The Pitfalls of Labeling Whole Space Missions as Inherently Governmental

The Department of Defense (DOD) will soon release two strategies aimed at harnessing commercial space capabilities for national security needs. Defense officials have said that the strategy to be released by the U.S. Space Force will categorize certain space missions as “inherently governmental,” with mission criticality influencing which missions fall into this group. While well meaning, this approach does not align with the definition of an inherently governmental function in statute and would create barriers for adoption and integration of commercial space. Rather than applying the inherently governmental label to whole missions, the Space Force should examine activities within missions to see which ones meet the statutory definition. The Space Force can also argue it needs to operate critical capabilities itself, while leaving open the door for commercial options to augment or support its mission.

The United States did not have a statutory definition of an inherently governmental function until the Federal Activities Inventory Reform Act of 1998, which sought to narrowly define what only the government could do. This narrow definition reflected the policy preferences of both the George H.W. Bush and Clinton administrations, as well as contemporary public sentiment, which supported contracting out commercial functions being performed by government agencies. It encouraged agencies to use commercial options when available, rather than standing up a government alternative. Included in the law was a non-inclusive list of inherently governmental functions, such as activities that bind or direct the United States, conduct military or diplomatic action or judicial proceedings, control government employees, or make decisions on the use of federal funds.

Additionally, the Office of Budget Management (OMB) Circular No. A-76 and Federal Acquisition Regulation (FAR) subpart 7.5 provide further guidance on inherently governmental functions, making clear that the government should not be competing with its citizens and that it should rely on commercial services when they meet government needs. The FAR goes on to provide an extensive, but not inclusive, list of things only the government can do, not contractors. The common thread is that inherently governmental functions are about making decisions, directing government resources and personnel, and acting on behalf and representing the government. The criticality of an activity plays no role in this definition.

This is not the first time U.S. military leaders and policymakers have faced questions about the role of the private sector in providing a military capability. Up to the early part of the twentieth century, U.S. government-run arsenals produced all military munitions and weapons, with military officials arguing that only the government should be making munitions. This meant that, at the start of World War I, U.S. industry lacked the ability to produce ordnance at scale. Though the onset of the war forced military leaders to turn to industry, it was too late. For most of the war, the United States had to rely on Great Britain and France for its artillery, tanks, and aircraft, as well as most munitions.

Classifying whole mission areas as either inherently governmental or not misapplies the term’s statutory definition and OMB and FAR guidance. The DOD’s public Joint Publication 3-14, Joint Doctrine for Space Operations, describes space mission areas required to support joint military operations, including space surveillance, missile warning, environmental monitoring, communications, and space launch, among others. Any activities within these areas that involve directing military operations or forces, exercising control over government funding, or committing the government to a course of action, are inherently governmental. But any activity that supports the government in doing those things can be done commercially.

This is not to say that the government should not maintain and operate its own systems to provide some or all the capabilities required for the space mission areas. The Space Force should consider operating systems when they support very important or critical functions, but not feel obligated to use an argument that they are inherently governmental as justification. Saying that a whole mission area is inherently governmental means that even during a crisis, when government systems could be degraded or disabled, the government could not turn to a commercial option to provide that capability.

If nuclear command, control, and communications (NC3) infrastructure was somehow disabled during a conflict, but Starlink was still operational, would the U.S. government not want to use that commercial capability? If NC3 is designated as inherently governmental, that option would be ruled out. None of this is to say that Elon Musk would have control of launch codes, as nuclear decisionmaking would remain with the government. Also, it is entirely justifiable to argue the need for maintaining a government-operated NC3 infrastructure because it is critical—more than critical—to national security. The Space Force should not shy away from saying, based on the criticality of a mission area, it wants to maintain its own capabilities for certain activities, while still leaving room for commercial options too. Some key Space Force officials appear open to this approach, recently explaining how commercial options could provide important redundancy to no-fail missions, such as positioning, navigation, and timing.

Ultimately, the Space Force commercial strategy should leave the door open to using commercial services that can support and augment all space mission areas. This applies during peacetime, especially so that Guardians can train on and integrate these services now, and during a crisis, when they might be most needed. Even if the Space Force changed its mind during a crisis and decided to use a commercial service it had previously designated as inherently governmental, it would be too late to train Guardians on its use, so this is not a great option. Rather than applying a blanket inherently governmental label to whole mission areas, officials should look more closely, determining which activities within those missions meet the definition of inherently governmental. If activities that do not involve deciding, directing, or committing make it onto a list, someone should give it a second look. The United States cannot afford to put any space capabilities, commercial or otherwise, on a “do not use” list, because someday it might be needed.