Why was Congress able to create an Air Force without a constitutional amendment?

Question

Article 1, Section 8 of the US Constitution enumerates the powers of Congress and includes the creation of military forces:

To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years;

To provide and maintain a Navy;

To make Rules for the Government and Regulation of the land and naval Forces;

Given that the Constitution only talks about granting Congress the ability to regulate land and naval forces, why were they able to create the Air Force without a constitutional amendment granting that power?

Answer 1

In a dissent in the case of Laird v. Tatum, Justice William Douglas argued tangentially that the creation of an air force is legal as per Article of 1, Section 8 of the Constitution:

The Army, Navy, and Air Force are comprehended in the constitutional term "armies." Article I, § 8, provides that Congress may "raise and support Armies," and "provide and maintain a Navy," and make "Rules for the Government and Regulation of the land and naval Forces."

In other words, Douglas argued against a literal interpretation of the Section - an interpretation that I don't think has been disputed.

Going into more detail, this blog post talks about John Marshall's opinion in McCullough v. Maryland, where he gave conflicting statements about the Enumerated Powers listed in Section 8. The Enumerated Powers are, in a nutshell, those granted to Congress via Section 8. While several common passages of Marshall's decisions are often cited for different interpretations of his points, one in particular caught my eye:

Among the enumerated powers, we do not find that of establishing a bank or creating a corporation. But there is no phrase in the instrument which, like the Articles of Confederation, excludes incidental or implied powers and which requires that everything granted shall be expressly and minutely described.

Marshall also referenced the Necessary and Proper Clause in Section 8, which states that Congress can make laws necessary for the execution of the powers explicitly listed - which makes sense, backing up the argument of Justice Douglas. In particular, the clause states that Congress has the power

To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.

The application of this clause is strengthened, as lly pointed out, if we consider that the United States Air Force was previously part of the US Army, and therefore, the use of aircraft in war was already considered an extension of the army - and thus a necessity to raise an army. Therefore, it wasn't unnatural for it to be extended into a separate branch.

As an addendum, it seems to be accepted that Congress could authorize the creation of a "space force", according to domestic law. Arguments against the legality of such a measure don't typically invoke Section 8 - but that's a rabbit hole I'd rather not go down. The point is, a literalist interpretation of the Constitution is not being applied at present in the case of a space force, and likely would not be applied to challenge the existence of the United States Air Force.

In summary, in Laird v. Tatum, Justice Douglas argued that a broader interpretation of "armies" should be used, and while it was given in a dissent and therefore isn't precedent, it seems to be backed up by Marshall's broader interpretation of Section 8 in general, along with the Necessary and Proper Clause. As far as I know, though, the constitutionality of the Air Force has never been seriously challenged in a US Court.

Answer 2

You could well ask the same question about the US Marines.

The US Marines were also not specifically mentioned there. However, they were nonetheless created by the Fifth Congress within a decade of the ratification of the Constitution. Prior to that, authorizations for US Navy frigates included money for marines. The clear implication of this is that Marines were at the time considered an integral part of any Navy, just as much as the guns on the ships were. If Congress sees fit to create a separate "service" to house them (under the Department of the Navy), it would be nothing more than legalistic silliness to claim they can't do that because the Constitution didn't add the word "Marines" to A1S8.

The same goes for the Air Force. Until 1947 air combat was simply part of the Army. In 1947 the US Congress, as part of a War Department reorganization, decided it would be best to split them out into their own branch. There's nothing about the transition to that management structure that should cause any constitutional crisis, or force its reporting structure to remain tied to the Army, simply because the authors of the Constitution in the late 18th century didn't put the words "Air Force" specifically in the document.

Answer 3

Congress may "raise and support Armies". Note the plural. They could therefore create another army, separate from the first, with its own organization and budgets. This army specializes in the use of aircraft. It is still "an army": i.e. people trained and equipped to fight wars for their country.

They may call it an "air force" by name. But it is very much a land force. They are stationed on land bases, from where they occasionally fly missions.

Answer 4

As a matter of fact, it turns out that this very question was more or less raised during the establishing of the Air Force. Browsing a reddit post churned out a nifty little document, hosted on justice.gov.

It is called 'MEMORANDUM FOR THE SPECIAL COUNSEL TO THE PRESIDENT', written by Harold I. Baynton, then Acting Assistant to the Attorney General, and written to, as per an editor's note,"Mr. Clark Clifford... It appears that Mr. Clifford was serving as Special Counsel to President Truman in 1947."

Within, he asserts that:

The phrase “Army and Navy” is used in the Constitution as a means of describing all the armed forces of the United States. The fact that one branch of the armed forces is called the “Air Force,” a name not known when the Constitution was adopted, and the fact that the Congress has seen fit to separate the air arm of our armed forces from the land and sea arms cannot detract from the President’s authority as Commander in Chief of all the armed forces.

and:

It certainly could not be contended that the absence of those words from the Constitution rendered the Congress unable to provide for an Air Force.

Though perhaps only an internal executive branch memo of some sort, it seems, it serves as an early source that serves to further bolster and back up the current and correct understanding as presented by the accepted answered.

Another link brought up another interesting, albiet more modern, source. It's a 2005 website post by A. Michael Froomkin. Beyond the elobation on points already said here, he cites the case 'U.S. Air Force Board of Review in U.S. v. Naar, 951 WL 2298 (AFBR), 2 C.M.R. 739 (1952), wherein:

There, appellant, an Air Force officer, argued unsuccessfully that he had been prosecuted unlawfully because the Fifth Amendment states that “no person shall be held to answer for a capital or otherwise infamous crime, unless on a presentment of a Grand Jury, except in cases arising in the land or naval forces” and the Air Force was neither. The tribunal made short work of that argument.'

The point of sharing this specifically is to show our modern system has it nailed down. I can't find this case online, with this being the only source it seems, but I believe the author's credentials speak for themself.

Answer 5

The propose of the distinction of army and navy relates to concern addressed by the first clause mentioned Article 1, Section 8, Clause 12 limiting the duration of their funding.

Which is specifically the prospect of said armies being used to directly take control the country.

Thus the distinction between Armies and Navies is their ability to control land and people more than whatever else they call themselves.

Still, out of respect for the Constitution, Congress should not have referred to the Air Force as something other than an Army. Likewise the Marine Corps should be regarded as an Army given their ability to operate on and control land.

Its worth noting that this has direct implications on all the other Armies Congress has established ranging from the FBI to Park Rangers, none of which are enumerated in the U.S. Constitution, and were before the exclusive province of the specifically elected domestic governments' of the States.

U.S. Constitution Article 1 Section 8

Standing army in relation to Article 1 Section 8 Clause 12