Overruled

by Hank Davis

  * * *

  Life got really busy over the next 180 days. Caleb Newgate barely had time to draw his breath for six months before he stood waiting for the federal judge at nine in the morning on a Wednesday.

  Long Shot had a supply launch scheduled, but without the element of surprise Caleb was unwilling to pull his slick trick twice. It needed a launch license or there would be hell to pay for one Caleb Newgate.

  It looked like there would be hell to pay in any event, since the FAA didn’t like being surprised and Long Shot hadn’t given the FAA its 180 days for its first launch, much less the two years required for an environmental assessment.

  At the end of the 180 days the FAA denied Long Shot a license. The supply ship couldn’t follow on the settlers’ heels. The FAA pointed to Article VI of the Outer Space Treaty for its assertion that without a regulator to authorize and provide continuing supervision of the space settlement, the settlement violated the treaty and the FAA couldn’t issue a license that supported this behavior. That the behavior was outrageous was implied.

  Caleb knew the State Department was behind the FAA’s denial. The FAA had some authority to license consistent with international obligations, but it took pressure from the U.S. State Department and that agency’s charming disinterest in the laws of its home country for the FAA to carry out an act so lawless. The devil of it was that the reasons the FAA was wrong were so damned complicated.

  And that mattered not just for the court, but for his daughter Maria.

  Caleb had been ready for the denial, and had filed a motion the next day for the federal district court to stop the FAA from relying on a non-self-executing treaty. The hearing was scheduled within three days.

  But Maria was confused and upset. Her teacher, who either hated Maria, Caleb, lawyers, or settlers on Mars, kept pointing out that the Constitution made treaties the law of the land, that the United States was a government of laws not men—and that the settlers shouldn’t have been allowed to go if they weren’t being regulated. It would serve them right if they died. And today the evil woman had logged Maria’s eighth-grade government class into FedNET to watch the hearing as a reminder that the government always won, and don’t let anyone tell you otherwise.

  His daughter’s mortified embarrassment was the last thing Caleb wanted to worry about. But it hung on him, just another piece with the weight of the settlers themselves.

  As he surveyed the courtroom, with the raised dais for the judge, the empty jury box—no jurors would be required for a motion for temporary injunction—and the high, beamed ceiling studded with cameras, projectors, and all the aids any trial attorney could ever wish for in telling a story, he swallowed against a dry throat.

  He hadn’t gotten his nervous laryngitis in years. He didn’t want it now.

  But more than just Maria’s adolescent agony was on the line, much more.

  The settlers themselves needed the supply vehicles to reach them. Caleb had gotten to know many of them over the five years since he’d been looped into the project. They were real people to him, families, people full of hope and courage. Humanity’s hope for a future in space.

  Even if he didn’t know them he didn’t want their deaths on his conscience. They had bet their lives on their technology, their launch vehicle, their interplanetary ship, and the supplies they had with them. Now they were betting he was right about the government not being able to enforce a non-self-executing treaty.

  Eighty percent of the press was appalled at the actions of lawless colonialists. All the haters of Western colonialism came out of the woodwork to comment on how this was just like the past, happily ignoring that there were no native populations—not even microbial—on Mars. This was colonialism. It was bad.

  It was an insane view, since every species on Earth colonized whatever territory it could. To be alive was to colonize. Arguably to stay alive one had to colonize. Because if a species didn’t, it sank into overspecialization and, eventually, at the first unexpected turn of events, into extinction.

  The other twenty percent of the press were making heartless jokes, feeding the Facebook memes about dead colonists, outraged that the government would interfere in a citizen’s right to travel, or clamoring for the launch to take place so the settlers wouldn’t die.

  There had been both kinds of protestors outside the courthouse. Someone had thrown something at him. Fortunately, it had missed, and his dark blue suit in summer weight wool remained immaculate.

  “All rise,” the bailiff called.

  Caleb rose from behind his two-person table as Judge Ney entered the courtroom. She was a statuesque woman, with long hair braided down her back. Had it not been for the black robes covering her from the neck down, she could have played a middle-aged Amazon. Pale eyes surveyed her courtroom.

  Caleb hoped he didn’t look nervous. He felt alive, slightly on fire, truth be told, and his throat was no longer dry. Even so, he felt a little light around his head and extremities. This was worse than the launch had been, and launches failed.

  The FAA’s attorney, Herbert Crown, didn’t look nervous, maybe a little predatory. He looked to be in his forties, not far from Caleb’s own age, a dark-haired man soft about the middle with a lawyer’s shoulders, rounded and pushing forward. His suit was not as well tailored as Caleb’s.

  The formalities begun and dispensed with in seconds, the judge turned her pale eyes on Caleb. “Mr. Newgate?”

  As the proponent of the order, he went first. His throat was dry again, but his voice came out evenly enough. “Your honor. My client Long Shot requests that you order the FAA to cease attempting to enforce a non-self-executing treaty provision. Because the Outer Space Treaty says the United States has to regulate and supervise the activities of its nationals in outer space, and because Long Shot’s settlement doesn’t have a nonexistent license to establish a settlement on Mars, the FAA has denied a license for Long Shot’s next launch. The FAA claims the treaty requires it to deny the license. This is incorrect. The treaty obligation falls on Congress, which must first decide that a space settlement needs a license and pass a law saying that, before the Executive branch has anything to enforce. In Medellin the Supreme Court held that even the President can’t enforce a non-self-executing treaty. If the President can’t, neither can the FAA. Peoples’ lives depend on that.”

  Judge Ney stared at him long and hard. “Perhaps they should have applied for a launch license for their first launch, Mr. Newgate? Is that why you didn’t get yesterday’s license?”

  “That is a separate issue, Judge,” Caleb said. “The FAA has not relied on that, and Long Shot is in discussions about the fine it will have to pay for its first launch.”

  The judge’s eyes narrowed. “Part of the cost of doing business, Mr. Newgate? I hope the FAA fines you appropriately. I disapprove of companies factoring financial penalties into their business models. As you have done.”

  When he didn’t reply—what was there to say to that, after all?—the judge turned to the FAA. “Mr. Crown?”

  As Caleb seated himself and Crown rose, the FAA’s attorney gave the judge a collegial smile, the kind that suggested they were both government employees and he was sure she would agree with him. The courts were separate from the executive branch, Caleb reminded himself. He didn’t need to get paranoid, but he was well aware how much the courts deferred to the agencies. That deference had started long ago and was well entrenched in the judiciary.

  What had he been thinking? Why had he let them go? The truth was he couldn’t have stopped them. Their legal risk was just one of many.

  Crown got right to it. “The law gives the FAA authority to license a launch consistent with, inter alia, the foreign policy interests of the United States. It is in the foreign policy interests of this country that it abide by its international obligations.”

  That was wrong. It drove Caleb crazy when the FAA relied on that. He had told them repeatedly on behalf of other clients that the Supreme Court had already a
ddressed this when it said the President’s own constitutionally granted foreign policy authority was not interchangeable with Congress’s legislative authority. Congress had to pass a law saying settlers needed a license.

  Caleb told himself to pay attention. Crown was still talking. “Just because Congress hasn’t passed a law regarding settlement doesn’t mean that settlement isn’t one of those space activities the treaty clearly meant to cover. In its brief, Long Shot claims that just because the treaty can’t apply to everything—like brushing one’s teeth or playing the harp in space—it applies to nothing. This is clearly incorrect, as we have seen from Congress passing laws to regulate launch, reentry, and telecommunications and remote-sensing satellites.”

  It was frustrating to have to wait to his turn to respond to all this. For one thing, he’d made the point about the lunar harpist not to say that the treaty applied to no activities, but to say that because the treaty required the kinds of decisions that Congress made, namely, what activities needed licensing, the Executive Branch had to wait for Congress to say space settlement required a license before the FAA could say the treaty required it. Congress was in charge of deciding what activities required a license. In other words, the FAA couldn’t enforce a law Congress hadn’t passed.

  This did not deter the FAA, but when Crown wound down, Judge Ney leaned back from her lofty altitude. The ceiling lights did not shine directly on her face, but he could see the glittering eyes. His throat felt tight. His people’s fate lay in this woman’s hands. Sure, they’d tried to launch sooner than necessary figuring the FAA would do exactly what it had done. But appeals might mean death for them if not for him. That’s why they’d left him behind. He had a job to do.

  “Mr. Newgate,” the judge said, “what do you have to say to all this?”

  Caleb swallowed and rose to his feet. “We have three branches of government,” he said. His voice was hoarse at first, but grew stronger. “Congress is the legislative branch. It writes the laws. It might be hard for the agencies in the executive branch to remember, because Congress has delegated them so much of its legislative powers, but they do have to wait for the initial delegation.”

  She showed no change in expression. “Does the treaty require that settlement be licensed?”

  “It doesn’t say,” Caleb replied.

  “Do you think it requires the regulation of any activities?”

  He had to be careful here. “That’s up to Congress, not to me, and not to the FAA.” Or you, he thought. “If I were in Congress I would note that the treaty makes the United States responsible for the activities of its nationals. If I worried that my citizens were doing something dangerous that might harm the people of another country, I might want government oversight of that dangerous activity.” Not really, he thought. But I only said “might.” I might not.

  “If I may,” Crown interjected. “If Congress doesn’t act, we must. We have treaty obligations.”

  “But you don’t know what they are until Congress tells you,” Caleb replied quickly. It was tricky, responding to opposing counsel rather than sticking only to the judge’s questions. Some judges didn’t like that.

  This one didn’t. Sure, Crown had strayed first, but it was Caleb she glared at. “Do you understand the flaw in your argument, Mr. Newgate?”

  Caleb froze. Maria hadn’t entered his mind since the judge appeared. Now he thought of her watching from her classroom as the young harridan who taught her gloated. He thought of the travelers on the spaceship watching from space suddenly filled with despair as their lawyer let them down. That he thought of them second filled him with guilt.

  “I see no flaw, your honor. The treaty requires an action from Congress, but gives little guidance as to what activities require authorization. It can’t mean everything we do in space. Congress hasn’t said settlement requires a license or any other form of authorization. Nonetheless, the Supreme Court has said that a non-self-executing treaty such as this is not enforceable. Therefore, the FAA, which is only part of the Executive Branch, doesn’t get to enforce it.”

  The judge’s lips curved. “Then what am I to do?”

  “Wait for Congress to pass a law saying settlement requires licensing.”

  “And that’s where you’re wrong.”

  His mind raced. He knew she was toying with him, but nothing in the FAA’s brief, nothing in its lawyer’s statement so far, told him what the hell she could be talking about.

  “Ma’am.” He said it blankly, baldly, unwilling to play anymore.

  “The FAA is saying your clients need a license to live.” She leaned forward triumphantly. “You might want to parse your activities more broadly. Stop focusing on settlement, or farming, or playing harps or whatever they plan to do on Mars. The biggest activity they are doing is living. The FAA wants to license that.”

  Caleb’s heart soared, almost choking him.

  Crown, who had not sat down, was rocking forward on the balls of his feet. “There are other activities the treaty could require licenses of. Interplanetary transport. Habitat operation. Farming. Mining.”

  “But you’re changing your story, Mr. Crown. Your brief mentioned none of that.” She looked puzzled, as if wondering how the government’s lawyer had not caught on: she was not on his side.

  “I’m mentioning it now,” Crown said sincerely.

  “How about setting the table? Should setting the table on Mars require a license?”

  “No,” Crown protested, visibly annoyed at her frivolity. “We wouldn’t do that. That would be pointless.”

  “So Mr. Newgate is right, you are taking on Congress’s role and deciding what does and doesn’t need a license.”

  “We are enforcing a treaty,” Crown insisted.

  “One that tells Congress to pass a law,” the judge said. “The FAA doesn’t get to do that.” Caleb felt a little giddy again. She agreed. With him. With the Supreme Court. With Long Shot. “That is the easy part.”

  She turned back to Caleb. “What I don’t understand is why you spent the whole brief on what is obvious. Of course this treaty provision leaves it to Congress to decide what needs authorized. Of course if Congress doesn’t say something needs licensed it doesn’t. And of course the FAA can’t enforce a law Congress hasn’t passed.”

  The judge was immobile but ablaze, a woman somewhere in her fifties with a Valkyrie’s braid and maybe the heart of an explorer. Caleb knew nothing of her. She was new to the bench and he hadn’t had time to research her.

  She turned on Caleb. “But you, sir, should have addressed the issue of whether the government can require a license to live. I am disappointed that someone representing such a venture would ignore such a fundamental question.”

  Caleb worked hard not to smile. It didn’t matter that Maria might not understand he’d won until he got home to tell her, or that her teacher certainly wouldn’t. His client would get its launch. His friends would live, even without government approval.

  He couldn’t help it. He grinned. “Your honor, I am disappointed, too. Next time, I will be ready to address that.”

  She turned and addressed the room at large, bringing her gavel down without excess. “Motion granted to Long Shot. The FAA shall not deny the license on the basis of the treaty.”

  * * *

  The elation was real. He need only worry about Maria now. He would have to explain. His phone burred on his wrist.

  One didn’t look at one’s phone or watch in front of a judge. Carefully, he laced his fingers and stretched them in front of him, a gesture of relief; nothing more, not an attempt to catch the phone’s screen. An emoji from Maria flashed into his peripheral vision. It was a thumb’s up.

  •

  Sarah A. Hoyt won the Prometheus Award for her novel Darkship Thieves, published by Baen, and has also authored Darkship Renegades (nominated for the following year’s Prometheus Award) and A Few Good Men, as well as Through Fire and Darkship Revenge, novels set in the same universe, as was “Ange
l in Flight,” a story in the Baen anthology, A Cosmic Christmas. Her latest bestseller is Monster Hunter International: Guardian, a collaborative novel with Larry Correia set in his New York Times bestselling series. She has written numerous short stories and novels in science fiction, fantasy, mystery, historical novels and genre-straddling historical mysteries, many under a number of pseudonyms, and has been published—among other places—in Analog, Asimov’s and Amazing Stories. For Baen, she has also written three books in her popular shape-shifter fantasy series, Draw One in the Dark, Gentleman Takes a Chance, and Noah’s Boy. She has a strong online presence, with an impressive number of novels and story collections available as e-books, and her According to Hoyt is one of the most outspoken and fascinating blogs on the internet, as is her Facebook group, Sarah’s Diner. Originally from Portugal, she lives in Colorado with her husband, near her two sons and “the surfeit of cats necessary to a die-hard Heinlein fan.”

  Laura Montgomery is a practicing space lawyer who writes space opera and near-future, bourgeois, legal science fiction. Her most recent book, Simple Service, starts a new series in the popular universe of her Waking Late trilogy. Mercenary Calling is her most recent near-future novel, and follows one man’s efforts to save a starship captain from charges of mutiny. Her author site is at lauramontgomery.com. On the legal side, Laura’s private practice emphasizes commercial space transportation and the Outer Space Treaties. Before starting her own practice, she was the manager of the Space Law Branch in the FAA’s Office of the Chief Counsel, where she supported the regulators of commercial launch, reentry, and spaceports. There she worked on issues ranging from explosive siting to property rights in space. She has testified to the space subcommittees of both the House and Senate, and is an adjunct professor of space law at Catholic University’s Columbus School of Law. She writes and edits the space law blog GroundBasedSpaceMatters.com and speaks regularly on space law issues. She lives outside Washington, D.C., with her husband and dogs.