Politico recently published an article entitled “A Musk-shaped question hangs over the National Space Council,” questioning whether President Trump will revitalize the National Space Council as it was under his first administration, or whether it will become a victim of the Department of Government Efficiency (DOGE) axe, as Reuters recently reported it might. The article points to Elon Musk’s current close relationship with the president and asks whether Trump might think he’s getting all the input he needs on space policy. We are, after all, going to Mars, according to the president’s inaugural remarks. Currently, the National Space Council’s web page returns a dreaded 404 – Page Not Found error.
If the last eight years have taught the space community anything, it is that we need a vibrant National Space Council. Trump 45’s Space Council issued significant new Space Policy Directives (SPD-1 through SPD-4) which provided guidance to executive branch agencies, and paved the way for the establishment of the Space Force. Biden’s Space Council, in contrast, did virtually nothing for four years. It took President Biden almost a full year to start up his version of the Council, and it met only three times during the administration. Although some have argued that it continued to do good work, especially in helping implement the Artemis Accords (now up to 53 signatories), the Biden administration’s lack of leadership and oversight over the many federal agencies that oversee space activities further cemented a generation of regulatory gaps, overlaps and stovepipes.
The last four years have been marked by agencies leaping into the vacuum and proposing space regulations. The FCC decided it has statutory authority to regulate in-space servicing, assembly, manufacturing (ISAM), something it does not. The FAA started a rulemaking proceeding to regulate launch upper stages in orbit as orbital debris, even though Congress has specifically only granted the FAA authority over launch and reentry. The Biden White House directed NIST to develop guidelines for the government to exercise march-in rights on patents developed using government grants, something that could destroy many small aerospace start-ups. All this while the National Space Council was dormant.
The days of rogue agencies doing what they want is over after the Supreme Court overruled Chevron deference in the Loper Bright decision, which may have a significant impact on the future of commercial space regulation. A well-functioning National Space Council will be critical to help demonstrate to the courts that agencies possess, and are properly executing, their statutory authority. If nothing else, a Trump 47 Space Council could play a galactic game of Whac-A-Mole with agencies that continue to pursue regulatory agendas that do not align with the powers Congress have delegated. And where statutory authority is lacking, or ambiguous, the Space Council can work with Congress to craft the necessary legislation to create the statutory scaffolding necessary to build out an outer space economy.
But a revitalized and refocused National Space Council can do one more thing: it can bring back a truly bipartisan approach to space policy. For better or worse, Musk’s personal relationship with Trump has politicized space. Historically, space has been almost completely a bipartisan issue — space enthusiasts have largely checked their politics at the door in discussing space policy. That began to change a few years ago with the ascendency of commercial space and the vilification of “space barons,” who I have argued are absolutely essential for the future of outer space. That political divide has widened dramatically with Musk’s active campaigning for Trump in 2024, such that some who previously loved the work of SpaceX and Starlink now find themselves politically compelled to work against Musk’s interests, even if their hearts agree with the incredible progress Musk’s companies have made. A functioning National Space Council can demonstrate that space policy is being driven by the desire to keep America at the forefront of the space frontier for all the right reasons, and dispel feelings that Musk is being handed a political favor in exchange for his fealty. And the National Space Council can lead the now-reascending debate over the next great destination for humanity in space: moon, Mars, or both.
No issue is more important to our long-term future than whether America chooses to lead humanity out into space, and no organization is better positioned to chart that course than the National Space Council.
James E. Dunstan is Senior Counsel at TechFreedom, the founder of Mobius Legal Group, PLLC, and an adjunct professor of outer space law at the Antonin Scalia School of Law at George Mason University. He has more than 40 years of experience in administrative and outer space law.
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