//  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 Real Problem with Seila

8/24/20  //  In-Depth Analysis

Seila Law LLC v. Consumer Financial Protection Bureau that tenure protection for the Director of the Consumer Financial Protection Bureau is unconstitutional. The decision’s reasoning may be more important—and worrisome—than the holding itself.

Zachary Price

U.C. Hastings College of the Law

Roberts’ Rules: How the Chief Justice Could Rein in Police Abuse of Power 

8/19/20  //  In-Depth Analysis

A theme of Chief Justice John Roberts’ opinions this past term is that courts should not employ open-ended balancing tests to protect fundamental constitutional rights. Yet there is one area of the Supreme Court’s constitutional jurisprudence that is rife with such amorphous balancing tests: policing. It is long past time for the Court to revisit this area of law.

The Federal Judiciary Needs More Former Public Defenders

8/3/20  //  Commentary

By Orion de Nevers: The composition of President Trump’s record-setting number of judicial appointments has been widely criticized for its overwhelmingly white-male skew. But another, quieter, source of troubling homogeneity has also emerged: President Trump is loading the bench with former prosecutors.

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