It sounds like the somewhat implausible plot for a summer action flick. Not long into the running time, the roguish anti-hero leans in close to a former love interest and says with wild eyes, "That's right! We're going to steal a space shuttle!" This is followed by a look of stunned disbelief on the face of their companion as the soundtrack swells in the background.
Instead of blaming thieves in black clothing doing gymnastics over the beams from laser security systems, the Smithsonian is calling out a robbery in plain sight. Tucked into the recent budget bill was a variation of S.1403, the Bring the Space Shuttle Home Act. It failed to get out of committee as a bill. Legal legerdemain allowed it to order the Smithsonian to hand Space Shuttle Discovery over to the National Aeronautics and Space Administration (NASA) for transfer to Houston, Texas.
Unfortunately for NASA and the Texas senators behind the Act, the Smithsonian isn't interested in complying. Citing proof of ownership and backed by precedent, the national museum noted that the amount allocated to move and house Discovery is likely a small fraction of the actual funds required. Can the Smithsonian shoot this Act directly into the Sun? As expected, interpreting the involved laws is a bit of a black hole.
A Reusable Space Vehicle? Is That Even Possible? (Yes)
NASA's space shuttle orbiter program was the first to design and use vehicles capable of both orbiting the planet and being used for multiple missions. Starting in 1981, the program launched 135 missions over 30 years. In addition to allowing the performance of countless experiments in low Earth orbit and aiding in the construction of the International Space Station, the space shuttles were invaluable for crew rotations and servicing missions.
Perhaps the most successful of the five fully operational shuttles built, Discovery flew 39 missions over 27 years of service and spent almost a full year of cumulative time in space. The oldest surviving shuttle orbiter, Discovery, was awarded to the Smithsonian in 2011 when NASA found homes for the decommissioned spacecraft. It was housed in the Steven F. Udvar-Hazy Center just outside of the District of Columbia. An investigation by NASA's inspector general in 2012 determined that the agency had made the proper decisions regarding the locations for the shuttles.
The Smithsonian is a unique entity. Far more than just a museum, it's home to national treasures such as the flag that inspired the Star-Spangled Banner, George Washington's uniform from the American Revolutionary War, and Abraham Lincoln's top hat. It also contains items like the Hope Diamond, the original Kermit the Frog puppet, and Charles Lindbergh's Spirit of St. Louis plane.
It also carries a special status as a trust instrumentality, which makes it a public trust created by Congress. However, it's different from other federal agencies. While largely funded by Congress, the Smithsonian is not under their oversight and operates independently. It's under the administration of a Board of Regents, the leader of which is the Chief Justice of the U.S. Supreme Court. It also includes the Vice President, six members of Congress, and nine citizen regents (civilians).
Any items or artifacts donated become the property of the Smithsonian and not federal property. This was affirmed by the U.S. Supreme Court in 1898.
You Might Need More Than a U-Haul
Legislators altered the Shuttle Act to comply with Senate reconciliation rules and fold it into the budget bill. The Act also avoided naming the space vehicle to be moved to Houston, making that part of the NASA Administrator's responsibility in the aftermath of the budget's passing. This echoes the Trump administration's attempt to defund Planned Parenthood through the budget bill without directly naming the organization.
Aside from the Smithsonian's insistence that it legally owns Discovery, there are other issues raised by the Bring the Space Shuttle Home budget provision. The $85 million earmarked for the shuttle's transportation and construction of its new home in Houston was determined by the Congressional Research Service to be about 1/4 of a realistic final cost estimate.
NASA has until August 3, 2025, to announce which space vehicle will be moved. With little doubt, it will be Discovery. The logistics of actually moving the 120+ foot-long and 78-foot-wide Orbiter have yet to be addressed. The special mechanisms used to mount and secure the space shuttle on airplanes for transport in 2012 are no longer functional, and removing the wings is not an option.
It may seem unfathomable that a budget bill could overturn the Smithsonian's unique status and precedent, but the administration shows no indication of backing away from its intentions. With the Smithsonian taking a defiant stance, it seems likely that the battle for this piece of history will be waged in a courtroom.
Related Resources
- Budget Bill Contains Small Provision Seeking to Render Previous Judicial Contempt Orders Unenforceable (FindLaw's Federal Courts)
- Congressional Spending and Borrowing Power (FindLaw's U.S Constitution)
- What Is a Trust? (FindLaw's Learn About the Law)
