Outer space is cold, hot, and dangerous. It is where we conduct scientific research, land probes on asteroids, and cooperate with (and spy on) other nations. It is where communications satellites, space stations, and other man- made things fly around earth at thousands of miles per hour. But most importantly, space is useful and beckons us to explore. Since the Soviet Union shot Sputnik into orbit in 1957, the growth of human activity in earth’s orbit and beyond has rapidly transformed space into the “province of all mankind.” This province was once reserved for state actors—participants in government space programs like NASA or the Soviet space program. But now, commercial entities are increasingly entering the fray. As more private actors seek to put more people into space, the range of in-space activity will increase—and so will the number of in-space disputes, commercial or otherwise. Though treaties obligate the United States to provide a certain level of supervision in space, the bulk of domestic U.S. space regulation does not apply to human conduct in space. Rather, it takes the form of licensing launches and returns occurring within earth’s atmosphere. Thus, existing U.S. space law is ill-equipped to deal with human commercial space activity.
As more humans travel beyond earth’s atmosphere, more federal regulation of in-space commercial conduct will be necessary, either through the extension of existing laws to space or through the creation of new laws specifically applicable there. This raises two questions: (1) What constitutional powers enable Congress to implement an extensive legal regime governing human commercial space activity? And, (2) what are the limits of those constitutional powers as applied to space? This Note seeks to provide the answers.
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