Space is Vast. So is the Administration’s Mission Authorization Proposal

At the end of last year, the Biden administration released a draft bill for Congress to consider passing into law.  This legislative proposal is for so-called “mission authorization.”  Under the  proposal, the Departments of Commerce and Transportation (via the FAA) would regulate all space activities that are not currently under some other agency’s authority.  New and novel operations such as space habitats, asteroid mining, and lunar construction would require federal licenses.

Satellite remote sensing, satellite communications, and commercial launches and reentries already require licenses.  If Congress passed the proposal as a law, the FAA would acquire authority over all human spaceflight and Commerce would regulate unmanned activities, such as robotic in-space servicing, assembly, and manufacturing, and debris removal.

Senator Kyrsten Sinema of Arizona said that although she was glad to see the administration working on the issue, she thought it contained “numerous ambiguities, new undefined terms, and broad grants of open-ended authority.”  As Space News noted, she did not elaborate on these concerns.  Perhaps the Senator meant the same thing as the courts do, when they turn a jaundiced eye on impermissibly broad grants of open-ended authority.

One example from the proposal is the administration’s request that the FAA be able to issue licenses and thus regulate human space activities consistent not only with public health and safety (among other things) as it does now, but consistent with the ambiguous, undefined, broad, and open-ended “national interests.”  Although the administration’s accompanying explanation states licensing in accordance with national interests would allow the FAA to ensure other U.S. interests than national security and foreign policy interests are addressed in licensing, particularly those associated with the U.S. civil space program, planetary protection, and lunar heritage sites, it couches this in terms that make it clear that these are examples, not an exhaustive list.  National interests could extend further.

In short, the administration seeks unfettered authority for Commerce and the FAA to regulate as they see fit.  Because the Constitution assigns the task of making major legislative policy decisions to the elected members of Congress, and because agency personnel are not elected, this part of the proposal could run afoul of the non-delegation doctrine and raise issues under the major question doctrine.

The FAA currently issues launch licenses consistent with “consistent with the public health and safety, safety of property, and national security and foreign policy interests of the United States.”  What more could “other national interests’ mean?  That the FAA gets to tell businesses what investments to make?  What to pay their workers?  How much they may charge?

Many people hold the view that they know what’s best for others.  Some of them work for the government.  Government personnel have their own policy views, but those views haven’t been subjected to the crucible of an election or the give and take of legislative negotiation in Congress.The Constitution charges Congress with writing the laws and the Executive Branch with carrying them out. How is it that Congress should be able to turn over such wholesale legislative responsibilities to the Executive Branch?  Here, the Biden administration would have Congress delegating its legislative powers to the Executive without restraint. “Other national interests” could mean anything. (Don’t ask me, please, what I think of the FCC’s “public interest” authority.)

The non-delegation doctrine.  The non-delegation doctrine is a rule the courts don’t apply frequently.  The doctrine says that because the Constitution grants Congress the power to write laws–to legislate, in other words–that Congress can’t delegate that authority to the Executive Branch without limit.  It first appeared in the sick chicken case (“Schechter“), which some of us may remember from law school.  In Schechter, the Court took issue with the New Deal legislation Roosevelt asked for, noting that “Congress cannot delegate legislative power to the President to exercise an unfettered discretion to make whatever laws he thinks may be needed or advisable for the rehabilitation and expansion of trade or industry.”  After that case, Congress started passing more limited laws, laws which did fetter the Executive’s discretion, and the Supreme Court started upholding more limited delegations of legislative powers.  We only have to look around us at the EPA, the FAA, the FCC, NOAA, and all the other agencies with the power to write regulations with the force of law to see the results.

It still lives. Schechter is not completely dead. According to legal scholar Jonathan Adler, Justice Kavanaugh, although declining to hear a non-delegation challenge, suggested in his separate opinion, that

he is ready to reconsider the Court’s nondelegation precedents, particularly in the context of “major questions.” Among other things, this suggests the Court may be more willing to revisit nondelegation in the context of a major regulatory initiative than in the context of a focused criminal statute–think net neutrality or greenhouse gas regulation as opposed to sex offender registration.

Adler quotes directly from Kavanaugh’s opinion:

Justice Rehnquist opined that major national policy decisions must be made by Congress and the President in the legislative process, not delegated by Congress to the Executive Branch.

In the wake of Justice Rehnquist’s opinion, the Court has not adopted a nondelegation principle for major questions. But the Court has applied a closely related statutory interpretation doctrine: In order for an executive or independent agency to exercise regulatory authority over a major policy question of great economic and political importance, Congress must either: (i) expressly and specifically decide the major policy question itself and delegate to the agency the authority to regulate and enforce; or (ii) expressly and specifically delegate to the agency the authority both to decide the major policy question and to regulate and enforce. [citations omitted]

The opinions of Justice Rehnquist and Justice Gorsuch would not allow that second category—congressional delegations to agencies of authority to decide major policy questions—even if Congress expressly and specifically delegates that authority. Under their approach, Congress could delegate to agencies the authority to decide less-major or fillup-the-details decisions.

Like Justice Rehnquist’s opinion 40 years ago, Justice Gorsuch’s thoughtful Gundy opinion raised important points that may warrant further consideration in future cases.

(Emphasis added). Adler concludes with the observation:  “If that’s not an invitation for litigants to bring additional non-delegation challenges, I do not know what is.”  In other words, were the FAA to attempt to use its new authority to implement regulations or issue license conditions to, for example, prohibit habitat operators from allowing gambling or lunar amusement parks from offering personal winged glide flights in domed craters, because of a national interest in U.S. citizens not wasting their money under the FAA’s national interest authority, the Supreme Court might be willing to entertain an operator’s lawsuit against the FAA and strike that portion of the law.  What would save everyone a lot of money, however, would be if Congress avoided adopting that language in the first place.