//  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.

How Does The House Decide To Sue?

1/3/20  //  In-Depth Analysis

Since 2015, lawsuits by the House of Representatives have been authorized not by a vote of the full House but by majority of a standing, 5-member committee. Is this structure constitutional?

Impeachment Trials and the Senator’s Oath of Impartial Justice

12/19/19  //  Commentary

Senators who vote on removal following impeachment trials must take an oath akin to that of a juror. The oath requires them to be impartial and vote regardless of the president's party affiliation. Will Senators do that here?

Ira C. Lupu

George Washington University Law School

Robert W. Tuttle

George Washington University Law School

The Contempt of William G. Barr

11/22/19  //  Commentary

Attorney General Barr recently said that "the Left that is engaged in the systematic shredding of norms and the undermining of the rule of law." Barr's outright partisanship relies on misunderstandings of history and a misguided view of the role of the attorney general.

Peter M. Shane

Ohio State, Moritz College of Law