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While a non-binding Code of Conduct does not require the same advise and consent of Congress as a treaty, Congress could still act to have a voice in the approval of any such document. (credit: J. Foust)

Congressional opposition to a Code of Conduct for space

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On January 18th, several members of Congress sent a letter to the President of the United States addressing the matter of the Administration’s announcement that the United States would not sign onto the proposed European Code of Conduct for Outer Space Activities. The letter, signed by Congressmen Michael Turner and Joe Heck and Senators John Kyl and Jeff Sessions, all Republicans, extended support for the administration’s decision not to sign on to the measure but at the same time expressed concern about Secretary of State Hillary Clinton’s announcement that the United States intended to negotiate a similar measure using the European Code as a starting point.

Since neither code is intended to be a treaty, ratification by the Senate is not required, effectively taking both measures out of the purview of Congress’ oversight.

Among their concerns relating to the Code’s effect on national security and whether it would prevent irresponsible behavior on the part of countries such as the People’s Republic of China, the letter focused on whether an international agreement such as the Code would be negotiated and entered into unilaterally by the administration without consultation with or the approval of Congress. This is not a new concern for Congress: it was raised early in 2011 when the administration announced it was considering whether to sign the European Code of Conduct. The administration asserts then, as it does now, that since both the European Code of Conduct and the proposed International Code of Conduct are not intended to be legally binding treaties, the administration is not required to seek of the advise and consent Congress, nor does it require Congressional intervention while negotiating it.

That assertion is not without merit. The European Code of Conduct and its intended successor, the International Code of Conduct, are not treaties, nor are they intended to be legally binding upon the nations who might the instruments. Both codes are, in effect, transparency and confidence-building measures (TCBMs), which are international instruments for arms control designed to facilitate the eventual signing of legally-binding treaties. Since neither code is intended to be a treaty, ratification by the Senate is not required, effectively taking both measures out of the purview of Congress’ oversight.

The letter recognizes this in so much that it does not directly challenge the authority of the executive branch to negotiate and enter into either code; however, it does recognize the significance of the administration negotiating and entering into either of the codes as an attempt to implement international policy without the concurrence or the consent of Congress. The letter notes that international policy derived from signing onto either non-binding code would require the Department of Defense and the intelligence community to implement regulations, which would be binding and could influence both the national and economic security of the United States.

The letter builds upon this realization and contends that while the administration’s legal authority to enter into a code is uncertain, the potential implications of regulations created to implement a code may implicate the commercial sector, especially in terms of the growing commercial space market and the jobs that are created from it. According to the letter, this could implicate interstate commerce and as a result fall under the purview of Congress’s exclusive power to regulate interstate commerce granted by the Constitution under Article I, Section 8, Clause 3.

The tenor of the letter does not directly threaten the Obama Administration, but it does imply that it can assert leverage to encourage or force the administration to involve Congress in negotiations leading up to a signed code as well as seeking Congressional approval before a measure is signed. However, if the administration refuses Congress’s request and continues to pursue the International Code of Conduct unilaterally, Congress can either acquiesce to the administration’s decision, or it might seek legal redress to either force the administration to comply with Congress’ wishes or derail the implementation of a signed code.

A legal challenge by either Congress or the administration over the power to negotiate and sign a code could adversely affect the negotiations towards a code and US space policy as well.

It is no secret that the President and this Congress are at loggerheads, and a defiant administration could ignore what it would likely perceive as an indirect threat from Congress. For its part, Congress can pursue at least two legal avenues. One avenue would be for Congress to make a preemptive legal challenge in the form of a declaratory judgment before or during negotiations on a code and before signing of a measure. The other option would be for Congress to purse a legal judgment after the signing of a code and before implementation. This course of action would potentially delay implementation of a signed code and even invalidate one as unconstitutional, especially if a court ruled in favor of Congress’ asserted commerce power.

Timing is the most important factor in any legal challenge concerning negotiating and signing of a code. The new code effort being led by the United States is beginning during an election year. Even if a code is signed in 2012, a new president could exercise the same legal rationale of the current Administration and withdraw from a signed Code. There is also the matter of whether a court would choose not to hear the case by declaring the case not ripe for consideration.

A court could also decide that a case is moot in the event a legal challenge is leveled after a new president is elected. A newly elected president would have the option of withdrawing from the signed Code if it determines that it was improperly entered by the prior administration, thus eliminating the controversy before it. The timing during an election year also presents the possibility that a case would be refused because the court determines that the timing of the challenge during an election year presents a political question. However, given the Supreme Court’s acceptance of a case involving the healthcare reform law during an election year, it is unlikely that a case would be dismissed for that reason alone.

Regardless of the potential outcome, a legal challenge by either Congress or the administration over the power to negotiate and sign a code could adversely affect the negotiations towards a code and US space policy as well. A legal challenge, or even the threat of one, could make other nations wary of signing onto a code if they feel that there is an unresolved issue over the administration’s ability to unilaterally negotiate a code and if Congress could delay its implementation or otherwise politically kill it.

Furthermore, a legal challenge might also bring into question the intended use by the US of redefined and repurposed TCBMs to address outer space security issues in the UN. Nations already skeptical of the American approach may be further worried about the veracity of the approach if a legal challenge or the threat of one brings into question the administration’s ability to pursue the very instruments they are seeking to use. Either way, the existence of a challenge or the threat of one would loom large in the minds of other nations.

The outcome of the impasse between Congress and the Obama Administration over the proposed Code is uncertain. However, what is clear is that Congress has drawn a legal line in the sand, and the administration must choose whether to stop short of that line and include Congress in the process of negotiating the Code or step over it and risk the wrath of Congress asserted commerce power. Whether Congress has the political will to roll the dice with a legal challenge remains to be seen, but it ensures that negotiations over the Code will be anything but dull.