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US and Japanese warships follow US aircraft carrier USS George Washington during a US-Japan military exercise at the Pacific Ocean on December 10, 2010. (TOSHIFUMI KITAMURA/AFP/Getty Images)

Ignoring the Law on Carrier Numbers

Bryan McGrath

The President, as the chief executive of the United States, claims to be properly concerned with the law. Speaking about his health care victory last year, he said:

“It’s not as if Republicans haven’t had a chance to debate the health care law. It passed the House of Representatives. It passed the Senate. The Supreme Court ruled it constitutional — you remember all this. Last November, voters rejected the presidential candidate that ran on a platform to repeal it. So the Affordable Care Act has gone through every single democratic process, all three branches of government. It’s the law of the land. It’s here to stay.”

But it seems as if Obama’s concern for the law of the land does not extend to our national defense, our naval forces in particular. 10 U.S. Code § 5062 states:

The naval combat forces of the Navy shall include not less than 11 operational aircraft carriers. For purposes of this subsection, an operational aircraft carrier includes an aircraft carrier that is temporarily unavailable for worldwide deployment due to routine or scheduled maintenance or repair.

The Obama administration’s fiscal year 2015 budget submission removes advance funding for the mid-life refueling and overhaul of the nuclear-powered USS George Washington (CVN 73). This effectively sets the stage for the carrier force to fall from the required 11 to only 10, and saves the Navy an estimated $7 billion over the five-year budget plan that would have gone to the refueling and complex overhaul (RCOH).

There is an important passage near the end of the latest Congressional Research Service report on the Ford class aircraft carrier by Ron O’Rourke, a CRS specialist in naval affairs. Discussing the funding of our carrier fleet, O’Rourke cites 10 USC 5062 and states:

The requirement as stated in this statute is not is not contingent on the DOD budget being at a certain level in the coming years. Is DOD’s proposal to treat the issue of whether to proceed with the CVN-73 [USS George Washington] RCOH [Refueling Complex Overhaul] (and consequently whether there are to be 10 or 11 carriers for the next 25 years or so) as a question to be decided next year, depending on indications of congressional support for a certain DOD budget level in coming years, consistent with 10 USC 5062(b)?

Charged not only with such analytical rigor, the CRS also provides its client (the Congress) with information on issues regarding Congress’ institutional interests with respect to constitutionally based branch equality. A quiet and unemotional man, O’Rourke is not prone to hyperbole, and his analysis here is presented with characteristic understatement. But for those of us who follow these things, it is a veritable call to the barricade, one that urges Congress as an institution to be wary of its power and prerogatives as the Executive Branch accretes more power unto itself at the expense of Congress.

No less the law of the land than the Affordable Care Act, the requirement to include “not less than 11 operational aircraft carriers” is a legally binding mandate upon the Executive Branch, fully within the power of the Congress to levy under its enumerated power to “provide and maintain a Navy…” This is not a suggestion, or merely a good idea. This is the law, and any budget that the Executive prepares must start with the proper funding of specific Congressional mandates, not treat them as line items to be horse-traded in order to achieve other objectives, budgetary or political. That the Congress continues to even engage the Executive in this kabuki sends a message of surrender of yet another important sign of branch co-equality. What other mandates will the Executive find inconvenient? Were I a U.S. Marine, I might be concerned with the continuing viability of 10 USC 5063(a), which similarly levies a mandate upon the Executive, one setting the composition of the Marine Corps at “not less than three combat divisions and three air wings…”

That the Navy routinely engages in budget excursions (sometimes at the direction of the Office of the Secretary of Defense, sometimes not) in which it drops below 11 carriers is enabling lawlessness. The ongoing all-too-cute two-step in which the CVN 73 RCOH is held hostage to other budgetary and political goals puts the Navy on the wrong side of the law. The “support and defend the Constitution of the United States” provision of military oath of office—similar to 10 USC 5062(B)—does not include escape clauses for budget contingencies.

It is time for the Navy to either publicly and assertively urge Congress to change the law to permit it to dip below 11 carriers (which I consider to be strategically unwise and so should Congress), or look its OSD bosses in the eye and state that it cannot comply with any direction to budget for less than the law demands. Additionally, Congress—both parties—must think deeply about the degree to which the Executive Branch ignores its mandates. Not all slopes are slippery, but this one is.

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