Space Legislation is Essential to Reach Sky-high Innovation Potential
The past 10 years have seen incredible advances in space-based innovation. Rocket boosters are landing themselves, highspeed broadband Internet is being broadcast by constellations of thousands of satellites in low Earth orbit, private landers are visiting the Moon, privately crewed missions are visiting the International Space Station (ISS), and multiple companies are seeking to create private space stations to replace the ISS (Voyager/Airbus, Blue Origin/Sierra Space, VAST, Axiom Space). The sky certainly seems the limit for this innovative corner of the economy. However, one thing that could bring it all to a grinding halt: the lack of an overarching legislative framework that authorizes novel space activities.
A needed framework must come from Congress, because only Congress possesses the power to authorize government activities, which it does by passing statutes or laws. A Congressional authorization defines the government’s authority to act and may establish or adjust a federal agency, program, project, or other activity. A program lacking Congressional authorization does not mean that it cannot continue to receive funding through the annual appropriations process, but it does make it more vulnerable to lawsuits and bureaucratic stagnation.
This lack of authorizing legislation for space may have made sense when space exploration first began and NASA and the Department of Defense were the only players launching government astronauts and satellites into orbit and the number of space-related activities was limited. However, that is not the case anymore. As more entrepreneurs think of ways to use microgravity to ignite the Fourth Industrial Revolution, the federal government needs to have the authority and flexibility to be able to support this new Revolution and not slow it down. That will take legislation to make it happen.
Currently, there are three executive branch agencies tasked with working with commercial space sector companies by awarding operating licenses: The Department of Transportation’s Federal Aviation Administration (FAA) Office of Commercial Space Transportation oversees licensing for launch and reentry vehicles, the Department of Commerce’s Office of Space Commerce licenses commercial remote sensing licensing, and the Federal Communications Commission’s Space Bureau oversees spectrum licensing. These agencies have proficiently managed their respective areas, but when things fall in their coverage gaps, problems emerge.
Novel space activities that do not fall under one of these categories (which most don’t) must be approved through a complicated and time-consuming interagency review process because Congress has not authorized a single agency or office to lead the process. The first Trump Administration sought to add order to this process by assigning the Department of Commerce the role of space activities authorizer. However, without Congressional authorization attached to it, the Trump Administration’s approach hasn’t led to greater clarity or action because agencies remain unsure about what activities they can legally approve.
The lack of clear authority creates unnecessary uncertainty for private-sector innovators. If a company doesn’t know who to talk about their novel space activity or believes that their idea won’t be approved quickly or transparently, they are less likely to invest their efforts. While these innovators don’t need burdensome regulations slowing them down, they absolutely need a clear sense of direction in terms of whom in the government will work with them to make their activities happen.
The lack of clear congressional authorization for space activities also creates increased legal risk for agencies attempting to approve them following the Supreme Court’s 2024 ruling in Loper Bright v. Raimondo, which ended the “Chevron Doctrine.” This doctrine previously offered federal agencies strong protection against lawsuits challenging their actions; that protection no longer exists.
Without the hard deference and presumption of authority granted by Chevron, agencies must work harder to overcome legal challenges to their actions by persuading courts of their expertise while hoping courts interpret the law in a similar way as the agency did (called Skidmore deference). Skidmore’s requirements will make it harder for agencies to justify actions that aren’t specifically stated in a statute, meaning that actions taken by an agency that aren’t specifically authorized by Congress (like authorizing novel space activities) could be ruled as void unless an agency can persuade a court that their expertise justifies the agency’s authority and that some existing legislative authority permitted the agency to act.
The last thing the space sector needs is for unsure government processes to slow down its pace. Lawsuits, the threat of lawsuits, and bureaucratic confusion about jurisdiction can all cause the U.S. commercial space sector to slow at a time when China is trying to assert its place in the cosmos. Congress needs to give the space sector a “National 21st Century Space Act” that gives the federal government clear authorities and allows it to supercharge the New Space Age. Novel space activities are occurring as you’re reading this and the federal government needs to be prepared to know how to authorize missions that involve manufacturing materials in microgravity, regulate private space station activities, remove space debris, mine asteroids and other celestial bodies for precious minerals, and collect and distribute unobstructed solar energy for terrestrial use. It’s time for Congress to step in and perform its constitutional duties by giving clear authority to a defined federal agency to take the lead in approving novel commercial and civilian space activities.
