Trump Revives the National Space Council

Background

On June 30, 2017, President Trump issued Executive Order No. 13803: “Reviving the National Space Council.”

A successor to the National Aeronautics and Space Council (NASC), the National Space Council was effectively disbanded in 1993 after only four years. Vice President Pence will act as Chair of the Council.  His appointment as Chair means Mr. Pence “shall serve as the President’s principal advisor on national space policy and strategy.” One of his first high profile trips after the Council’s revival was his July 6 trip to NASA’s Kennedy Space Center.

SpaceNews is reporting that the Council’s revival is garnering positive reviews, including for the appointment of Scott Pace as Executive Secretary (per Section 3(e), “[t]he Council shall have a staff, headed by a civilian Executive Secretary appointed by the President”).

The Language of the Law

There will be much more commentary on this in the coming months. The friction between the Council and NASA was a large factor in its suspension in 1993, and it remains to be seen if those same issues will appear again. Its longevity and impact this time around will depend on who is appointed, their claims to authority, level of activity, and political considerations. For now, there is plenty to chew on just in the language of the Order. A cursory comparison of this Order with the one issued in 1989 (E.O. 12675) shows that right off the bat, the Secretary of the Treasury has been removed from a seat on the Council (although it seems clear the Chair would have the authority add the Secretary per Section 2(b)(xiv) of the Order), along with the other new appointments following some shuffling of various governing agencies (or creation of new ones, e.g. Homeland Security) since 1989. Though the Order expressly states the Council “shall not interfere with the existing lines of authority in or responsibilities of any agencies,” (Section 3(d)) it is probably only a matter of time before we hear about at least a “difference of opinion” between it and NASA.

Another note: the Executive Order creates a “Users’ Advisory Group” (Section 6) “composed of non-Federal representatives of industries and other persons involved in aeronautical and space activities.” Tracking down the reference to “Public Law 101-611, section 121” in the Order reveals the reference to the 1991 “National Aeronautics and Space Administration Authorization Act, Fiscal Year 1991.” That section itself reads in its entirety:

SEC. 121. USERS’ ADVISORY GROUP.
(a) ESTABLISHMENT- (1) The National Space Council shall establish a Users’
Advisory Group composed of non-Federal representatives of industries and
other persons involved in aeronautical and space activities.
(2) The Vice President shall name a chairman of the Users’ Advisory Group.
(3) The National Space Council shall from time to time, but not less than
once a year, meet with the Users’ Advisory Group.
(4) The function of the Users’ Advisory Group shall be to ensure that the
interests of industries and other non-Federal entities involved in space
activities, including in particular commercial entities, are adequately
represented in the National Space Council.
(5) The Users’ Advisory Group may be assisted by personnel detailed to the
National Space Council.
(b) EXEMPTION- The Users’ Advisory Group shall not be subject to section
14(a)(2) of the Federal Advisory Committee Act.

One comment: Section 6(c) of the Executive Order provides that the Advisory Group “shall report directly to the Council and shall provide advice or work product solely to the Council.” But the Federal Advisory Committee Act (FACA) seems to require that all “records, reports, transcripts, minutes, appendixes, working papers, drafts, studies, agenda, or other documents which were made available to or prepared for or by each advisory committee shall be available for public inspection” subject to FOIA restrictions. [The general reference to publicly available advisory group information is not sourced on Wikipedia, but the text of the FACA can be found online, including here.] This “sole work product” provision did not appear in the 1989 Executive Order. Will this lead to potential litigation? It would be great for a FACA/FOIA expert to weigh in on this topic.

The Role of the National Space Council Going Forward

It’s no wonder that with massive increase in private, commercial space activity, especially in the last 20 years, that there is renewed interest in an advisory group of industry representatives. But is it necessary? After all, major private space players like Elon Musk certainly have had no problem gaining the attention of the President. Will the Council and Advisory Group be an excuse to create further intervention at the apparent behest of industry players in concert with executive officers? Or, will having such a presence help stay the visible hand of government? This will depend on the makeup of the Advisory Group, the vigor of the Council, the goals of the administration, and of course the political landscape over the next few years.

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