Space Tourism and Export Controls: A Prayer for Relief

The recent emergence of the commercial human spaceflight industry is a transformative moment in the history of mankind. Multiple space tourism companies are planning to send private passengers on suborbital flights in the coming years, private spaceports are being built around the world, and at least one company, Bigelow Aerospace, is planning to build private space stations. Moreover, the new U.S. Space Policy recently announced by the Obama administration promises to accelerate the development of the spaceflight industry by relying on private companies to meet governmental needs, such as ferrying goods and people to the International Space Station. This article examines the applicability of the United States’ export control regime to the human spaceflight industry and argues that the space tourism companies that stand at the forefront of the industry should be granted an exemption from the burdensome ITAR regulations that threaten their survival. As part of the analysis, the article discusses a recent landmark ruling by the Directorate of Defense Trade Controls which granted a significant exemption from these export controls to Bigelow Aerospace in order to ease the company’s regulatory burden as it moves forward with its plans to place private space stations into orbit. The article also considers the Bigelow ruling in the greater context of administrative law and argues that the ruling provides a striking example of how administrative agencies can assume the roles of our constitutional organs of government when those institutions are paralyzed by party factionalism and political pressures