Recently, the Mercatus Center published a paper of mine on how Article VI of the Outer Space Treaty is not self-executing. This means that Article VI’s call for the authorization and continuing supervision of some unidentified activities is not enforceable federal law and the executive branch may not rely on Article VI to deny private actors access to space.
One of the things I get asked is whether Congress’s grant to the FAA of an ambiguous authority over payloads doesn’t constitute the kind of legislative action that makes Article VI domestically enforceable. It doesn’t, as I explained in the paper and will discuss here. (If you want all the footnotes, citations, and links, the paper has them.)
The FAA licenses cargo carriers—the launch and reentry vehicles—that take cargo (called payloads) to and from orbit or outer space. Because lunar habitats, mining machines, and space tugs are objects, the FAA treats them as payload under the Commercial Space Launch Act, and then reviews them as part of its review of a launch or reentry operator’s application for a launch or reentry license. Although the FAA does not license or permit payloads or their operations, Congress charges the FAA under 51 U.S.C. § 50904 with conducting payload reviews before issuing a license. Specifically, the statute provides that if “no authorization, license or permit is required, the [FAA] may prevent the launch or reentry if the [FAA] decides the launch or reentry would jeopardize [among other things] . . . [a] foreign policy interest of the United States.”
There are three reasons that the FAA’s foreign policy authority does not mean the FAA may attempt to use its payload review to stop private operators on the basis of Article VI. Just as the president’s constitutional role in foreign policy does not give him the power to implement a non-self-executing treaty, the FAA’s statutory foreign policy authority also fails to provide the FAA the legislative power required to implement a non-self-executing treaty. Additionally, legislative history makes it clear that Congress did not intend the FAA to exercise regulatory authority over more than launch and reentry. Finally, for the FAA to deny a private operator access to space would usurp Congress’s role in making policy determinations such as what activities merit regulation and which agency should oversee those activities. Let us look look at each of these points one at a time.
Background. Congress charges the FAA under 51 U.S.C. § 50904 with conducting payload reviews before issuing a launch license. The FAA may prevent the payload’s launch or reentry under two conditions: (1) if the payload’s operation requires no authorization, license, or permit, and (2) if it would jeopardize, among other things, a foreign policy interest of the United States. Most payloads possess, at the very least, an authorization from the FCC for any necessary transmissions to the United States, thus making unnecessary any FAA consideration of foreign policy interests. However, because of the FAA’s Moon Express position, where the FAA indicated it had the authority to implement Article VI, we must look to the rest of the analysis.
The executive branch’s foreign policy authority is not interchangeable with legislative authority. To understand this, we must obtain guidance from the Supreme Court decision in Medellin. Although the Supreme Court recognized in Medellin that the Constitution vests the executive with foreign policy authority, such considerations did not allow the court to set aside first principles, and the Court found that the president could not engage in unilateral lawmaking when he tried to enforce the UN Charter without Congressional implementation. If the president’s constitutional role in foreign policy does not give him the ability to unilaterally enforce a treaty when Congress has not passed the necessary legislation, the FAA should not treat its foreign policy authority as vesting it with unilateral legislative powers either. The one is not a substitute for the other.
Legislative history. Next, when Congress granted the FAA authority to authorize and supervise the reentry of a reentry vehicle, it emphasized that the FAA was not to exercise its authority on orbit, further clarifying that Congress envisioned unregulated activities for which the FAA should not deny access to space. Unlike some other countries, the United States has not passed a law saying that anything anyone does anywhere in outer space requires federal oversight. Instead, Congress has taken a measured, incremental approach. So far, it has determined that launch, reentry, remote sensing, and satellite transmissions require authorization and supervision.
The FAA Does not Get to Name Itself the Regulator. Were the FAA to deny an operator access to space on the grounds of Article VI, it would be taking on the role of regulator—but deciding who that regulator should be is a decision that Congress makes. Indeed, indications so far suggest that Congress may have a different agency fill that role. Last year’s House bill named the Department of Commerce. Were the FAA to deny private actors access to space, it would be saying it was the space regulator.
The FAA Does not Get to Decide What Activities Require Federal Oversight. Most importantly, Congress may have different views than the FAA about what activities require regulation. This means the FAA and the rest of the executive branch must wait for Congress’s determination to learn what those activities are. As a matter of policy, Congress may determine that there are good reasons to expend government resources and taxpayer dollars on regulating a particular activity. Congress could say that bringing platinum-group minerals back to Earth will wreak havoc on the economy, and decide to set up an agency to oversee pricing. Or, it could decide that robotic mining of rocks in space really far away does not require regulation because no one lives on those rocks, they have no visitors, and no one will get hurt by the mining. Even if Congress ignores asteroid mining itself, it might forbid the reentry of anything large enough to make a crater the size of the Yucatan. There are a number of considerations that may lead to legislation and regulatory oversight. But they are not in Article VI of the Outer Space Treaty.
Just as there are serious activities that arguably require oversight, there are a host of other activities that don’t. SpaceX and Orbital ATK engage in orbital transportation without orbital transport licenses. One hears no lamentations over the lack of authorization of space tourists. Yet space tourists exist now. Lunar habitats and space mining do not; but when the time comes, only those activities identified by Congress require authorization.
It would seem to me that the degree to which the FAA has outreached its statutory authority is dwarfed by the degree to which this is so for the FCC, which has taken the requirement to license satellite transmitters as a mandate to govern unrelated issues.
The FCC views its “public interest” criteria as granting it that kind of authority. It is not correct.