Thursday, February 1, 2007
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?
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.