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The House version of a defense authorization bill would effectively block the ability of the administration from enacting a space code of conduct without Congressional consent. (credit: J. Foust)

Separation of powers battle over a space code of conduct heats up


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Last week, the House of Representatives debated H.R.4310, the Defense Department authorization act for fiscal year 2013. The bill contains a provision concerning the implementation of a code of conduct for outer space activities. Specifically, Section 913 prohibits the Department of Defense from uses funds to implement an international agreement on space activities that has not been ratified by the Senate or otherwise authorized by federal statute.

In H.R. 4310, Congress is taking a different approach to prevent implementation of the International Code of Conduct, or its cousin, the EU Code, through its power of the purse.

The bill, which undoubtedly takes aim at the International Code of Conduct, is the latest attempt by Congress to curtail the Obama Administration’s efforts to implement a code of conduct without the consent of Congress. Congress opened its first salvo against the Administration on January 18, when several members of Congress sent a letter to President Obama. 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. (See “Congressional opposition to a Code of Conduct for space”, The Space Review, February 6, 2012.)

The letter focused on Congressional concerns that the President’s constitutional power to enter into an International Code of Conduct was limited and required Congressional input before it could be implemented. The Administration’s argument was that since both the EU Code of Conduct and the proposed International Code of Conduct are not legally binding measures, Congress is not required to ratify either accord and, thus, its involvement is not mandated. The letter addresses this by stating that while the Administration’s efforts to implement either the EU Code of Conduct or the International Code of Conduct is questionable, what is certain that if either Codes are entered into, regulations promulgated by federal agencies to implement the terms of the Code would be mandatory.

The letter goes on to question whether those mandatory regulations would affect the private sector, in particular the nascent commercial space industry, and, therefore, those regulations would affect interstate commerce. Since Congress has exclusive jurisdiction over interstate commerce under the Commerce Clause found in Article I, Section 8, Clause 3 of the United States Constitution, it could conceivably intervene and prevent those regulations from being implemented thus rendering any agreement to a Code of Conduct meaningless.

In H.R. 4310, Congress is taking a different approach to prevent implementation of the International Code of Conduct, or its cousin, the EU Code, through its power of the purse. The bill represents a new tactic by Congress whereby it takes preemptive measures to prevent federal agencies from implementing the requirements of a Code of Conduct by prohibiting the expenditure of funds towards that end. It is likely the Defense Department and the intelligence community were marked as the first trial of this new tactic; however, other agencies could be targeted later as well. Notably, the January 18th letter also requested the Administration disclose any other federal agencies that may be pivotal in implementing a code of conduct. Given the tactic being taken with the Defense Department’s budget, the reason seems clear that Congress intends to target their budgets with a provision such as the one found in H.R. 4310. It is unclear whether Congress intends this as a blanket provision among all federal agencies should the Administration refuse that disclosure.

How effective is this approach? For its part, the Obma Administration has already objected to the language by threatening to veto the bill and referencing the provision regarding the Code of Conduct, reiterating that since the Code of Conduct is not legally binding, the Administration is not required to seek Congressional input or consent in negotiating it or signing it. The Administration also attempted to apply greater political pressure by stating that the H.R. 4310 encroaches on the President’s exclusive authority to conduct foreign relations and could impede the country’s ability to conduct bilateral outer space activities with important allies.

The timing of an election year may also play into the political calculus as foreign leaders, aware that Congress is hostile towards the Code of Conduct, may be joined by a new President who could withdraw the United States from the measure.

Aside from the concerns and the veto threat from the Executive Branch, there is the question of whether the Senate will include a similar prohibition in its version of the legislation. Since the Democratic Party holds a slight majority in the Senate, it is questionable whether a similar prohibition would be included that could survive political scrutiny. However, with elections fast approaching, the pressure to pass an authorization bill for the Department of Defense could compel members who are up for reelection to acquiesce to one. Furthermore, solidarity with the President has been waning given his poll numbers, and Senate and House Democrats may find themselves joining with their fellow Republicans in passing a bill similar to H.R. 4310.

This presents the President with a quandary. He has been using his foreign policy powers broadly, and agreeing to and reaching agreement on a Code of Conduct would give him another victory to present to the voters. However, the President’s reelection prospects are not certain and allies, who may already be somewhat suspicious of American intentions since the United States elected not to sign onto the EU Code of Conduct and instead pursued its own effort, may not be willing to enter into a Code of Conduct that will be nullified by Congress. The timing of an election year may also play into the political calculus as foreign leaders, aware that Congress is hostile towards the Code of Conduct, may be joined by a new President who could withdraw the United States from the measure.

This latest political impasse over the Code of Conduct plays out over the uncertainty over whether a viable code will be adopted. What is certain is that as members of Congress continue to rail against the code, they will find new tacks to stymie the Obama Administration’s efforts to implement one without Congressional consent.


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