There’s been a lot of whining from the Ares huggers about how NASA is “violating the law,” by shutting down Constellation in the face of the appropriations language. Now, I think that continuing Constellation is horrible policy, both from the standpoint of taxpayers and space enthusiasts, but I haven’t had any strong sense of or opinions on the legality of continuing it or not, and was sort of resigned to it continuing to zombie into next year until we finally get some sort of actual appropriations bill (as opposed to a continuing resolution. But now, it turns out that actually, Mike Griffin was violating the Anti-Deficiency Act, a much older (over a century, I think) law that requires that funds be available for contract termination. Jim Muncy explains in comments over at NASA Watch. I’m pulling it up to the front page here.

[Update a few minutes later[

Jeff Foust has more at Space Politics (including another Muncy comment). But follow over the fold for Jim’s thoughts:

Folks,

I think I understand both the frustration of the JSC guys — especially Mr. Lumpkin, who seems like he has his head screwed on well — and my friend Keith. And as someone who has worked in the Executive Office of the President AND on the Hill, I would like to point out a few painful realities to those who honestly believe NASA is bound by law to continue Constellation as if nothing were going to change.

First of all, Congress did not forbid any changes in the Program of Record. The actual appropriations LAW, as opposed to the report language, forbade total cancellation of any projects during FY2010, unless Congress spoke again. The Executive Branch, as a matter of precdent, has never accepted that they are bound by “report language” as opposed to explicit provisions of law.

Now, note that this doesn’t mean that programs can’t be “slowed down”.

Furthermore, federal contractors are usually entitled to some amount of funds for cancellation penalties if a program is terminated. Those usually pass thru to subcontractors also. But prime contractors have the choice as to whether to believe the government will eventually pay them from a future appropriation, or to keep enough money in escrow to pay these costs.

This Administration has decided that Lockheed and ATK are responsible for those costs, and must not spend remaining FY2010 funds on actual work, but hold on to them for termination costs.

Therefore, in effect, work on Constellation is stopping.

What Keith is saying, in so many words, is that Cx management at JSC has been trying to get aroudn this direction, and continue spending money on actual Constellation progress. this may indeed be in keeping with the intent of Senator Shelby and others in Congress, but it is not what the explicit letter of the law says.

The Antideficiency Act, and various procurement laws, also bind NASA to do certain things, including retaining funds for contract cancellation.

The Constellation contractors hate this, since they want their projects to continue. So do the folks who have been loyally trying to make Constellation work, like the new Cx lead guy.

The painful reality that nobody, especially several Members of Congress from MY affiliated party (GOP), want to acknowledge, is that the money simply does not exist to make Constellation successful. IMHO Constellation can never be made affordable and sustainable, because it just isn’t. But the money doesn’t exist to force thru the sausage grinder into contracts to actually make hardware that flies in space. It will be like Space Station, in slow-motion hibernation as the work and spending drags on, year after year, until it gets cancelled by some other President.

This is what Augustine said. Constellation is not executable inside the current budget. You don’t have to like it or even agree, but you cannot prove that it is executable. That there is a high probability path to complete Ares 1 and Orion and then Ares 5 and Altair inside the budget runout as reduced by both Bush and Obama. And therefore it will fail.

To the extent that any managers at JSC are in denial about this, and trying to keep the program of record going in the hope that Congress will turn Republican — as Hanley himself said openly — then that’s just not following Adminstration direction, which is that Constellation must ramp down and (in FY2011 end) before we waste any more money on a dead-end path.

If folks want to say that this direction is unlawful, then they should say so publicly and possibly resign. But ultimately the question of legality is between the White House and Congress… it is not a question for GS-14s or even SESes at JSC to decide.

Those would want this situation to be different, who feel incredibly betrayed because the program they have worked so hard on for 5 years is crashing at burning thru no fault of theirs, may have every right to those feelings. But they do not have the right to ignore direction.

God knows I wish Charlie were more crystal clear in his direction. But those who choose to use his tolerance of some dissension to abuse their obligation to follow the President’s direction do neither NASA nor Charlie any service.

Submitted with huge respect for all the great folks at JSC (and elsewhere) trying to keep America #1 in space…

He follows up, a few comments down, in response to continuing complaints:

There is a difference between cancellation of the program, and slowing down spending on the program in preparation for shut down on October 1st, the beginning of FY2011. The former, if carried out in FY2010, would violate the letter of the law. The latter does not.

More importantly, if there is not enough money left in FY2010 to carry out the original plan to continue spending on the Constellation projects AND keep a reserve for paying cancellation costs, then spending can stop. I realize this is a terrible way to run the program, but it’s also a requirement of existing laws.

It would have been much better if Congress hadn’t posited in the FY2010 appropriation that the Augustine report didn’t exist and there was no reason to change direction until FY2011. If Congress had wanted to explicitly say in law don’t make any changes, don’t slow down, ignore termination and antideficiency requirements… then they could have. They didn’t.

Instead, they said “don’t cancel”. So the Administration isn’t canceling the programs. They are simply honoring ALL of the laws they must, while trying to move to a sustainable and affordable program in FY2011 that can survive future budget problems, which we already see coming up with the new proposed 5% reduction in discretionary spending.

Congress has forced the Administration to waste billions on the old program in FY2010. Instead of yelling and screaming about saving Constellation, Congress should have tried to work with the Administration this year to pursue an affordable path. Facing bipartisan ‘roid rage’ from Congress, the hangover from Dr. Griffin’s big promises, the White House and NASA senior leaders have had to spend money in FY2010 on Constellation so long as money was left to do so, while starting to plan for FY2011.

As for your comments about political favoritism and bailouts and such… hey, I’m a republican. I didn’t vote for this president and I don’t support 95 percent of what he is doing. But I agree with what he is doing on space. In so many ways I think it is a more effective implementation of the original Bush Vision than Apollo on Steroids ever was.

Congress had an opportunity last year to add money to NASA’s budget so they could afford to pursue Constellation, for at least another year. Congress has already passed supplemental and other bills this year that could have added money to NASA. But the defenders of Constellation cannot get 218 votes in the House and 51 votes for adding billions per year.

You may not like this. But it is political reality. You may not share the White House’s or Congress’ priorities. But the system does reflect, broadly speaking, public views. You may argue that the public don’t understand the importance of space. Fine. We live in a democracy that doesn’t require people to know everything about everything in order to vote for Congress or President. As Churchill said, it’s the worst possible system, except for all the others.

Finally, even if it were possible to add billions of dollars to NASA’s budget, I would still argue that it would be much better to change the underlying exploration architecture and strategy to one that lowered fixed and variable costs, instead of designing everything for the mythical Mars reference mission that is at least a couple decades away. I would pick an affordable, extensible, incremental, get-smarter-and-cheaper-as-I-go approach, much as that offered by Augustine option 5B. Then I would use the extra money to just fly a lot more exploration missions sooner, demonstrating mroe results for the taxpayers and actually EARNING more political support for continued increased funding, even as other discretionary agencies get slashed during the baby boomer entitlement explosion over the next couple decades.

I expect a lot of my friends will be angry with me now, but I do have this crazy notion that we should base our plans on budgetary and political reality, instead of the way we would like things to be. Water is wet, rocks are hard, gravity sucks, and reality is reality. Children throw tantrums about reality, while adults accept reality… and then start to change it. I prefer to be an adult.

It’s a shame that there are so many non-adults running space policy, and that has been the case for decades.