The United States Air Force is unconstitutional

Great Debates
102

An article that discusses that question regarding the Space Force (and by extension, the Air Force).
Some highlights:

  1. Air forces historically were permitted within the Army and Navy. If the US Army Air Force or Naval and Marine air wings are not unconstitutional as part of the Army or Navy, why would they be unconstitutional as independent organizations?
  2. The Constitution’s Necessary and Proper Clause ( Article I, Section 8, Clause 18) would allow Congress to establish an independent Air Force if needed and such an act wouldn’t “infringe on federalism or on other aspects of the constitutional structure.”
  3. The existence of an Air Force or Space Force is largely irrelevant from a Constitutional standpoint. The point is that the Constitution would seem to specify that 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.
103

Good question.

Even at the time of the revolutionary war, shot from cannons and muskets flew through the air to reach their destinations. The cannonballs and musket shot are not considered to be an air force. Neither are rockets; these are considered extensions of the forces which fired them. Why not think of a B-52 as a ‘manned rocket’, or better yet a ‘manned cannonball’ (since those were around in 1792)? Why not therefore consider a B-52 a projection of land force? I admit to being put on the defensive here.

There are two counterarguments I will put forth.

First, unmanned projectiles such as musketballs, cannon shot, and (simple) rockets are not proper military forces. They are mere objects propelled by force. A projectile is, in my view, quite literally a projection of military force, and should not be considered a military force in its own right. Thus the analogy fails, a cannon ball and a manned B-52 are critically different in that one may project military force in its own right. On the battlefield the manned aircraft has the capability to make or at least carry out decisions, to adapt to the circumstances at hand. As a military force it is not to be compared with a projectile, a proper analogy would recognize that aircraft have projectiles of their own. A B-52 is more like an artillery operating in the air, than a manned projectile. Kamikaze is a manned projectile. Guided missiles are comparable to manned projectiles. Planes are not.

Second I present a familiar argument, we distinguish between land and naval and therefore must distinguish between land and air. A naval force is not a particular kind of land force you find at sea, it is a distinct category of military force. Once you put a group of soldiers (a land force) out to sea, and equip them with the tools to carry out naval warfare, they become a naval force. And so with airmen aboard aircraft: once flown the force constitutes an air force, and not a particular kind of land force amassed in the air.

~Max

104

I don’t think it would. Taking what I wrote just above,

On the battlefield the manned aircraft has the capability to make or at least carry out decisions, to adapt to the circumstances at hand.

I think combat drones, like a physical crew responding to direct orders, qualify as a military force in their own right. The type of warfare combat drones undertake is aerial warfare, unlike Soviet teletanks which I would categorize as ground warfare. Therefore I categorize combat drones as contributing to air force.

~Max

105

If ground troops aren’t involved in the mission or broader objective, it’s not really support any more, is it?

The artillery example I have addressed in a previous post, #103.

~Max

106

I’m well aware. I do not interpret the taxing clause to imply such a spending power. In a previous thread, I was explicit that I do not think such programs now justified by the spending power are constitutional (I mentioned New Deal and Great Society).

Probably for that reason, I did not even consider whether the spending power could justify the USAF independently. Now that you have mentioned it, if I thought the spending power was the right interpretation of the taxing clause (which I don’t), I would agree that the USAF is constitutional.

~Max

107

It’s not clear to me that “armies” as referred to in the Constitution are required to be land forces, as opposed to a generic term for an armed military force.

The connotation that the military has divided commands based on how the troops are deployed is a modern misconception. Eighteenth century distinctions between the army and navy is based on how they were funded in England historically: levied troops provided by the gentry vs crown funds buying ships. The monarch was restricted by custom in how long troops could be levied. This is a source of the funding distinction seen in the US Constitution, not the conveyances of those troops.

Article I, Section 8, in part, says:

To define and punish Piracies and Felonies committed on the high Seas, and Offences against the Law of Nations;

To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;

To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years;

To provide and maintain a Navy;

To make Rules for the Government and Regulation of the land and naval Forces;

To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;

To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;

It seems to say that, in general, armed forces (“Armies”) cannot be funded for more than two years at a time, except for a naval force (“Navy”). That is, there is a limitation on the funding the military, except for ships.

We do see a distinction between “Land” and “Water”, but that is about the rules of war, not the military forces themselves. And we see a distinction between “land” and “naval”, but that is about organization, not funding. I suppose a very literal interpretation would say Congress can fund the armies, but only organize ones based on land; I don’t find that very convincing. A better interpretation is that “land and naval” is a description of “Forces” and not a limitation on Congress’ power. The Constitution is a foundational document providing general guidance, not a law code with explicit rules, despite the some lawyers unable to grasp the difference.

108

I was looking at them as ground troops who use more sophisticated equipment to accomplish the objective.

Take the Canada example again. In 1787, the troops would have to march from Buffalo to Toronto to dislodge the Canadian Army from Toronto. In 2021, the very same group (if that makes a difference) gets into airplanes and bombs Toronto with airplanes and dislodges the Canadian Army from Toronto by that action alone, obviating the need for the ground troops to march to Toronto.

That seems to be the best sort of support one could imagine. A support so strong that there is no need for the original action. But under your definition, it is not support. Okay, what if one person was airdropped into Toronto after the bombing? Was the bombing then constitutional because it was in support of the one soldier who occupied an empty Toronto?

109

Erm, inter-war planners from the 20s called, they want their battle plans back.

But seriously, that’s what people THOUGHT airplanes and bombs would make wars like. Spoiler alert: it actually did not go that way.

You can’t occupy territory or even eliminate an enemy force without boots on the ground.

110

I am assuming an objective to force the Canadian Army to retreat from Toronto. They do so after a massive aerial bombardment. Unconstitutional according to Max.

If they do as you say and stay, and we push forward with ground troops and then dislodge the Canadian Army, the previous aerial bombardment becomes retroactively constitutional.

If you think the example is silly that is because it is. We are talking about attacking Toronto after all.

111

As you quote, Article I says explicitly, “To make Rules for the Government and Regulation of the land and naval Forces.”

I’m not seeing how that can be squared with @Max_S’s “The federal government certainly does not have the power to regulate the military however it wishes…” He hasn’t addressed that but I remain curious.

112

Not to speak for Max, but say Congress imposed racial segregation on the military or allowed for summary executions for stealing food from the mess hall. Even though the grant of power to make rules for the military seems absolute, I doubt that things such as these would pass muster (hehe).

113

Pass muster with whom? The Supreme Court? Because that’s the only body that can decide what’s unconstitutional, and they better come up with some reason for ignoring the plain words. Or are you suggesting that they’ll just use the “it’s icky” provision?

114

Because that grant of power is tempered by the due process clause and subsequent amendments to the Constitution. Take this:

To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of particular States, and the Acceptance of Congress, become the Seat of Government of the United States,

You wouldn’t argue that racial segregation or summary executions could take place in the District because of “plain words.”

115

This is a nitpick, but I think it’s a generally more substantial nit than the entire premise of the OP.

There was no Canadian Army in 1787, as at that date Upper Canada was just a colony. An army stationed in Toronto at that time would have been the army of the Kingdom of Great Britain.

116

Fair enough. Please work with my flawed hypo. :slight_smile:

117

You’re good, I was just pointing out the historical fun fact that people used to think that’s how aerial bombardment wars would go but as we learned the hard way it’s a bit harder then that.

118

I agree with the other things you said, but I think my way is more direct. The Air Force is based on land. It simply, at times, takes to the air to fight or train, but it is based on land.

I suppose we could get into a textualist argument once we have interstellar armies, but for now, I think the definition fits very well and I personally, YMMV, see absolutely no reason to say that the Air Force is “based” in the air, or otherwise not a “land force” of the United States. It is simply an army that uses as its primary weapon a manned machine that flies in the air, little different than an artillery unit that used non-manned weapons in the air, or a traditional infantry unit whose primary weapon (a bullet) flies through the air.

119

Congress must reserve to the States the actual training and appointment of officers for militia, although it may prescribe training regulations. Habeas Corpus is protected even for the military, except in times of rebellion or invasion. Congress may not redefine the crime of treason, because it is defined by the Constitution; punishment for treason “shall not work Corruption of Blood, or Forfeiture except during the Life of the Person attainted.” Congress may not disarm the militia (by abusing its power to federalize the militia, and to regulate the militia when federalized). During peacetime Congress is prohibited from quartering soldiers in a house without the owner’s consent. Congress may not abridge the right of military members to be indicted by a grand jury before being held to answer for a capital or otherwise infamous crime, except in actual service during times of war or public danger. Congress may not issue regulations which abridge military members’ immunity from double jeopardy; nor may Congress by regulation compel testimony against oneself.

I’m sure there are more limitations…

N/A, all of the above are lifted from the constitution itself. That’s kind of my whole point here.

I agree with you that regulation of the land forces does not trigger the two-years limit on appropriations. There’s no reason to rewrite/reauthorize the UCMJ every two years, if that’s what you are getting at. So long as the regulations dealing with drawing funds from the treasury are subject to appropriations for that purpose, it should be fine.

Regarding construction of the word ‘support’, certainly you must agree the armies clause does not give Congress the power to hire a foreign army with a contract greater than two years. The people who drafted and ratified the Constitution were acutely aware of the European practice of hiring mercenaries for their standing armies, for example German ‘Hessian’ auxiliaries used by England in the Revolutionary War. It was one of the reasons listed in the Declaration of Independence, and precisely the behavior guarded against by the armies clause. Any reasonable interpretation would conclude that the power to raise and support armies does not extend to contracting a mercenary army for a period exceeding two years.

It is only one step removed to conclude that the power to raise and support armies does not extend to contracts where equipment is rented for a term exceeding two years. Nor may it extend to contracts exceeding two years involving land or facilities or patent licenses necessary to support an army.

That does not mean it is unconstitutional for the government to do any of these things. The government is well within its right to rent out a warehouse for a period exceeding two years; such a rental may be constitutional pursuant to the separate power to erect needful buildings such as magazines, arsinals, dock-yards, etc (Art I, sec. 8, cl. 17), not the power to raise and support armies.

The power cited by the Attorneys General is the spending clause, which I have previously written that I personally think is a misinterpretation of the taxing power.

~Max

120

I suppose it would depend on the argument. :confused:

~Max

121

Sure. I’m not sure of the status of the case (cert has either been granted or pending) about the male only draft. If @Exapno_Mapcase was correct, the opinion would be a paragraph long denying any relief if Congress had the absolute power to make any rules it wanted for the armed forces.