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Thursday, February 1, 2007

More on the Independent Air Force
Mike Rappaport

Ilya Somin has responded to my two posts on the independent Air Force under originalism.  I am not entirely sure I understand Ilya's position or that he understands mine.  Perhaps we are having a problem of communication. 

To respond to his argument and to clarify matters, let me restate my position in a more elaborated form:

1. The first question to decide is whether the constitution authorizes any particular equipment, weapon, or power, as part of the army or navy.   If, for some reason, a power is the type that only the Navy could use, then it could not be made part of the Army.    

2. If a power could be exercised by the Navy, then Congress is free, obviously, to assign it to the Navy.   

3. There is no limitation preventing Congress from creating two separate Navies that are indepenent of one another.  So long as the powers exercised by both of those Navies are actually Navy powers, within the meaning of the Constitution, Congress can assign them as it wishes to different Navies -- say Navy A and Navy B.  They would both be Navies under the Constitution.

4. Congress could choose to call Navy B an Air Force and the arrangement would be equally constitutional. 

What I think this shows is that if the powers exercised by the Air Force were those that could be exercised by the Navy, then there would be no constitutional objection to creating an Air Force.

Similarly, if the powers exercised by the Air Force are those that can only be exercised by the Army, then there is also no constitutional objection to creating an Air Force.  The only difference is that the two year appropriations limitations would apply to the Air Force in this case.  Since the Air Force probably undertakes actions that are both Army and Navy oriented, it should probably be subject to the two year appropriation limitation. 

Ilya claims that my argument “renders Congress’ power "to raise and support Armies" redundant. After all, if an independent Air Force can be justified by, in effect, considering it a separate Navy, why can't an independent Army be justified the same way?"
 
I must admit to being puzzled by this statement. What is the problem here? I thought that the Constitution clearly allowed an independent army. Why would anything need to justify that?

He continues:

The issue is not so much whether we "call something the Air Force as a statutory matter," but whether the military service in question is primarily focused on land (the Army) or sea (the Navy) power or whether it has a different focus entirely.

Exactly.  That was the point of my post.  If the Air Force could be made part of the Navy, because it involved Navy power, then it does not matter that it is called the Air Force and is independent. 

Ilya further continues:

"Airpower incorporated into the Army or the Navy as an adjunct to their efforts to wage war on land and sea does raise the same sorts of constitutional issues. Otherwise, the power to establish an Army would be redundant, and Congress could easily circumvent the constitutional requirement that Army appropriations cannot be authorized for more than two years at a time simply by calling all federal military forces a part of the Navy.

Again, I am puzzled by this.  My argument does not allow the Army appropriations provision to be circumvented.  The Army exercises powers that are, under the Constitution, Army powers.  Therefore, these powers are subject to the two year appropriation limitation, whether the entity exercising them is called an Army, an Air Force, or a Navy under federal statutes.

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Mike Rappaport
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Comments

Gee, I don't know: the Constitution authorizes Congress to raise "a" navy, not two navies. So why isn't the whole "Navy A" and "Navy B" scheme sort of suspect?

Posted by: y81 | Feb 2, 2007 6:19:22 AM

This continues not to answer the issue of whether Congress can constitutionally establish an Air Force absent a Navy or an Army.

Posted by: Alex | Feb 2, 2007 9:07:31 AM

Alex -- you are speaking imprecisely. Your earlier post spoke of an independent air force, which is an air force separate than a navy, not an an air force absent a navy. And this post does address an independent air force.

As for y81, the Constitution's description of "a Navy" easily includes two navies. Just as we could have the first army, the second army, the third army, which are all part of a single army, so with the Navy.

Posted by: Mike Rappaport | Feb 4, 2007 1:05:46 AM

An independent air force is one that is independent (i.e. exists without a navy or army). Your post continues not to answer that point. (Not independent in the sense of a separate department of the navy)

And just to be clear, my earlier post did not suggest what you imply -- here it is again:

Your post doesn't answer anything. Nobody is debating that you can create an Air Force as a subpart of the Navy (or Army if you prefer). The question is whether you can create an Air Force in the absence of a Navy or Army - in other words, an independent (and stand-alone) entity called "Air Force" as we have today. And so arguing that "independence" is irrelevant by simply relabeling a division of the Navy as "Air Force" doesn't address the issue. The point is that one could create something called "navy" (or "army") but then give it all of the weapons/equipment we usually associate with the Air Force. But doing that would make the text sort of meaningles

Posted by: Alex | Feb 4, 2007 4:27:24 PM

I am addressing whether one can create an independent air force -- one that is a separate department. My main point is that placing an air force within the organizational structure of the Navy or Army does not add one bit of constitutionality to one that does the same things but is separate from the control of the Army or Navy Secretaries.

Now, if you are concerned with whether an Air Force can do things that seem unrelated to the Army or Navy -- such as, let us say strategic bombing -- you are right that I don't address that (or even purport to address that). To my mind, that is not the question of an independent air force, but instead what the scope of the air force can be. But I will not argue semantics.

As for whether such powers would be constitutional, I think it turns on the meaning of Army in 1789. I certainly think that Army included the expansion of weapons to perform its functions. I also think that the Army could go and attack factories in cities and therefore using bombers to do so suggests that it would also be constitutional, but I have not attempted to answer this question in my post.

Posted by: Mike Rappaport | Feb 4, 2007 5:57:51 PM

Again, you made a point nobody disagreed with -- that the Air Force can exist as a department of the Navy or Army. If you wish to wish to call the Air Force "independent" because it exist as a department within either the Army or Navy yet doesn't report to person in charge of the Army and Navy so be it. But somehow you go further and make the leap that Congress is authorized to create an Air Force that can exist in the absence of an Army or Navy (to quote you: "My main point is that placing an air force within the organizational structure of the Navy or Army does not add one bit of constitutionality to one that does the same things but is separate from the control of the Army or Navy Secretaries."). You think this is not a problem because the key constitutional inquiry is whether the Air Force is actually exercising Army/Navy power circa 1789. Well if that's the right focus, there is absolutely no need call this entity an Air Force - since all it's doing is apparently exercising army or navy power. And if that's your point -- your "argument" -- well it's awfully silly because it proves nothing about the constitutionality of an entity called air force, exercising air force-like powers. After all, the text has to mean something, right? So we should probably stick to calling it an army or navy, rather than an air force.

Posted by: Alex | Feb 5, 2007 8:48:29 AM

Again, you made a point nobody disagreed with -- that the Air Force can exist as a department of the Navy or Army. If you wish to wish to call the Air Force "independent" because it exist as a department within either the Army or Navy yet doesn't report to person in charge of the Army and Navy so be it. But somehow you go further and make the leap that Congress is authorized to create an Air Force that can exist in the absence of an Army or Navy (to quote you: "My main point is that placing an air force within the organizational structure of the Navy or Army does not add one bit of constitutionality to one that does the same things but is separate from the control of the Army or Navy Secretaries."). You think this is not a problem because the key constitutional inquiry is whether the Air Force is actually exercising Army/Navy power circa 1789. Well if that's the right focus, there is absolutely no need call this entity an Air Force - since all it's doing is apparently exercising army or navy power. And if that's your point -- your "argument" -- well it's awfully silly because it proves nothing about the constitutionality of an entity called air force, exercising air force-like powers. After all, the text has to mean something, right? So we should probably stick to calling it an army or navy, rather than an air force.

Posted by: Alex | Feb 5, 2007 8:48:36 AM

Well, Alex, you can call my point silly, because it does not address the argument you are interested in, if you want to. But since I have been making the same point from the beginning, your correct response, upon reading it, should have been to agree with my point, which you don't think is all that significant, and to say you are interested in another point. That would have avoided these exchanges.

Posted by: Mike Rappaport | Feb 5, 2007 10:28:18 AM

My point is your argument didn't address anything. That's what makes it silly. And it didn't address anything because you obviously didn't bother to read the posts carefully(either on this Blog or by Ilya). You also didn't use the word "independent" precisely. But that all aside, I purposefully used the word "silly" because it was both apt and it was the exact same word you employed in your condescening and mocking post ("Bad Originalism") when responding to commentators (over at the Volokh Conspiracy) who were considering this issue of the Air Force's constitutionality.

Posted by: Alex | Feb 5, 2007 11:28:02 AM

I apologize for the spelling errors in my previous post.

Posted by: Alex | Feb 5, 2007 11:31:37 AM

I am sorry Alex, but I don't see the relevance of the distinction you are making. Independent is used in your guys' exchange in two different ways. You seem to agree with the way Professor Rappaport originally used the word – a separate airforce existing with a navy and army. However, you use the word “independent” differently and refer to an independent airforce as an airforce existing in the absence of an army or navy.

Although it is not the argument he was originally making, Professor Rappaport clearly addresses your use of the term “independent” in his reply to your comment. In addressing your issue, the important thing to look at is the powers of the army and the navy and whether the airforce's powers fit into either the army’s or navy’s powers. If so, an independent (as you use the term) airforce would be constitutional. Assuming the airforce is only exercising powers that fall within the army’s or the navy’s powers, the government is not doing anything that it is not permitted to do under the constitution by creating an airforce in the absence of a navy or army. Calling it an airforce is insignificant without looking further at the powers that are being exercised by the airforce. Thus, even in the absence of an army or navy, if the airforce is only exercising army and navy powers, an independent airforce is constitutional despite being called something other than army or navy. Of course, as Professor Rappaport argues, if the airforce is using army and navy powers then it should follow the stricter army appropriation procedures.

Of course, all of this begs the question of what are the powers of the navy and the army, and is the airforce exercising only army and navy power? As Professor Rappaport argues, this is more of a question of the scope of the army and navy power than whether the airforce can exist independent of the army or navy.

Posted by: CAT | Feb 5, 2007 6:13:07 PM

Cat,
I have obviously not be clear enough.
Point 1: Rappaport initially "responded" to a point that nobody disagreed with, namely that you could create a department within either the army or navy called "air force."
Point 2: If the constitutionality of an independent air force (one that exists in the absence of an army or navy) is tested against the type of power it exercises - just call it an army or navy (if indeed it is simply excerising army and/or navy powers as understood by persons (framers, etc.) circa 1789). The Constitution's text does not mention an air force. And if the text (and as most everyone agrees, especially so-called originialists) has a point we should probably stick with it and label it something new like "air force" when all it is doing is apparently acting as either an army or navy or both.
Point 3: If this independent air force (i.e. a separate department) is in fact exercising powers that we (modern folks) do not associate with the navy or army, it is not possible to justify its constitutionality on the basis of the "armies and navies" clause.

Posted by: Alex | Feb 6, 2007 9:19:12 AM

There are some typos in my last post
I have not "been" clear enough....
***
we should probably stick with it and "NOT" label it ...
***

sorry about that...

Posted by: alex | Feb 6, 2007 9:21:39 AM

I still don't see the relevance of the point that you are making in Point 2 above. Your argument seems to rely solely on the fact that the label "air force" is something different than the terms "navy" or "army." You seem to argue that if the air force is only exercising navy or army powers, then it should be called an army or a navy and not an air force. To coin a term, I think this distinction is "silly." You are looking at the label rather than the meaning behind the label. Would you argue that an air force, existing in the absence of an army or navy, is unconstitutional even if it is only excercising navy powers solely because it is called an air force? In such a case, the government is not exercising any powers that it is not permitted to exercise under the Constitution. It is only using a term. What if there was no army, but the government created the Green Berets. Would that be unconstitutional simply because the term Green Beret is different than the term Army? I tend to agree with originalists, and certainly can't speak for all of them, but I don't believe that many would look at words or terms in such a manner. Originalists don't just look at words or terms; they look behind the words or terms to obtain their meaning. A word or term alone without context is meaningless.

As for point 3, I agree that if powers are being exercised outside scope of army or navy powers than it could not be justified under the "armies and navies" clause. Originalists, however, would not look at what "modern folks" associate with army or navy. Originalists would look at the original meaning of the terms army and navy. Professor Rappaport addresses this above:

"I certainly think that Army included the expansion of weapons to perform its functions. I also think that the Army could go and attack factories in cities and therefore using bombers to do so suggests that it would also be constitutional, but I have not attempted to answer this question in my post."

Posted by: CAT | Feb 6, 2007 10:49:30 AM

Cat,
An inadvertent error in point 3 - yes originalists would look at the "original meaning" of the terms army and navy to determine the scope of their respective powers -- I reversed that -- I meant what us modern folks associate with the powers of the air force and then look back and say "hey looks like the Air Force of today is doing what the armies and/or navies of 1789 could do." You note: "As for point 3, I agree that if powers are being exercised outside scope of army or navy powers than it could not be justified under the "armies and navies" clause." -- That was the issue that others were debating in considering the constitutionality of the Air Force - one that Rappaport did not address (as he acknowledges).

My second point is that the only way Rappaport justifies the constitutionality of the air force vis-a-vis the armies and navies clause is by arguing that we look to see if it is exercising the powers of either the army or navy or both. And if so, then the air force is constitutional. But by going down that route, the air force is just an army (or navy) by another name. And you say, well it's silly to focus on labels. But the Constitution uses specific labels - army and navy - so we should use them. And your example of "Green Berets" is inapt because the Green Berets are a part of the Army. As I noted, nobody is debating whether you can create an Air Force which is part of the army or navy pursuant to the 'armies/navies clause.' As you point out text without context is meaningless, but if all this "air force" is doing is exercising army-like (or navy-like) power that implies there is nothing unique or important about the term "air force" that justifies its use.

An admittedly trivial example: we don't call the President -- Prime Minister of the United States -- even if that person were elected in the same manner as the President and was exercising the same powers that we associate with the President, right?

Posted by: Alex | Feb 6, 2007 1:41:36 PM

If this argument is getting specific, then it should be stated that the text says "armies" and "navies". It does not proclaim Army (singular) or Navy (singular). The fact that they are plural, at least from my point of view, dictates that more than one can be created. If more than one can be created, then do you really believe that the original founders would have meant for it to be Navy A or Navy 2. Previously, this discussion seemed to be an interesting perspective on interpretation. Now, it seems to have boiled down to across the board agreement, except for the name. Is it done?

Posted by: Chris Heinsen | Feb 6, 2007 2:55:28 PM