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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