Michael Rappaport on the Constitutionality of the Air Force:

University of San Diego law professor Michael Rappaport, a prominent originalist scholar, has two interesting posts (see here and here) building on my earlier discussion of the constitutionality of the Air Force under textualist and originalist theories of constitutional interpretation.

I agree with most of Michael's points, particularly his argument that critics of originalism (and also some defenders) often have a flawed and oversimplified view of what originalist constitutional interpretation entails. As I explained in this review of Justice Breyer's recent book on constitutional interpretation, such misunderstandings occur even (perhaps especially) at the Highest Court in the Land.

However, I think that an independent Air Force (as opposed to one that is part of the Army or the Navy) is more difficult to justify on textualist and originalist grounds than Michael suggests. Here's the relevant part of his argument:

To focus on the independence question, lets make the following assumption: The use of airplanes and other Air Force equipment would be constitutional if used by the Navy. That is, the term Navy in the Constitution does not preclude the use of this equipment. (This assumption must hold for the use of Air Force equipment to be constitutional as part of the Navy.)

Consider the following situation. Congress decides that instead of creating a single Department of the Navy, with a single Secretary of the Navy, it creates two departments: Navy Department A and Navy Department B. They are independent of one another, but both are under the control of the Secretary of Defense and the President. Would this be constitutional? Of course. There is nothing in the Constitution that requires a single department.....

Now, add one more wrinkle: Congress has Navy A use different equipment than Navy B. This is also constitutional. There is no requirement that they be identical.

Finally, the last step: Congress changes the names from Navy A and Navy B to Navy and Air Force. This is obviously constitutional, since there is no requirement that any specific name be used. Put differently, that we call something the Air Force as a statutory matter does not decide the constitutional question of whether it is a Navy.

What this argument shows is that the independence of the Air Force is irrelevant.

To my mind, there is an important textualist objection to this argument: it 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? 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. 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. Airpower incorporated into the Army or the Navy as an adjunct to their efforts to wage war on land and sea does not raise the same sorts of constitutional issues.

To briefly reiterate the points made in my earlier post, I believe that airpower incorporated into the command structure of the Army and Navy is clearly constitutional under textualism and originalism. This dispels the nightmare scenario of having our armed forces deprived of air cover altogether, from which the anti-originalist use of the Air Force example derives most of its force. I also believe that even an independent Air Force might be constitutional on the basis of the Necessary and Proper Clause (combined with Congress' Article I powers). However, the originalist/textualist case for an independent Air Force is more difficult to make than Michael's argument suggests.

UPDATE: Michael responds to this post here. His reply is difficult to summarize, but if I understand it correctly, the key claim is that an independent Air Force is permissible under the text of Article I so long as the "powers" it exercises can legitimately be considered either "Army" or "Navy" powers. To the extent that "Army" and "Navy" powers are different from each other, Michael contends that his argument also avoids making the power to raise Armies redundant. There is a subtle shift here, or at least clarification, of Michael's original argument which focused not on "powers" but on equipment. The focus on power is to my mind, more appropriate and keeps Michael from having to argue that using airplanes to engage in maritime warfare (which is indeed a "Navy power") is the same thing as using them for other purposes. But this revised or clarified argument still falls short of justifying an independent Air Force. A modern Air Force does things that don't fit neatly into either the Army or Navy box, such as strategic bombing, which is not directly linked to either ground or air operations. If, on the other hand, Michael wants to define Army and/or Navy powers so broadly that Air Force missions such as strategic bombing can be shoehorned into one of the two categories, then at least one of them would again become redundant. Almost any Army operation could then be described as supporting the Navy or vice versa.