tanks are unconstitutional as well, since there’s no mention of motorized forces either. Submarines, too; underwater-borne forces are not explicitly described. 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 ---
**Author:** ![Falchion](https://avatars.discourse-cdn.com/v4/letter/f/a88e57/32.png) [@Falchion](https://boards.straightdope.com/u/Falchion)\ **Post date:** [July 27, 2021, 7:09pm UTC](https://boards.straightdope.com/t/the-united-states-air-force-is-unconstitutional/947441/9 "2021-07-27T19:09:14Z")
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: > [@furryman](#): > > To be frank I feel that one of the reasons we won WW2 was because of the Air Force. This is wrong, of course, but sort of illustrates my point. ---
**Author:** ![UltraVires](https://avatars.discourse-cdn.com/v4/letter/u/ecccb3/32.png) [@UltraVires](https://boards.straightdope.com/u/UltraVires)\ **Post date:** [July 27, 2021, 7:14pm UTC](https://boards.straightdope.com/t/the-united-states-air-force-is-unconstitutional/947441/10 "2021-07-27T19:14:22Z")
> [@Max\_S](#): > > See also where the Constitution empowers Congress to regulate the _land and naval_ forces - they did not anticipate an airborne fighting force. 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. ---
**Author:** ![mikecurtis](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/mikecurtis/32/3284_2.png) [@mikecurtis](https://boards.straightdope.com/u/mikecurtis)\ **Post date:** [July 27, 2021, 7:14pm UTC](https://boards.straightdope.com/t/the-united-states-air-force-is-unconstitutional/947441/11 "2021-07-27T19:14:30Z")
> [@Max\_S](#): > > The preamble, where “provide for the common defence” is found, is not considered a valid grant of power for the necessary & proper clause. 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. ---
**Author:** ![Max\_S](https://avatars.discourse-cdn.com/v4/letter/m/46a35a/32.png) [@Max\_S](https://boards.straightdope.com/u/Max_S)\ **Post date:** [July 27, 2021, 7:14pm UTC](https://boards.straightdope.com/t/the-united-states-air-force-is-unconstitutional/947441/12 "2021-07-27T19:14:57Z")
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 ---
**Author:** ![bump](https://avatars.discourse-cdn.com/v4/letter/b/7c8e57/32.png) [@bump](https://boards.straightdope.com/u/bump)\ **Post date:** [July 27, 2021, 7:18pm UTC](https://boards.straightdope.com/t/the-united-states-air-force-is-unconstitutional/947441/13 "2021-07-27T19:18:17Z")
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. ---
**Author:** ![Max\_S](https://avatars.discourse-cdn.com/v4/letter/m/46a35a/32.png) [@Max\_S](https://boards.straightdope.com/u/Max_S)\ **Post date:** [July 27, 2021, 7:22pm UTC](https://boards.straightdope.com/t/the-united-states-air-force-is-unconstitutional/947441/14 "2021-07-27T19:22:15Z")
> [@UltraVires](#): > > 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. 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 ---
**Author:** ![Max\_S](https://avatars.discourse-cdn.com/v4/letter/m/46a35a/32.png) [@Max\_S](https://boards.straightdope.com/u/Max_S)\ **Post date:** [July 27, 2021, 7:24pm UTC](https://boards.straightdope.com/t/the-united-states-air-force-is-unconstitutional/947441/15 "2021-07-27T19:24:24Z")
> [@bump](#): > > 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. 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 ---
**Author:** ![bump](https://avatars.discourse-cdn.com/v4/letter/b/7c8e57/32.png) [@bump](https://boards.straightdope.com/u/bump)\ **Post date:** [July 27, 2021, 7:25pm UTC](https://boards.straightdope.com/t/the-united-states-air-force-is-unconstitutional/947441/16 "2021-07-27T19:25:36Z")
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. ---
**Author:** ![Max\_S](https://avatars.discourse-cdn.com/v4/letter/m/46a35a/32.png) [@Max\_S](https://boards.straightdope.com/u/Max_S)\ **Post date:** [July 27, 2021, 7:26pm UTC](https://boards.straightdope.com/t/the-united-states-air-force-is-unconstitutional/947441/17 "2021-07-27T19:26:47Z")
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 ---
**Author:** ![Falchion](https://avatars.discourse-cdn.com/v4/letter/f/a88e57/32.png) [@Falchion](https://boards.straightdope.com/u/Falchion)\ **Post date:** [July 27, 2021, 7:28pm UTC](https://boards.straightdope.com/t/the-united-states-air-force-is-unconstitutional/947441/18 "2021-07-27T19:28:12Z")
> [@Max\_S](#): > > 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. 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. ---
**Author:** ![Max\_S](https://avatars.discourse-cdn.com/v4/letter/m/46a35a/32.png) [@Max\_S](https://boards.straightdope.com/u/Max_S)\ **Post date:** [July 27, 2021, 7:33pm UTC](https://boards.straightdope.com/t/the-united-states-air-force-is-unconstitutional/947441/19 "2021-07-27T19:33:36Z")
> [@Falchion](#): > > 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 ---
**Author:** ![Velocity](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/velocity/32/18006_2.png) [@Velocity](https://boards.straightdope.com/u/Velocity)\ **Post date:** [July 27, 2021, 7:35pm UTC](https://boards.straightdope.com/t/the-united-states-air-force-is-unconstitutional/947441/20 "2021-07-27T19:35:52Z")
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. ---
**Author:** ![UltraVires](https://avatars.discourse-cdn.com/v4/letter/u/ecccb3/32.png) [@UltraVires](https://boards.straightdope.com/u/UltraVires)\ **Post date:** [July 27, 2021, 7:36pm UTC](https://boards.straightdope.com/t/the-united-states-air-force-is-unconstitutional/947441/21 "2021-07-27T19:36:17Z")
> [@Max\_S](#): > > The question is whether the air force is considered a land force, and I suggest that it is not. 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? [Next page](https://boards.straightdope.com/t/the-united-states-air-force-is-unconstitutional/947441.md?page=2)