To understand why the House of Representatives Science Committee has recently passed an unprecedented bill to formally prohibit NASA from terminating a program within that agency, it is useful to know the history behind the ill-will that exists on a bi-partisan basis between Congress and NASA.
The dawn of 2010 began like any other year for the U.S. space program. Constellation was making progress, though certainly not at as rapid a pace as originally hoped by many. In October 2009, the Ares I-X test launch had been a success, returning data that put to rest concerns by some that the rocket might shake itself and its crew apart on later launches. And Orion preparing for what would be a successful pad abort test in May.
On Feb. 5, 2010, NASA announced the Constellation project, including the Orion and Ares I programs, would be immediately terminated. Congress, which had not been consulted, was more than a little shocked. To help slow down the Orion and Ares programs, NASA invoked the Antideficiency Act and withheld $993 million in funding from those programs for termination liability, very nearly stopping them in their tracks. This action was taken by NASA despite the fact that the NASA Authorization Act of 2008, Title I, Section 101 authorized the Orion Crew Exploration Vehicle and the Ares I Crew Launch Vehicle, making those programs the “law of the land”. A program is authorized—meaning it’s a legal program of record—through the period of authorization (usually 2–5 years depending on the authorization act) and even after the authorization period has lapsed, until superseded by next authorization or explicitly changed in the Appropriations Act.
Many thought the end of Constellation meant the end of the Moon program. But Congress was not persuaded by the Obama Administration’s reasoning behind Constellation’s termination. By September 2010, it was clear that legislators wanted to see Orion continue and to begin work on a “super-booster,” the Space Launch System. On Sept. 29, 2010, the Democratic controlled House, after a debate on the House floor that was broadcast live by TV and cable networks, passed by a vote of 304–118 the Senate’s version of the 2010 NASA Authorization Act, S. 3729. On Oct. 11, 2010, President Obama quietly signed the 2010 NASA Authorization Act into law. The 2010 Great Space Debate was over, or so many hoped.
Within the 2010 NASA Authorization Act was Section 309 that required NASA to report on the overall design of the Orion Multi-Purpose Vehicle and Space Launch System within 90 days of enactment of the NASA Authorization Act. NASA did produce a preliminary Section 309 Report on Jan. 11, 2011. But the preliminary report revealed that the Agency didn’t seem to agree with Congress that the Orion and Space Launch Systems were mandated by law. Instead, the preliminary report stated that a decision by NASA’s Administrator on whether to proceed with those programs would be based on cost or other factors. Needless to say, the reception of the preliminary report by Congress was far from warm. Additionally, during this period, Senators and Representatives continually warned NASA that they were hearing from their NASA center constituents that funds for the Space Launch System were being used for other purposes. By June 2011, it was clear to many in Congress that NASA was not on a path to finalize the reference design of Orion or the Space Launch System, leading the Democratic-controlled full Commerce Committee to threaten to subpoena NASA. On Aug. 2, in another first for America’s space agency, the Senate Commerce Committee subpoenaed NASA’s Administrator, Deputy Administrator, and their staff, seeking in particular for their emails and other communications. On Sept. 14, NASA announced its reference design for the Space Launch System.
Even after the dust-up over the NASA Authorization Act, the Sec. 309 Report, and the decision to finalize the reference designs of the Orion and Space Launch System “super-booster,” the struggle between NASA and Congress was not over. As far back as August 2011, members of Congress, including leadership on both sides of the aisle, asked that the White House work with, not against, the course set by Congress for NASA. But subsequent NASA budgets proposed by the White House continued to show an unwillingness to meet authorized funding of those programs. By its actions, it is apparent to many in Congress that the Administration seems to still harbour the dream of terminating both Orion and the Space Launch System programs at the first chance it gets, never mind that, as some like to point out, those programs are legally mandated. This has led to a few Congressional reactions.
One reaction is the rising Congressional impatience with continued White House efforts to deny funding the Space Launch System, as exampled in the very tough language in the budget report from Congressional appropriators that accompanied the recent fiscal year 2014 budget. On page 112 of the report, appropriators made clear their frustration with the Administration’s efforts to short-change the Space Launch System program.
The Committee believes that the amounts specified in the independent cost assessment [ICA] for the SLS are necessary and appropriate in order to maintain the programs estimated cost and schedule. Despite numerous directives to provide an updated cost assessment for the SLS, which supports the lower funding levels proposed, NASA has never provided the Committee any verifiable documentation supporting the amount reflected in the agency’s budget request. Such blatant disregard for the direction provided by the Committee and for NASA’s own independent cost assessment for the SLS is inappropriate and calls into question NASA’s ability to appropriately manage and oversee its ongoing projects. The Committee cannot support NASA’s position to undermine its own, independently verified, funding plans and has instead provided the full amount assumed in the independent cost assessment for fiscal year 2014 for SLS in order to maintain a launch date of 2017. In furtherance of that goal, NASA’s Human Exploration and Operations Mission Directorate shall not tax SLS for engineering or other activities not directly related to SLS vehicle development. The Committee cautions NASA against relying on anything other than an actual independent cost assessment in its recommendation for fiscal year 2015.
Another reaction is H.R. 3625. Introduced on Dec. 5, 2013, by Rep. Mo Brooks, a member of the House Space Subcommittee, along with 11 Republican and five Democratic co-sponsors, H.R. 3625 would prevent the space agency from terminating, among other programs, Orion and the Space Launch System unless authorized by a future law, terminating a prime contractor of those programs, releasing all funds for those programs currently held for termination liability for use in their development, and having the federal government assume the termination liability for those programs.
Unknown to most, under the auspices of the Antideficiency Act, NASA has continued to withhold program funding for both Orion and SLS for termination costs, in the event that they are canceled, never mind that, as noted above, those programs are Congressionally mandated and the law of the land. It bears mentioning again that a program is authorized, and therefore a legal program of record, through the period of authorization and even after the authorization period has lapsed, until superseded by next authorization or explicitly changed in the Appropriations Act. In the current fiscal year, the funds denied for Orion are $226 million, or 18 percent of current appropriations. It’s a little better for the Space Launch System program: $192 million, or 12 percent of current appropriations, are being withheld. The total sum being denied these programs totals $418 million. NASA’s Associate Administrator Robert Lightfoot stated before the Federal Aviation Administration’s Commercial Space Transportation Advisory Committee that H.R. 3625 has some merit and would allow the Orion, SLS, and other covered programs to do more than they are currently able.
On Dec. 11, 2013, H.R. 3625 was passed by the House Science Committee on a voice vote and is now headed to the House floor.
How H.R. 3625 will fare in the Senate is an open question. What is not an open question is that Congress appears to be looking for ways to put an end to the machinations of the White House, its Office of Management and Budget, and NASA to slow-roll in particular the Orion and Space Launch System programs. H.R. 3625 is the House’s solution in stopping the Administration. Time will tell whether the Senate is of the same mind. Certainly, there have been recent changes at NASA that offer the possibility of lowering tensions with Congress. Unfortunately, there have not been any such changes at the White House. As such, given the past history between Congressional desire to build the infrastructure to send humans to explore space beyond low-Earth orbit and the White House’s opposition to those efforts, it is doubtful Congressional efforts to manage NASA will diminish anytime soon.
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- Ares I-X History ↩
- Orion Pad Abort 1 Launch ↩
- NASA Authorization Act of 2008 ↩
(3) For Exploration, $4,886,000,000, of which—
(A) $3,886,000,000 shall be for baseline exploration activities, of which $100,000,000 shall be for the activities under sections 902(a)(4) and 902(d), such funds to remain available until expended; no less than $1,101,400,000 shall be for the Orion Crew Exploration Vehicle; no less than $1,018,500,000 shall be for Ares I Crew Launch Vehicle; and $737,800,000 shall be for Advanced Capabilities, including $106,300,000 for the Lunar Precursor Robotic Program (of which $30,000,000 shall be for the lunar lander mission), $276,500,000 shall be for International Space Station-related research and development activities, and $355,000,000 shall be for research and development activities not related to the International Space Station; and (B) $1,000,000,000 shall be available to be used to accelerate the initial operating capability of the Orion Crew Exploration Vehicle and the Ares I Crew Launch Vehicle, to remain available until expended.
- House Passes S. 3729 ↩
- President Signs 2010 NASA Authorization Act ↩
- Section 309 Required Report ↩
SEC. 309. REPORT REQUIREMENT.
Within 90 days after the date of enactment of this Act, or upon completion of reference designs for the Space Launch System and Multi-purpose Crew Vehicle authorized by this Act, whichever occurs first, the Administrator shall provide a detailed report to the appropriate committees of Congress that provides an overall description of the reference vehicle design, the assumptions, descrip- tion, data, and analysis of the systems trades and resolution process, justification of trade decisions, the design factors which implement the essential system and vehicle capability requirements established by this Act, the explanation and justification of any deviations from those requirements, the plan for utilization of existing con- tracts, civil service and contract workforce, supporting infrastruc- ture utilization and modifications, and procurement strategy to expedite development activities through modification of existing contract vehicles, and the schedule of design and development mile- stones and related schedules leading to the accomplishment of operational goals established by this Act. The Administrator shall provide an update of this report as part of the President’s annual Budget Request.
- Preliminary Report Regarding NASA’s Space Launch System and Multi-Purpose Crew Vehicle ↩
- Congressional Reaction to NASA’s “Section 309” Report on HLV and Crew Vehicle ↩
- Senators Warn White House On SLS Funding Misuse ↩
- Senate Threatens to Subpoena NASA For Documents ↩
- Senators Subpoena NASA For SLS Documents ↩
- Space Launch System Announced ↩
- Senators Urge Quick Action on SLS Decision ↩
- Departments Of Commerce And Justice, And Science, And Related Agencies Appropriations Bill, 2014 ↩
- To Provide For Termination Liability Costs For Certain National Aeronautics And Space Administration Projects, And For Other Purposes ↩
- Antidificiency Act Background ↩
- House Committee Approves Bill To Shield Big NASA Programs from Cancellation ↩