//  10/10/19  //  Commentary

The White House issued a surprise announcement Sunday evening that President Trump would withdraw U.S. forces from northeastern Syria at Turkey’s request, thus exposing Kurdish allies who fought with the United States against ISIS to a Turkish military operation that is now underway.  This policy provoked a rare show of bipartisan unity in Congress:  Both Democrats and Republicans urged the President to reconsider.

Congress could have done more than urge, however.  For reasons I explain in this article on Congress’s appropriations power, Congress can in fact require the President to keep troops in particular locations.  Although the President is Commander in Chief of U.S. forces, the choice to provide any forces for him to command is entirely up to Congress.  Not only does the Constitution give Congress express authority to “raise and support Armies” and “provide and maintain a Navy”; it also expressly forbids any expenditure of government funds except “in Consequence of Appropriations made by Law.”

Any constitutional authority the President might have to use or deploy military force is accordingly “resource-dependent,” as I put it in the article.  The President is thoroughly dependent on Congress’s funding choices, and in consequence Congress is free to impose almost any conditions or restrictions it likes on military resources. 

To be sure, Congress typically employs this authority negatively, forbidding particular military operations or other government actions.  But there is no reason why it cannot use the same power affirmatively.  Indeed, although some presidents historically claimed a power to “impound,” or decline to spend, certain military or domestic appropriations, Congress, the courts, and even executive-branch lawyers have made clear that the President holds no such general authority to decline to make mandated expenditures.  Requiring that certain foreign military installations be kept open would simply be a particularly strong exercise of this power to compel executive spending and mandate executive priorities.  (Incidentally, for the same reason, Congress can also require foreign aid for certain countries, like, say, Ukraine.)

Events may have moved too quickly to undo Trump’s action in this instance.  But this power is one Congress should keep in mind as it considers new military appropriations, whether for forces in Syria or in Europe, South Korea, or elsewhere.  Although Congress has generally judged it prudent to give the Commander in Chief wide discretion over the disposition of U.S. forces, maintaining such discretion is ultimately a legislative choice, not a constitutional requirement.

The DACA Decision is Trouble for Discrimination Law

6/24/20  //  Commentary

The Dreamers’ victory has been celebrated as a sign that the Court is above partisanship and willing to serve as a check on executive branch abuses. But the price of that victory was a defeat for the Constitution’s guarantee of equal protection.

Jessica Clarke

Vanderbilt Law School

Versus Trump: The Military in the U.S. and Proxy Voting in the House

6/7/20  //  In-Depth Analysis

On this week’s Versus Trump, Jason and Charlie take on two topics. First, what can the president legally do to use the military on American soil? Second, is it legal for the House of Representatives to vote by proxy, without being physically present in D.C., as alleged in a new lawsuit by House Republicans? Listen now!

Charlie Gerstein

Civil Rights Corps

Executive Branch Inconsistency on Congressional Standing

4/27/20  //  Commentary

By Ashwin Phatak: Although DOJ has recently taken the position in litigation that the House of Representatives lacks standing to bring a civil action to enforce a subpoena against an Executive Branch official, that position conflicts with prior DOJ precedents

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