In a 5-4 decision, the high court mandated a complete redistribution of personnel, equipment, and funds, “in a more constitutionally permissible manner.”
The controversial decision is the end result that began at Eglin Air Force Base near Valparaiso, Florida. About seven years ago, Jonathan Smith, a local business owner, filed a civil suit against the Department of Defense. In the suit, Smith claimed that Eglin Air Force Base impermissibly acquired a one mile stretch of his privately owned property by improperly installing a large fence. Among other legal issues, Smith argued that the National Security Act of 1947 had unconstitutionally established the United States Air Force, and therefore, any appropriation of his land was improper despite other legal justifications.
“We were looking for a way around Sovereign Immunity and various other protections that military institutions enjoy. We decided to roll the dice and litigate for knees, as it were,” said Timothy Jones, the attorney representing Smith.
State courts and lower federal courts were not sympathetic to this argument. Floridian state courts refused to even touch the issue by citing the distinctly federal nature of the issue.
The Honorable Jackson McBridge of the 12th Floridian district announced in summary judgment, “as a general proposition, a State court may interpret a federal law in light of the United States Constitution, but, there are issues that are so fundamentally an aspect of political and federal concern that it would be improper for this court to assert jurisdiction over them.”
When Smith v. Eglin arrived at the 11th Federal Judicial District, the court promptly dismissed for procedural reasons. Undeterred, Jonathan Smith applied for review by the Supreme Court, and quite suprisingly, the court unanimously granted writ of certiorari, allowing Smith his day in front of the highest tribunal in the nation.
After receiving briefs and hearing oral arguments, the Court retired for deliberations. After three months, the Justices announced their decision. The Air Force cannot constitutionally exist as an independent entity.
The majority, led by Justice Antonin Scalia, reasoned: “This question is very simple. We must look to the text of the Constitution. That text is clear by its absence. The Constitution, despite establishing the Army and Naval Forces, says absolutely nothing about the Air Force. Our inquiry must end there.”
In a concurring opinion, Justice Kennedy elaborated, “the constitution is remarkably silent about any militarized air units. And it is not as if the drafters of the Constitution were unaware of flight. Lighter than air and dirigible technology were around at the time the constitution was written. If the founders knew about these things and did not enumerate Congress with the power to create an Air Force, we must assume that this is a power retained by the States as per the 10th Amendment.”
In a blistering dissent, Justice Ginsburg said, “this is just another instance of the conservative branch of the high court hiding behind textual originalism instead of going through the effort of making a sensible argument. This is judicial laziness which will have devastating effects down the road.”
The exact fate of personnel in the Air Force remains unclear. The President and the Department of Defense have released a vague press release, saying, “While [the Air Force’s] current form is unconstitutional, Justice Kennedy’s concurring opinion suggests that the Constitution would be open to a state-operated Air militia. We will be looking into a vast restructuring in order to comply with the mandates of the Constitution.”
According to an anonymous source at the Pentagon, there are whispers of, perhaps, rolling the Air Force back into the Army. This would reflect the constitutionally permissible subservience that the Marine Corps has with the Navy. If that is not far enough, some have said they’d be rolled back into the Signal Corps.
Interestingly, Mr. Smith was not allowed to claim possession of his one mile stretch of land. The court reasoned that while the Air Force does not functionally exist, the federal government, by whatever name you call it, was the entity which appropriated his land, and was therefore immune from civil suit.