//  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.

Impeachment and Congress's Power of the Purse

10/29/19  //  Commentary

The President does not have constitutional authority to withhold foreign aid that Congress has mandated by statute.

Zachary Price

U.C. Hastings College of the Law

Recognizing a Damages Remedy for Cross-Border Shootings

10/15/19  //  In-Depth Analysis

In Hernandez v. Mesa, the Supreme Court should hold that victims of cross-border shootings have a cause of action to seek damages against law enforcement officers who violate the Constitution

Versus Trump: Can You Hear The Whistle Blowing?

9/25/19  //  In-Depth Analysis

On this week's episode of Versus Trump, Charlie and Jason discuss the legal stakes of the fight over what Trump said to the President of Ukraine and the related whistleblower complaint. A lot happened between when they recorded the episode and when it's being posted, but we still think it's a useful primer on the legal questions in this dispute. Listen now!

Charlie Gerstein

Civil Rights Corps