Congressional Authority To Limit U.S. Military Operations in Iraq

Congressional Authority
to Limit U.S. Military Operations in Iraq
Updated February 27, 2008
Jennifer K. Elsea, Michael John Garcia, and Thomas J. Nicola
Legislative Attorneys
American Law Division

Congressional Authority
to Limit U.S. Military Operations in Iraq
On October 16, 2002, President Bush signed the Authorization for Use of
Military Force Against Iraq Resolution of 2002. Since the March 2003 invasion of
Iraq, Congress has enacted appropriation bills to fund the continuation of the Iraq
war, including military training, reconstruction, and other aid for the government of
Iraq. In April, 2007, however, Congress passed a supplemental appropriations bill
to fund the war that contained conditions and a deadline for ending some military
operations. The President vetoed the bill, arguing in part that some of its provisions
are unconstitutional. The current dispute is centered on whether Congress has the
constitutional authority to legislate limits on the President’s authority to conduct
military operations in Iraq, even though it did not initially provide express limits.
Specific issues include whether Congress may, through limitations on appropriations,
set a ceiling on the number of soldiers or regulate which soldiers the President may
assign to duty in Iraq, and whether an outright repeal or expiration of the
authorization for use of military force (AUMF) against Iraq would have any effect.
It has been suggested that the President’s role as Commander in Chief of the
Armed Forces provides sufficient authority for his deployment of troops, and any
efforts on the part of Congress to intervene could represent an unconstitutional
violation of separation-of-powers principles. While even proponents of strong
executive prerogative in matters of war appear to concede that it is within Congress’s
authority to cut off funding entirely for a military operation, it has been suggested
that spending measures that restrict but do not end financial support for the war in
Iraq would amount to an “unconstitutional condition.” The question may turn on
whether specific proposals involve purely operational decisions committed to the
President in his role as Commander in Chief, or whether they are instead valid
exercises of Congress’s authority to allocate resources using its war powers and
power of the purse.
This report begins by providing background, discussing constitutional
provisions allocating war powers between Congress and the President, and presenting
a historical overview of relevant court cases. It discusses Congress’s power to
rescind prior military authorization, concluding, in light of relevant jurisprudence and
the War Powers Resolution, that the repeal of the AUMF, absent the further denial
of appropriations or the establishment of a specific deadline for troop withdrawal,
would likely have little, if any, legal effect on the continuation of combat operations.
The report discusses Congress’s ability to limit funding for military operations in
Iraq, examining relevant court cases and prior measures taken by Congress to restrict
military operations, as well as possible alternative avenues to fund operations if
appropriations are cut. There follows a summary of relevant measures included in
the vetoed FY2007 supplemental appropriations bill, H.R. 1591, and the enacted act,
H.R. 2206. The report provides historical examples of measures that restrict the use
of particular personnel, and concludes with a brief analysis of arguments that might
be brought to bear on the question of Congress’s authority to limit the availability of
troops to serve in Iraq. Although not beyond debate, such a restriction appears to be
within Congress’s authority to allocate resources for military operations.

In troduction ......................................................1
Background ......................................................2
I. Constitutional Provisions..........................................3
Congress’s War Powers.........................................5
The Commander-in-Chief Clause.................................9
II. Repeal of Prior Authorization to Use Military Force...................16
Historical Practice............................................17
Rescinding Military Authorization Versus Cutting Appropriations:
Procedural and Other Considerations.........................19
Legal Consequences of Congressional Rescission of Military
Authorization, Absent Additional Congressional Action..........21
Judicial Interpretation.....................................21
Implications of the War Powers Resolution....................26
Inherent Presidential Authority to Use Military Force
Absent Congressional Authorization......................28
III. Use of the Power of the Purse to Restrict Military Operations...........29
Procedural Considerations......................................31
Availability of Alternative Funds................................33
Redeployment from Iraq: Provisions in the Vetoed Supplemental.......36
Criteria Relating to Troops.................................36
Benchmarks for Iraqi Government and Dates for Redeployment....37
Other Restrictions........................................38
Provisions from the Enacted Supplemental, P.L. 110-28..............38
Provisions from the Consolidated Appropriations Act, P.L. 110-161.....40
IV. Limiting Deployment of Military Personnel.........................41
Analysis and Conclusion...........................................44

Congressional Authority to Limit
U.S. Military Operations in Iraq
On May 1, 2007, President George W. Bush vetoed the U.S. Troop Readiness,
Veterans’ Care, Katrina Recovery, and Iraq Accountability Appropriations Act, H.R.
1591, in part because of measures designed to limit the U.S. military role in Iraq. He
called the bill “unconstitutional because it purports to direct the conduct of
operations of war in a way that infringes upon the powers vested in the presidency
by the Constitution, including as commander in chief of the Armed Forces.”1 The
next day, the House of Representatives voted to approve the bill by a vote of 222 to

203, failing to muster the two-thirds majority necessary to override the veto.2

Congress then passed a new version of the supplemental appropriations bill, H.R.
2206 (P.L. 110-128), without providing timetables for withdrawal from Iraq, but
conditioning the release of reconstruction assistance to Iraq on achievement of certain
benchmarks by the Iraqi government, unless the President waives the requirements.3
The House of Representatives agreed to vote on a withdrawal deadline when it takes
up FY2008 supplemental appropriations, which is expected in September.
As Congress considers defense authorization and appropriations bills for
FY2008, there may be a renewed focus on whether or to what extent Congress has
the constitutional authority to legislate limits on the President’s authority to conduct
military operations in Iraq. Congress may consider measures, for example, to repeal
the authorization to use force in Iraq, to set deadlines for the withdrawal of most
troops from Iraq, to set requirements for unit rotations into Iraq, or to make other
requirements that could affect the deployment of armed forces to Iraq.
It has been suggested that the President’s role as Commander in Chief of the
Armed Forces provides sufficient authority for his deployment of additional troops,
and any efforts on the part of Congress to intervene could represent an
unconstitutional violation of separation-of-powers principles. While even proponents
of strong executive prerogative in matters of war appear to concede that it is within
Congress’s authority to cut off funding entirely for a military operation, it has been
suggested that spending measures that restrict but do not end financial support for the

1 153 CONG. REC. H4315 (daily ed. May 2, 2007) (President’s veto message), also available
at [].
2 Id. at H4326.
3 For a detailed analysis of the FY2007 supplemental appropriations bills, see CRS Report
RL33900, FY2007 Supplemental Appropriations for Defense, Foreign Affairs, and Other
Purposes, by Stephen Daggett et al.

war in Iraq would amount to an “unconstitutional condition.”4 The question may turn
on whether the President’s decisions on troop deployment and mission assignment
are purely operational decisions committed to the President in his role as Commander
in Chief, or whether congressional action to limit the availability of troops and the
missions they may perform is a valid exercise of Congress’s authority to allocate
resources using its war powers and power of the purse.
On October 16, 2002, Congress passed and President Bush signed the5
Authorization for Use of Military Force Against Iraq Resolution of 2002. While the
President noted he had sought a “resolution of support” from Congress to use force
against Iraq, and appreciated receiving that support, he also stated that:
... my request for it did not, and my signing this resolution does not, constitute
any change in the long-standing positions of the executive branch on either the
President’s constitutional authority to use force to deter, prevent, or respond to
aggression or other threats to U.S. interests or on the constitutionality of the War6
Powers Resolution.
The President indicated he would continue to consult with Congress and to submit
written reports to Congress every 60 days on matters relevant to the resolution to use7
force, which authorizes the President to use the armed forces of the United States
as he determines to be necessary and appropriate in order to (1) defend the
national security of the United States against the continuing threat posed by Iraq;
and (2) enforce all relevant United Nations Security Council resolutions
regarding Iraq.
The statute required certain conditions to be met prior to the initiation of military
operations and made periodic reports to Congress mandatory, but did not set a
timetable or any criteria for determining when to withdraw troops from Iraq. It
appears to incorporate future UN Security Council resolutions concerning Iraq that
may be adopted by the Security Council as well as those adopted prior to its
enactment, effectively authorizing military force not only to compel disarmament but
to carry out other functions necessary for achieving the goals adopted or that may be
adopted by the Security Council. Thus, it appears that the resolution authorizes force

4 See, e.g., David B. Rivkin Jr. and Lee A. Casey, What Congress Can (And Can’t) Do on
Iraq, WASH. POST (January 16, 2007) at A19; see also Charles Tiefer, Can Appropriation
Riders Speed Our Exit from Iraq?, 42 STAN. J. INTL L. 291(2006)(predicting arguments that
would be made to oppose congressional funding restrictions).
5 P.L. 107-243; 116 Stat. 1498. For more background, see CRS Report RL31133,
Declarations of War and Authorizations for the Use of Military Force: Historical
Background and Legal Implications, by Richard F. Grimmett and Jennifer K. Elsea.
6 See President’s Statement on Signing H.J.Res. 114, October 16, 2002, available at
[ /Archive/2003/Oct/09-906028.html ].
7 Id.

deemed necessary by the President for so long as Iraq poses a continuing threat to the
United States and the U.S. military presence is not inconsistent with relevant U.N.
The resolution does not itself stipulate limitations with respect to the amount of
force that may be used or the resources that may be expended to accomplish the
authorized objectives; however, Congress may set limits by means of legislation or
the budgeting process. The Department of Defense has some latitude regarding how
it allocates funds for various operations, and may have additional statutory authority
to obligate funds without additional prior express authorization from Congress.
I. Constitutional Provisions
At least two arguments support the constitutionality of Congress’s authority to
limit the President’s ability to increase or maintain troop levels in Iraq. First,
Congress’s constitutional power over the nation’s armed forces provides ample
authority to legislate with respect to how they may be employed. Under Article I,
§ 8, Congress has the power “To lay and collect Taxes ... to ... pay the Debts and
provide for the common Defence,”“To raise and support Armies,” “To provide and
maintain a Navy,” “To make Rules for the Government and Regulation of the land
and naval Forces,” and “To declare War, grant letters of Marque and Reprisal, and
make Rules concerning Captures on Land and Water,” as well as “To provide for
calling forth the Militia to execute the Laws of the Union, suppress Insurrections and
repel Invasions” and “To provide for organizing, arming, and disciplining, the
Militia, and for governing such Part of them as may be employed in the Service of
the United States.” Further, Congress is empowered “To make all Laws which shall
be necessary and proper for carrying into Execution the foregoing Powers ...” as well
as “all other Powers vested by this Constitution in the Government of the United
States, or in any Department or Officer thereof.”
Secondly, Congress has virtually plenary constitutional power over
appropriations, one that is not qualified with reference to its powers in section 8.
Article I, § 9 provides that “No Money shall be drawn from the Treasury, but in
Consequence of Appropriations made by Law.” It is well established, as a
consequence of these provisions, that “no money can be paid out of the Treasury
unless it has been appropriated by an act of Congress”8 and that Congress can specify9
the terms and conditions under which an appropriation may be used, so long as it
does not impose an unconstitutional condition on the use of the funds.10

8 Cincinnati Soap Co. v. United States, 301 U.S. 308, 321 (1937).
9 Fullilove v. Klutznick, 448 U.S. 448, 474 (1980); South Dakota v. Dole, 483 U.S. 203,

206-07 (1987). For a scholarly treatment of the Appropriations Clause, see Kate Stith,

Congress’ Power of the Purse, 97 YALE L. J. 1343 (1988).
10 United States v. Klein, 80 U.S. (8 Wall.) 128 (1872) (holding invalid an appropriations
proviso that effectively nullified some effects of a presidential pardon and that appeared to
prescribe a rule of decision in court cases); United States v. Lovett, 328 U.S. 303

On the executive side, the Constitution vests the President with the “executive
Power,” Article II, § 1, cl. 1, and appoints him “Commander in Chief of the Army
and Navy of the United States,” id., § 2, cl. 1. The President is empowered, “by and
with the Advice and Consent of the Senate, to make Treaties,” authorized “from time
to time [to] give to the Congress Information on the State of the Union, and [to]
recommend to their Consideration such Measures as he shall judge necessary and
expedient,” and bound to “take Care that the Laws be faithfully executed.” Id., § 3.
He is bound by oath to “faithfully execute the Office of President of the United
States,” and, to the best of his “Ability, preserve, protect and defend the Constitution
of the United States.” Id., § 1, cl. 8.
It is clear that the Constitution allocates powers necessary to conduct war
between the President and Congress. While the ratification record of the Constitution
reveals little about the meaning of the specific war powers clauses, the importance
of preventing all of those powers from accumulating in one branch appears to have
been well understood,11 and vesting the powers of the sword and the purse in separate
hands appears to have been part of a careful design.12
It is generally agreed that some aspects of the exercise of those powers are
reserved to the Commander in Chief, and that Congress could conceivably legislate
beyond its authority in such a way as to intrude impermissibly into presidential
power. The precise boundaries separating legislative from executive functions,
however, remain elusive. There can be little doubt that Congress would exceed its
bounds if it were to confer exclusive power to direct military operations on an officer
not subordinate to the President,13 or to purport to issue military orders directly to
subordinate officers.14 At the same time, Congress’s power to make rules for the

10 (...continued)
(1946)(invalidating as a bill of attainder an appropriations provision denying money to pay
salaries of named officials).
11 See LOUIS FISHER, PRESIDENTIAL WAR POWER 7 (2d ed. 2004)(noting that allocation of
war powers to Congress was a break with monarchial theories, under which all such powers
belonged to the executive); id. at 8-12.
POWER OF THE PURSE 27-32(1994).
13 Congress has by statute provided that the President must issue orders to subordinate
military commands through the appropriate chain of command rather than directly. See
POWER OF CONGRESS IN HISTORY AND LAW 93(2 ed. 1989)(citing the Command of the
Army Act of 1867, 14 Stat. 485, 486-87, which required that “all orders and instructions
relating to military operations” be “issued through the General of the Army,” and made
orders issued contrary to the provision punishable by prison sentence from two to twenty
years). Congress has also authorized judges to issue orders directed to military commanders
requiring them to provide military aid to marshals for the arrest of persons accused of crimes
against the United States who were on board foreign ships in U.S. harbors. 2 Stat. 339
14 But see id. at 93-94 (asserting that during the Reconstruction period following the Civil
War, the “army was given its orders directly by Congress,” and that President Andrew

government and regulation of the armed forces provides it wide latitude for
restricting the nature of orders the President may give. Congress’s power of
appropriations gives it ample power to supply or withhold resources, even if the
President deems them necessary to carry out planned military operations.15
Congress’s War Powers
The power “To Declare War” has long been construed to mean not only that
Congress can formally take the nation into war but also that it can authorize the use
of the armed forces for military expeditions that may not amount to war.16 While a
restrictive interpretation of the power “To declare War” is possible, for example, by
viewing the Framers’ use of the verb “to declare” rather than “to make”17 as an
indication of an intent to limit Congress’s ability to affect the course of a war once
it is validly commenced,18 Congress’s other powers over the use of the military would
likely fill any resulting void. In practice, courts have not sought to delineate the
boundaries of each clause relating to war powers or identify gaps between them to
find specific powers that are denied to Congress.19
Early exercises of Congress’s war powers may shed some light on the original
understanding of how the war powers clauses might empower Congress to limit the
President’s use of the armed forces. In the absence of a standing army, early
presidents were constrained to ask Congress for support in advance of undertaking

14 (...continued)
Johnson’s efforts to circumvent the statute were cited in the ninth article of impeachment
against him, although no proof was offered at trial).
15 For a discussion of theories asserting the presidential prerogative to spend without
appropriations when necessary for military operations, see generally Colonel Richard D.
Rosen, Funding “Non-traditional” Military Operations: The Alluring Myth of a
Presidential Power of the Purse, 155 MIL. L. REV. 1 (1998); see also Major Brian A.
Hughes, Uses and Abuses of O&M Funded Construction: Never Build on a Foundation of
Sand, 2005-AUG ARMY LAW. 1 (describing how fiscal law constrains military spending,
sometimes impeding military operations).
16 Bas v. Tingy, 4 U.S. 37 (1800).
17 The Framers’ decision to substitute “declare” for “make” has generally been interpreted
to allow the President the authority to repel sudden attacks. 2 MAX FARRAND, THE
RECORDS OF THE FEDERAL CONVENTION OF 1787, 318-19 (rev. ed. 1937)(explanation of
James Madison and Elbridge Gerry on their motion to amend text).
18 Cf. John C. Yoo, War and the Constitutional Text, 69 U. CHI. L. REV. 1639, 1669-71
(2002)(arguing that “to declare” means to formally recognize rather than to authorize or
19 See 3 JOSEPH STORY, COMMENTARIES ON THE CONSTITUTION §§ 1170 - 71 (1833) (stating
that the powers to issue letters of marque and reprisal and to authorize captures are
incidental to the power to declare war, implying their express mention was unnecessary, but
noting that these “incidental” powers may also be employed during peace). But see, e.g., J.
Terry Emerson, War Powers Legislation, 74 W. Va. L. Rev. 53, 62 (1972)(arguing that early
opinions related to the Quasi-War with France, often advanced for the proposition that
Congress is empowered to regulate military operations that do not amount to war, should
be read as strict interpretations of Congress’s power to make rules for captures).

any military operations.20 Congress generally provided the requested support and
granted the authority to raise the necessary troops to defend the frontiers from
deprivations by hostile Indians21 and to build a navy to protect U.S. commerce at
sea.22 Congress, in exercising its authority to raise the army and navy, sometimes
raised forces for specific purposes, which may be viewed as both an implicit
authorization to use the forces for such purposes and as an implicit limitation on their
use.23 On the other hand, Congress often delegated broad discretion to the President
within those limits, and appears to have acquiesced to military actions that were not
explicitly authorized.24
In several early instances, Congress authorized the President to use military
forces for operations that did not amount to a full war. Rather than declaring a
formal war with France, Congress authorized the employment of the naval forces for
limited hostilities. The Third Congress authorized the President to lay and enforce
embargoes of U.S. ports, but only while Congress was not in session (and embargo
orders were to expire 15 days after the commencement of the next session of
Congress).25 The Fifth Congress authorized the President to issue instructions to the

(1976) (describing President Washington’s efforts to obtain support for military efforts,
including a build-up of military strength to preserve peace and maintain U.S. stature among
21 See, e.g., Act of March 3d, 1791, for raising and adding another Regiment to the Military
Establishment of the United States, and for making further provision for the protection of
the frontier, 1 Stat. 222; Act of March 5, 1792, 1 Stat. 241 (adding three regiments for three
years or until peace with Indian tribes was established); Act of July 16, 1798, 1 Stat. 604
(authorizing the President to raise twelve additional regiments of infantry and six troops of
light dragoons during the continuance of differences with the French Republic).
22 See, e.g., Act of March 27, 1794, To provide a naval armament, 1 Stat. 351 (“Whereas the
depredations committed by Algerine corsairs render it necessary...” authorizing the building
and manning of six ships of specific types, until the establishment of peace with the
Regency of Algiers)(amended in 1796 to remove restrictions so that vessels could be used
for other purposes, 1 Stat. 453); Act of April 27, 1798, To provide an additional Armament
for the protection of the Trade of the United States..., 1 Stat. 552; Act of June 22, 1798, 1
Stat. 569 (authorizing the President “to increase the strength of any revenue cutter, for the
purposes of defence, against hostilities near the sea coast” by manning the vessels with up
to 70 seamen and marines).
23 Some proposals explicitly to limit how the vessels could be employed were stricken prior
to enactment, but the congressional debates left unclear whether the majority of members
thought the restrictions unconstitutional or merely unwise, or whether the absence of
specific authority was meant to be a limitation. See SOFAER, supra note 20, at 147-54. The
John Adams Administration interpreted the legislation restrictively, and instructed naval
commanders accordingly that their authority was to be “partial and limited.” See id. at 156.
24 See id. at 129 (noting that offensive actions against Wabash Indians and against a British
fort may have exceeded express statutory authorization but were authorized by implication
through appropriations).
25 Act of June 4, 1794, 1 Stat. 372. See also Act of June 5, 1794 §§ 7- 8, 1 Stat. 381, 384
(authorizing the President to use armed forces to detain violators and compel foreign ships

commanders of public armed ships to capture certain French armed vessels and to
recapture ships from them,26 and to retaliate against captured French citizens who had
seized U.S. citizens and subjected them to mistreatment.27 Congress also authorized
U.S. merchant vessels to defend themselves against French vessels.28 The Supreme
Court treated these statutes as authorizing a state of “partial war” between the United
States and France.29 Such an undeclared war was described as an “imperfect” war,
as distinguished from a “Solemn” or “perfect” war, declared as such, in that, in the
first case, all members of one nation are at war with all members of the other nation;
in the second case, those who are authorized to commit hostilities act “under special
authority.”30 This suggests an early understanding that Congress’s war powers
extend to establishing the scope of hostilities to be carried out by the armed forces.
In the majority of cases, however, it appears that Congress has given broad
deference to the President to decide how much of the armed forces to employ in a
given situation. After Tripoli declared war against the United States in 1801 and
U.S. vessels were already engaged in defensive actions against them, Congress did
not enact a full declaration of war. Rather, it issued a sweeping authorization for the
commissioning of privateers, captures, and other actions to “equip, officer, man, and
employ such of the armed vessels of the United States as may be judged requisite by
the President of the United States, for protecting effectually the commerce and
seamen thereof on the Atlantic ocean, the Mediterranean and adjoining seas,” as well
as to “cause to be done all such other acts of precaution or hostility as the state of
war will justify, and may, in his opinion, require.”31 In declaring war against Great
Britain in 1812, Congress authorized the President to “use the whole land and naval
force of the United States to carry the same into effect, and to issue to private armed
vessels of the United States commissions or letters of marque and general reprisal,
in such form as he shall think proper....”32
That Congress has traditionally left it up to the President to decide how much
of the armed forces to employ in a given conflict need not imply that such deference
is constitutionally mandated. The fact that Congress has seen fit to include such

25 (...continued)
to depart).
26 Act of May 28, 1798, 1 Stat. 561. See also Act of July 9, 1798, 1 Stat. 578.
27 Act of March 3, 1799, 1 Stat. 743 (empowering and requiring the President to “cause the
most rigorous retaliation to be executed on [French suspects who] have been or hereafter
may be captured in pursuance of any of the laws of the United States”).
28 1 Stat. 572.
29 Bas v. Tingy, 4 U.S.(Dall.) 37 (1800).
30 Id. at 40. See also Talbot v. Seeman, 5 U.S.(Cranch) 1, 28 (1801)(“Congress may
authorize general hostilities ... or partial hostilities’”).
31 Act of February 6, 1802, 2 Stat.129 (emphasis added). For more examples of
authorizations to use force and declarations of war, see CRS Report RL31133, Declarations
of War and Authorizations for the Use of Military Force: Historical Background and Legal
Implications, by Richard F. Grimmett and Jennifer K. Elsea.
32 Act of June 18, 1812, ch. 102, 2 Stat 755.

language may just as easily be read as an indication that Congress believes that the
decision is its to delegate. Under this view, even in the case of a declaration of war,
Congress retains the power to authorize the President to use only a portion of the
armed forces to engage in a particular conflict. On the other hand, some have argued
that the President is authorized to deploy all of the armed forces as he sees fit, with
or without an express authorization to use force or a declaration of war.33 According
to this theory, in essence, Congress can stop the deployment of military forces only
by cutting appropriations and discharging the troops.
Congress has also used its authority to provide for the organization and
regulation of the armed forces to regulate how military personnel are to be organized
and employed. The earliest statutes prescribed in fairly precise terms how military
units were to be formed and commanded. For example, the 1798 act establishing the
Marine Corps mandated the raising of a corps to consist of “one major, four captains,
sixteen first lieutenants, twelve second lieutenants, forty-eight sergeants, forty-eight
corporals, thirty-two drums and fifes, and seven hundred and twenty privates....”34
Congress authorized the President to appoint certain other officers as necessary if he
were to assign the Marine Corps or any part of it to shore duty, and to assign the
detachment to duty in “forts and garrisons of the United States, on the sea-coast, or
any other duty on shore.” Officers of the Marine Corps could be detached to serve
on board frigates and other armed vessels. The Marine Corps was increased in size
and reorganized in 1834 to be commanded by a colonel, with the proviso that no
Marine Corps officer could be placed in command of a navy yard or vessel of the
United States.35
It appears to have been understood that personnel and units authorized to
perform certain duties could not be assigned to perform other duties without
authorization from Congress. In 1808, when Congress authorized eight new
regiments of specific types and composition, it felt compelled to include language
making members of the light dragoon regiment liable to “serve on foot as light
infantry” until sufficient horses and other accouterments could be provided.36 The
Supreme Court later interpreted an 1802 statute providing for the establishment of
the Corps of Engineers, although broadly worded to permit the President to direct
that its members serve such duty in such places as he saw fit, to authorize only
engineering duties:

33 See, e.g., Bradley Larschan, The War Powers Resolution: Conflicting Constitutional
Powers, The War Powers, and U.S. Foreign Policy, 16 DENVER J. INTL L. & POLY 33, 45
(1987) (arguing that once Congress has raised an army and appropriated funds for it, “it falls
to the President to use the armed forces in his capacity to conduct foreign policy in
situations short of war”). The author states that it is “clear that the Congress may prohibit
the use of U.S. forces in certain areas by statute,” but that “it is the President who orders
deployment of the troops.” Id. at 49.
34 1 Stat. 594, 595 (1798).
35 4 Stat. 712, 713 (1834).
36 2 Stat. 481, 483 (1808).

But, however broad this enactment is in its language, it never has been supposed
to authorize the President to employ the corps of engineers upon any other duty,37
except such as belongs either to military engineering, or to civil engineering.
The Commander-in-Chief Clause
Early in the nation’s history, the Commander-in-Chief power was understood
to connote “nothing more than the supreme command and direction of the military
and naval forces, as first general and admiral of the confederacy.”38 Concurring in
that view in 1850, Chief Justice Taney stated:
[The President’s] duty and his power are purely military. As Commander-in-
Chief, he is authorized to direct the movements of the naval and military forces
placed by law at his command, and to employ them in the manner he may deem39
most effectual to harass and conquer and subdue the enemy.
This formula, taken alone, provides only an approximate demarcation of the line
separating Congress’s role from the President’s. Advocates of a strong role for
Congress might characterize a legislative effort to limit the number of troops
available in Iraq as placing troops “by law” under the President’s command, while
proponents of a strong executive would likely view it as a limitation on the
President’s ability to “employ them in the manner” he sees fit. With respect to the
latter argument, however, it should be noted that the particular question before the
Fleming Court did not call into question the extent to which Congress could restrict
the manner of employing troops once placed at the command of the President.
Other early cases demonstrate Congress’s authority to restrict the President’s
options for the conduct of war. In Little v. Barreme,40 Chief Justice Marshall had
occasion to recognize congressional war power and to deny the exclusivity of
presidential power. There, after Congress had authorized limited hostilities with
France, a U.S. vessel under orders from the President had seized what its commander
believed was a U.S. merchant ship bound from a French port, allegedly carrying
contraband material. Congress had, however, provided by statute only for seizure of
such vessels bound to French ports.41 Upholding an award of damages to the ship’s
owners for wrongful seizure, the Chief Justice said:
It is by no means clear that the president of the United States whose high duty it
is to ‘take care that the laws be faithfully executed,’ and who is commander in
chief of the armies and navies of the United States, might not, without any
special authority for that purpose in the then existing state of things, have
empowered the officers commanding the armed vessels of the United States, to
seize and send into port for adjudication, American vessels which were forfeited

37 Gratiot v. United States, 40 U.S. (15 Pet.) 336, 371 (1841)(finding that the President could
contract for other services but must pay an additional stipend for them from other funds)
38 The Federalist, No. 69 (Alexander Hamilton).
39 Fleming v. Page, 50 U.S. (9 How.) 603, 615 (1850).
40 6 U.S. (2 Cr.) 170 (1804).
41 1 Stat. 613 (1799).

by being engaged in this illicit commerce. But when it is observed that [an act of
Congress] gives a special authority to seize on the high seas, and limits that
authority to the seizure of vessels bound or sailing to a French port, the
legislature seems to have prescribed that the manner in which this law shall be
carried into execution, was to exclude a seizure of any vessel not bound to a42
French port.
Accordingly, the Court held, the President’s instructions exceeded the authority
granted by Congress and were not to be given force of law, even in the context of the
President’s military powers and even though the instructions might have been valid
in the absence of contradictory legislation.
In Bas v. Tingy,43 the Court looked to congressional enactments rather than
plenary presidential power to uphold military conduct related to the limited war with
France. The following year, in Talbot v. Seeman,44 the Court upheld as authorized by
Congress a U.S. commander’s capture of a neutral ship, saying that “[t]he whole
powers of war being, by the constitution of the United States, vested in congress, the
acts of that body can alone be resorted to as our guides in this inquiry.” During the
War of 1812, the Court recognized in Brown v. United States,45 that Congress was
empowered to authorize the confiscation of enemy property during wartime, but that
absent such authorization, a seizure authorized by the President was void.
The onset of the Civil War provided some grist for later assertions of unimpeded46
presidential prerogative in matters of war. In the Prize Cases, the Supreme Court
sustained the blockade of Southern ports instituted by President Lincoln in April,
1861, at a time when Congress was not in session. Congress had at the first
opportunity ratified the President’s actions,47 so that it was not necessary for the
Court to consider the constitutional basis of the President’s action in the absence of
congressional authorization or in the face of any prohibition. Nevertheless, the Court
approved the blockade five-to-four as an exercise of presidential power alone, on the
basis that a state of war was a fact and that, the nation being under attack, the48
President was bound to take action without waiting for Congress. The case has
frequently been cited to support claims of greater presidential autonomy by reason
of his role as Commander in Chief.

42 6 U.S. (2 Cr.) at 177-178.
43 4 U.S. (4 Dall. ) 37 (1800).
44 5 U.S. (1 Cr.) 1, 28 (1801).
45 12 U.S. (8 Cr.) 110 (1814).
46 67 U.S. (2 Bl. ) 635 (1863).
47 12 Stat. 326 (1861)(ratifying all “acts, proclamations, and orders” done by the President
“respecting the army and navy ... and calling out or relating to the militia”).
48 67 U.S. (2 Bl. ) at 668 (“[The President] does not initiate war, but is bound to accept the
challenge without waiting for any special legislative authority.”). The minority argued that
only congressional authorization could stamp an insurrection with the character of war.
Later, a unanimous Court adopted the majority view. The Protector, 79 U.S. (12 Wall.) 700

However, it should be recalled that where Lincoln’s suspension of the Writ of
Habeas Corpus varied from legislation enacted later to ratify it, the Court looked to
the statute49 rather than to the executive proclamation50 to determine the breadth of
its application.51 The Chief Justice described the allocation of war powers as follows:
The power to make the necessary laws is in Congress; the power to execute in the
President. Both powers imply many subordinate and auxiliary powers. Each
includes all authorities essential to its due exercise. But neither can the President,
in war more than in peace, intrude upon the proper authority of Congress, nor52
Congress upon the proper authority of the President....
The Chief Justice described the Commander-in-Chief power as entailing “the
command of the forces and the conduct of campaigns,”53 but nevertheless agreed that
military trials of civilians accused of violating the law of war in Union states were
invalid without congressional approval, despite the government’s assertion that the
“[Commander in Chief’s] power to make an effectual use of his forces [must include
the] power to arrest and punish one who arms men to join the enemy in the field
against him.”54
On the other hand, the Supreme Court has also suggested that the President has
some independent authority to employ the armed forces, at least in the absence of
contrary congressional action. In the 1890 case of In re Neagle, the Supreme Court
suggested, in dictum, that the President has the power to deploy the military abroad
to protect or rescue persons with significant ties to the United States. Discussing
examples of the executive lawfully acting in the absence of express statutory
authority, Justice Miller approvingly described the Martin Koszta affair, in which an
American naval ship intervened to prevent a lawful immigrant from being captured
by an Austrian vessel, despite the absence of clear statutory authorization.55 Only one

49 Act of March 3d, 1863, 12 Stat. 755 (authorizing the suspension of habeas corpus, but
with limitations in Union states to those held as prisoners of war; all others were to be
indicted or freed.)
50 Proclamation of September 15, 1863, 13 Stat. 734 (suspending habeas corpus with respect
to those in federal custody as military offenders or “as prisoners of war, spies, or aiders and
abettors of the enemy”).
51 Ex parte Milligan, 71 U.S. (4 Wall.) 2 (1866).
52 Id. at 139 (Chase, C.J., concurring).
53 Id. at 139 (“Congress cannot direct the conduct of campaigns, nor can the President, or
any commander under him, without the sanction of Congress, institute tribunals for the trial
and punishment of offences, either of soldiers or civilians, unless in cases of a controlling
54 Id. at 17 (government argument).
55 In re Neagle, 135 U.S. 1, 64 (1890) (describing the incident and rhetorically asking,
“Upon what act of congress then existing can any one lay his finger in support of the action
of our government in this matter?”). For further discussion, see LOUIS HENKIN, FOREIGNnd
note 13, at 154 (stating that the U.S. captain had acted against the President’s orders, but

federal court, in an 1860 opinion, has clearly held that in the absence of congressional
authorization, the President has authority to deploy military forces abroad to protect
U.S. persons (and property).56 Nevertheless, there historically appears to be some
support for this view by both the executive and legislative branches.57 However, the

55 (...continued)
that President Pierce justified the action to Congress, which later awarded the captain a
medal). In an earlier opinion, the Court had also stated in dictum that one of the privileges
of a U.S. citizen is “to demand the care and protection of the Federal government over his
life, liberty, and property when on the high seas or within the jurisdiction of a foreign
government.” Slaughter-House Cases, 83 U.S. 36, 79 (1872). It should be noted that Koszta
was not a U.S. citizen, but a legal immigrant who had declared an intention to apply for
citizenship. Accordingly, an 1868 statute authorizing the use of any means “not amounting
to acts of war” to obtain the release of U.S. citizens was likely inapplicable. Expatriation Act
of July 27, 1868, 15 Stat. 223.
56 Durand v. Hollins, 8 Fed. Cas. 111 (C.C.S.D.N.Y. 1860) (Nelson, Circuit Justice) (holding
that a Navy commander was not civilly liable for damages caused by his forces during an
1854 action to protect U.S. citizens and property in Greytown, Nicaragua). In an opinion
by Circuit Justice Nelson, the Court held that the Commander was not liable because the
military action was pursuant to a valid exercise of federal authority to be exercised by the
President: it respects the interposition of the executive abroad, for the protection of the
lives or property of the citizen, the duty must, of necessity, rest in the discretion
of the president. Acts of lawless violence, or of threatened violence to the citizen
or his property, cannot be anticipated and provided for; and the protection, to be
effectual or of any avail, may, not unfrequently, require the most prompt and
decided action. Under our system of government, the citizen abroad is as much
entitled to protection as the citizen at home. Id. at 112.
57 See GAO, Office of Compt. Gen., President - Authority - Protection of American Lives
and Property Abroad, 55 Comp. Gen. 1081 (1975) (describing historical practice and the
weight of scholarly authority as supporting the power of the President to order military
rescue operations in the absence of congressional authorization); Dept. of Justice, Office of
Legal Counsel, 4A U.S. OP. OFF. LEGAL COUNSEL 185, Presidential Power to Use the
Armed Forces Abroad Without Statutory Authorization (1980) (alleging presidential
authority to deploy forces to protect, and retaliate for injuries suffered by, U.S. persons and
property). For discussion of the deployment of military forces to protect U.S. persons or
property, see FISHER, supra note 11, at 57-58 (describing historical practice, and noting mid-

20th century study listing 148 examples of this occurrence); ARTHUR M. SCHLESINGER, JR.,

THE IMPERIAL PRESIDENCY 54-57 (rev. ed. 2004)(discussing mid-nineteenth century
instances where presidents unilaterally committed forces to protect U.S. persons or
property). The number and degree to which these actions occurred without congressional
authorization is the subject to some debate. See WORMUTH & FIRMAGE, supra note 13, at
135-51(discussing and disputing validity of various lists of military actions compiled to
demonstrate historical prevalence of presidential war-making). For example, some argue
that President Jefferson’s ordering of the Navy to protect American shipping from Barbary
pirates was done without congressional approval, while others view these orders as having
been issued pursuant to legislation providing for a “naval peace establishment.” Compare
Dept. of Justice, Off. of Legal Counsel, supra, at 187 (describing Jefferson’s use of the
Navy as a “famous early example” of President’s acting without congressional authorization
to protect U.S. interests) with FISHER, supra note 11, at 35-36 (characterizing the orders as

scope of any such authority remains unclear, as does the degree to which it may be
limited by an act of Congress.
The expansion of presidential power related to war, asserted as a combination
of Commander-in-Chief authority and the President’s inherent authority over the
nation’s foreign affairs, began in earnest in the twentieth century. In United States
v. Curtiss-Wright Export Corp,58 the Supreme Court confirmed that the President
enjoys greater discretion when acting with respect to matters of foreign affairs than
may be the case when only domestic issues are involved. In that case, Congress,
concerned with the outside arming of the belligerents in the war between Paraguay
and Bolivia, had authorized the President to proclaim an arms embargo if he found
that such action might contribute to a peaceful resolution of the dispute. President
Franklin Roosevelt issued the requisite finding and proclamation, and Curtiss-Wright
and associate companies were indicted for violating the embargo. They challenged
the statute, arguing that Congress had failed adequately to elaborate standards to
guide the President’s exercise of the power thus delegated.59 Justice Sutherland
concluded that the limitations on delegation in the domestic field were irrelevant
where foreign affairs are involved, a result he based on the premise that foreign
relations is exclusively an executive function combined with his constitutional model
positing that internationally, the power of the federal government is not one of
enumerated but of inherent powers, emanating from concepts of sovereignty rather
than the Constitution. The Court affirmed the convictions, stating that:
It is important to bear in mind that we are here dealing not alone with an
authority vested in the President by an exertion of legislative power, but with
such an authority plus the very delicate, plenary and exclusive power of the
President as the sole organ of the federal government in the field of international
relations — a power which does not require as a basis for its exercise an act of
Congress, but which, of course, like every other governmental power, must be
exercised in subordination to the applicable provisions of the Constitution. It is
quite apparent that if, in the maintenance of our international relations,
embarrassment — perhaps serious embarrassment — is to be avoided and
success for our aims achieved, congressional legislation which is to be made
effective through negotiation and inquiry within the international field must often
accord to the President a degree of discretion and freedom from statutory
restriction which would not be admissible were domestic affairs alone involved.
Moreover, he, not Congress, has the better opportunity of knowing the conditions60

which prevail in foreign countries, and especially is this true in time of war.
57 (...continued)
being issued pursuant to congressional authorization, and noting that Jefferson denied
having inherent authority to commit such acts). Whether such usage would legitimate the
authority is also subject to debate. See WORMUTH & FIRMAGE, supra note 13, at 135.
58 299 U.S. 304 (1936).
59 The Supreme Court had recently held that the Constitution required Congress to elaborate
standards when delegating authority to the President. Schechter Poultry Corp. v. United
States, 295 U.S. 495 (1935).
60 299 U.S. at 319-20.

The case is cited frequently to support a theory of presidential power not subject
to restriction by Congress, although the case in fact involved an exercise of authority
delegated by Congress. Curtiss-Wright remains precedent admonishing courts to
show deference to the President in matters involving international affairs, including
by interpreting ambiguous statutes in such a manner as to increase the President’s
discretion.61 The case has also been cited in favor of broad presidential discretion to
implement statutes related to military affairs.62 To the extent, however, that Justice
Sutherland interpreted presidential power as being virtually plenary in the realms of
foreign affairs and national defense, the case has not been followed to establish that
Congress lacks authority in these areas.
The constitutional allocation of war powers between the President and
Congress, where Congress had not delegated the powers exercised by the President,
was described by Justice Jackson, concurring in the Steel Seizure Case63:
The Constitution expressly places in Congress power “to raise and support
Armies” and “to provide and maintain a Navy.” This certainly lays upon
Congress primary responsibility for supplying the armed forces. Congress alone
controls the raising of revenues and their appropriation and may determine in
what manner and by what means they shall be spent for military and naval
There are indications that the Constitution did not contemplate that the title
Commander in Chief of the Army and Navy will constitute him also Commander
in Chief of the country, its industries and its inhabitants. He has no monopoly
of “war powers,” whatever they are. While Congress cannot deprive the
President of the command of the army and navy, only Congress can provide him
any army or navy to command.
The Jackson opinion is commonly understood to establish that whatever powers the
President may exercise in the absence of congressional authorization, the President
may act contrary to an act of Congress only in matters involving exclusive
presidential prerogatives.64

61 See Haig v. Agee, 453 U.S. 280, 291, 293-294 & n. 24, 307-308 (1981); Sale v. Haitian
Centers Council, Inc., 509 U.S. 155 (1993)(construing treaty and statutory provisions as not
limiting presidential discretion in interdicting refugees on high seas in the light of the
President’s “unique responsibility” in foreign and military affairs, citing Curtiss-Wright).
62 See Loving v. United States, 517 U.S. 748 (1996).
63 Youngstown Sheet and Tube Co. v. Sawyer, 343 U.S. 579, 641 (1952).
64 Justice Jackson’s concurrence took note of the fact that Curtiss-Wright did not involve a
case in which the President took action contrary to an act of Congress. Id. at 635-36 &n.2.
Curtiss-Wright, he said
involved, not the question of the President’s power to act without congressional
authority, but the question of his right to act under and in accord with an Act of
Congress. The constitutionality of the Act under which the President had
proceeded was assailed on the ground that it delegated legislative powers to the
President. Much of the Court’s opinion is dictum, but the ratio decidendi is

Presidents from Truman to George W. Bush have claimed independent
authority to commit U.S. armed forces to involvements abroad absent any
Congressional participation other than consultation and after-the-fact financing. In
1994, for example, President Clinton based his authority to order the participation of
U.S. forces in NATO actions in Bosnia-Herzegovina on his “constitutional authority
to conduct U.S. foreign relations” and as his role as Commander in Chief,65 and
protested efforts to restrict the use of military forces there and elsewhere as an
improper and possibly unconstitutional limitation on his “command and control” of
U.S. forces.66 Ever since Congress passed the War Powers Resolution over President
Nixon’s veto, all Presidents have regarded it as an unconstitutional infringement on
presidential powers.67
In the context of what it terms the “Global War on Terror,” the Bush
Administration has claimed that the President’s commander-in-chief authority entails
inherent authority with respect to the capture and detention of suspected terrorists,

64 (...continued)
contained in the following language:
When the President is to be authorized by legislation to act in respect
of a matter intended to affect a situation in foreign territory, the
legislator properly bears in mind the important consideration that the
form of the President’s action - or, indeed, whether he shall act at all
- may well depend, among other things, upon the nature of the
confidential information which he has or may thereafter receive, or
upon the effect which his action may have upon our foreign relations.
This consideration, in connection with what we have already said on
the subject, discloses the unwisdom of requiring Congress in this field
of governmental power to lay down narrowly definite standards by
which the President is to be governed. As this court said in Mackenzie
v. Hare, 239 U.S. 299, 311 , ‘As a government, the United States is
invested with all the attributes of sovereignty. As it has the character
of nationality it has the powers of nationality, especially those which
concern its relations and intercourse with other countries. We should
hesitate long before limiting or embarrassing such powers.’ (Italics
supplied [by Justice Jackson]) Id., at 321-322.
That case does not solve the present controversy. It recognized internal and
external affairs as being in separate categories, and held that the strict limitation
upon congressional delegations of power to the President over internal affairs
does not apply with respect to delegations of power in external affairs. It was
intimated that the President might act in external affairs without congressional
authority, but not that he might act contrary to an Act of Congress.
65 30 WEEKLY COMP. PRES. DOC. 406 (March 2, 1994).
66 See Interview with Radio Reporters, 1993 PUB. PAPERS 1763-64; see also FISHER, supra
note 11, at 184.
67 P.L. 93-148, 87 Stat. 555, codified at 50 U.S.C. § 1541 et seq. See CRS Report RL33532,
The War Powers Resolution: Presidential Compliance, by Richard F. Grimmett.

authority he has claimed cannot be infringed by legislation.68 In 2004, the Supreme
Court avoided deciding whether Congress could pass a statute to prohibit or regulate
the detention and interrogation of captured suspects, which the Administration had
asserted would unconstitutionally interfere with core commander-in-chief powers,
by finding that Congress had implicitly authorized the detention of enemy
combatants when it authorized the use of force in the aftermath of the September 11,
2001, terrorist attacks.69 However, the Supreme Court in 2006 invalidated President
Bush’s military order authorizing trials of aliens accused of terrorist offenses by
military commission, finding that the regulations promulgated to implement the order
did not comply with relevant statutes.70 The Court did not expressly pass on the
constitutionality of any statute or discuss possible congressional incursion into areas
of exclusive presidential authority, which was seen by many as implicitly confirming
Congress’s authority to legislate in such a way as to limit the power of the
Commander in Chief.71
II. Repeal of Prior Authorization to Use
Military Force
While it is well-established that Congress and the President each possess
authority on ending a military conflict, issues may arise if the political branches are
in disagreement as to whether or how to end a military conflict. Inter-branch
disagreement regarding the cessation of hostilities has been a rare occurrence, but it
is not unprecedented. In the 110th Congress, a number of proposals have been
introduced that would repeal or establish an expiration date for the Authorization for
Use of Military Force against Iraq Resolution of 2002.72 The following sections

68 See, e.g. Oversight of the Department of Justice: Hearing Before the Senate Judiciary
Committee, 107th Cong. (2002) (testimony of Attorney General John Ashcroft)(arguing that
Congress has no constitutional authority to interfere with the President’s decision to detain
enemy combatants); see also Reid Skibell, Separation-of-Powers and the Commander in
Chief — Congress’s Authority to Override Presidential Decisions in Crisis Situations, 13
GEO. MASON L. REV. 183 (2004)(documenting Bush Administration claims with respect to
Congress’s lack of power to legislate in matters related to the conduct of the war and
arguing that these represent an expansion over prior administrations’ claims).
69 See Hamdi v. Rumsfeld, 542 U.S. 507, 517 (2004).
70 Hamdan v. Rumsfeld, 126 S.Ct. 2749 (2006).
71 The Court adopted Chief Justice Chase’s formulation for allocating war powers, see id.
at 2773, and Justice Jackson’s framework for determining separation-of-powers disputes
between the President and Congress, see id. at 2774 n.24 (“Whether or not the President has
independent power, absent congressional authorization, to convene military commissions,
he may not disregard limitations that Congress has, in proper exercise of its own war
powers, placed on his powers. The Government does not argue otherwise.”)(citation
72 See H.R. 1460 (repealing 2002 resolution); H.R. 1262 (same); S. 679 (declaring that
objectives of 2002 resolution have been achieved, and requiring redeployment of forces
from Iraq); S.J.Res. 3 (establishing expiration date for 2002 resolution); S. 670 (requiring

discuss the constitutional authority implicated by a repeal of military authorization,
procedural, and other considerations involved in rescinding prior military
authorization as compared to limiting appropriations, and the legal effect that a repeal
would have on continuing hostilities.
Historical Practice
Although the U.S. Constitution expressly empowers Congress to declare war,
it is notably silent regarding which political body is responsible for returning the
United States to a state of peace. Some evidence suggests that this omission was not
accidental.73 During the Constitutional Convention, a motion was made by one of
the delegates to modify the draft document by adding the words “and peace” after the
words “to declare war.”74 This motion, however, was unanimously rejected.
Convention records do not clearly evidence the framers’ intent in rejecting the
Some early constitutional commentators suggested that the motion failed
because the framers believed that the power to make peace more naturally belonged
to the treaty-making body, as conflicts between nations were typically resolved
through treaties of peace.75 Although the framers did not specifically empower
Congress to make peace, they also did not expressly locate the power with the treaty-
making body, perhaps because of a recognition that peace might sometimes be more
easily achieved through means other than treaty.76

72 (...continued)
new military authorization unless certain objectives are met); H.R. 930 (repealing 2002
resolution); H.R. 508 (same); H.R. 413 (same).
73 Up to that point, the shared American and English tradition suggested that the institution
with the power to instigate war was also the body with the power to end it. Blackstone
believed that under the English system, “wherever the right resides of beginning a national
war, there also must reside the right of ending it, or the power of making peace.” 1 WILLIAM
declared its independence, it also rejected the monarchial form of government.
Nevertheless, the legal document that the Constitution was intended to replace, the Articles
of Confederation, expressly accorded the national legislative body with “the sole and
exclusive right and power of determining on peace and war.” ARTICLES OF CONFEDERATION,
art. IX, § 1. Under the Articles, there was neither a national executive nor judicial body.
74 FARRAND, supra note 17, at 319; see also 3 JAMES MADISON, THE PAPERS OF JAMES
MADISON 1352 (Henry Gilpin, ed. 1840).
should be noted that at the time the proposal was rejected, the framers had designated the
Senate as the treaty-making body. The President was made part of the treaty-making body
several weeks later. FARRAND, supra note 17, at 538.
76 As a practical matter, a requirement that peace be achieved through a treaty between the
warring parties would, in certain circumstances, lead to odd results:
The President, who is the Commander-in-Chief...and a majority of both branches
of Congress, which declares war and maintains the forces necessary for its

It has been suggested that the framers did not allocate an exclusive body with
peace-making authority because they believed “it should be more easy to get out of
a war than into it.”77 Given the framers’ failure to designate a single political branch
responsible for returning the country from a state of war to a state of peace, the power
to make peace was likely understood to be a shared power, with each branch having
the authority on terminating a military conflict.78 The executive could return the
country to a state of peace through a treaty with the warring party, subject to the
Senate’s advice and consent. Congress could declare peace or rescind a previous
authorization to use military force pursuant to its plenary authority to repeal prior
enactments, its power to regulate commerce with foreign nations, or its power to
make laws “necessary and proper” to effectuate its constitutional powers.79
Regardless of the framers’ intent, the legislative and executive branches have
historically treated peace-making as a shared power. Peace has been declared in one
of three ways: (1) via legislation terminating a conflict, (2) pursuant to a treaty
negotiated and signed by the executive and ratified following the advice and consent
of the Senate, and (3) through a presidential proclamation.80 All three methods have
been recognized as constitutionally legitimate by the Supreme Court,81 including
most clearly in the 1948 case of Ludecke v. Watkins, where the Court plainly stated,
“The state of war may be terminated by treaty or legislation or Presidential

76 (...continued)
prosecution, might desire peace yet be unable to obtain it because a third of the
Senate plus one Senator were contrary minded. Or our erstwhile antagonist
might be the contrary minded one. Or the war might have resulted in the
extinction of said antagonist. Such, in fact, was the situation at the close of the
Civil War, which accordingly could not be brought to an end in the legal sense
by a treaty of peace....
Edward S. Corwin, Power of Congress to Declare Peace, 18 MICH. L. REV. 669, 672-673
77 Id. at 669. See also MADISON, supra note 74, at 1352 (quoting delegate Oliver Ellsworth
in debate to give Congress the power to “make war”).
78 See Corwin, supra note 76, at 673.
79 Id. at 674.
80 A listing of all instances where the U.S. has formally declared war or authorized the use
of military force, along with the date and means by which peace was declared or military
authorization was terminated, can be found in CRS Report RL31133, Declarations of War
and Authorizations for the Use of Military Force: Historical Background and Legal
Implications, by Richard F. Grimmett and Jennifer K. Elsea.
81 E.g., Hijo v. United States, 194 U.S. 315 (1904) (recognizing state of war with Spain as
ending with ratification of peace treaty); The Protector, 79 U.S. 700 (1871) (relying on
presidential proclamations to determine the beginning and ending date of the Civil War);
Commercial Trust v. Miller, 262 U.S. 51, 57 (1923) (recognizing congressional act as
ending war with Germany). It should be noted that the Civil War is the only “war” which
was ended by presidential proclamation. It could be argued that the methods by which the
political branches may signal the termination of a domestic insurrection are different than
those by which they may end a conflict with a foreign nation.

proclamation.”82 Notably, the Court has recognized that the termination of a military
conflict is a “political act,”83 and it has historically refused to review the political
branches’ determinations of when a conflict has officially ended.84
Rescinding Military Authorization Versus Cutting
Appropriations: Procedural and Other Considerations
As a procedural matter, it is more difficult for Congress to terminate
authorization for a military conflict than to limit appropriations necessary for the
continuation of hostilities. As in the case of ordinary legislation, congressional
declarations of peace and rescissions of military authorization have historically taken
the form of a bill or joint resolution passed by both Houses and presented to the
President for signature.85 Like other legislation, such measures are subject to
presidential veto, which Congress may override only with a two-thirds majority of
each House.86
In contrast, Congress’s ability to deny funds for the continuation of military
hostilities is not contingent upon the enactment of a positive law, though such a
denial may take the form of a positive enactment.87 Although the President has the
power to veto legislative proposals, he cannot compel Congress to pass legislation,
including bills to appropriate funds necessary for the continuation of a military

82 335 U.S. 160, 168 (1948) (internal quotations omitted). There are potentially other ways
in which peace could be made that were not contemplated by the Ludecke Court. See
(suggesting that a war could also be ended by, among other things, an executive agreement
with or without specific congressional authorization).
83 Ludecke, 335 U.S. at 168-169.
84 Baker v. Carr, 369 U.S 186, 213-214 (1962) (describing the Court’s refusal to review the
political branches’ determination of when or whether a war has ended). See generally
ROSSITER, supra note 82, at 83-89 (discussing Supreme Court jurisprudence upholding
political branches’ determinations as to the official end of a war, including in cases where
actual hostilities ceased several years beforehand).
85 See CRS Report RL31133, Declarations of War and Authorizations for the Use of
Military Force: Historical Background and Legal Implications, by Richard F. Grimmett and
Jennifer K. Elsea; see also J. Gregory Sidak, To Declare War, 41 DUKE L.J. 27, 81-86
(discussing historical operation of bicameralism and presentment in the war-making context,
along with scholarly views concerning whether presentment is necessary).
86 U.S. CONST., art. I, § 7, cl. (2)-(3).
87 See, e.g., P.L. 91-652, § 7(a) (1971) (prohibiting funds appropriated from being used to
introduce U.S. ground troops into Cambodia); P.L. 93-50, § 307 (1973) (prohibiting
appropriated funds from being used in U.S. combat activities in Indochina after August 15,
1973); P.L. 103-139, § 8135 (1993) (barring appropriations from being used for combat
forces in Somalia after March 31, 1994). For additional examples, see CRS Report
RS20775, Congressional Use of Funding Cutoffs Since 1970 Involving U.S. Military Forces
and Overseas Deployments, by Richard F. Grimmett, and CRS Report RL33803,
Congressional Restrictions on U.S. Military Operations in Vietnam, Cambodia, Laos,
Somalia, and Kosovo: Funding and Non-Funding Approaches, by Amy Belasco, Lynn J.
Cunningham, Hannah Fischer, and Larry A. Niksch.

conflict. Thus, while a majority of both Houses would be necessary to terminate
military authorization, and a super-majority of both Houses would be required to
override a presidential veto, a simple majority of a single House could prevent the
appropriation of funds necessary for the continuation of a military conflict. 88 It
should be noted, however, that legislation probably would be required to prevent the
President from exercising statutory authority to transfer certain funds appropriated
to other operations for use in support of the military conflict that Congress was
attempting to limit. Like other positive legislation, such a measure would be subject
to presidential veto.
While it may be procedurally easier for Congress to refuse appropriations for a
military conflict than to rescind military authorization, policy considerations may
sometimes make the latter option more appealing. For example, some Members of
Congress who support the winding down of a military operation might nevertheless
be reluctant to reduce the funds for troops on the battlefield. There might also be
concerns over potential effects that a denial of appropriations might have on
unrelated military operations. Although appropriations legislation can be crafted to
effectively terminate hostilities while permitting funding of force protection measures
during the orderly redeployment of troops from the battlefield, such legislation, like
other positive enactments, would be subject to presidential veto.
In certain circumstances, a President may be more willing to agree to a
rescission of military authorization than to an appropriations bill that limits the
funding of military operations, particularly if the rescission does not include a
deadline for troop withdrawal. Indeed, during the Vietnam War, Congress was able
to rescind military authorization at an earlier date than it was able to cut off
appropriations. In 1971, Congress passed and President Nixon signed a measure
rescinding the 1964 Gulf of Tonkin resolution, which had provided congressional
authorization for U.S. military operations against North Vietnam.89 The Mansfield
Amendment, enacted later that year, called for the “prompt and orderly” withdrawal
of U.S. troops from Indochina at the “earliest possible date.”90 However, these
measures did not include a deadline for troop withdrawal. Although U.S. troop
presence in South Vietnam diminished considerably pursuant to the Nixon
Administration’s “Vietnamization” strategy even prior to these enactments, the
United States continued significant air bombing campaigns in the years following the
rescission of military authorization. During this same period, President Nixon vetoed
or threatened to veto a number of appropriations bills that would have either
prohibited funds from being used for certain military operations in Southeast Asia or
required a complete withdrawal of U.S. troops from Vietnam. In 1973, two years
after rescinding military authorization, Congress was finally able to enact
appropriations limitations, signed by the President, that barred combat operations in
Indochina.91 These appropriations measures were approved only after the signing

88 See Sidak, supra note 85, at 104-105.
89 P.L. 91-672, § 12 (1971).
90 P.L. 92-156, § 601(a) (1971).
91 E.g., P.L. 93-50, §§ 304-307 (1973) (preventing funding expenditures from being used

of a cease-fire agreement with North Vietnam and the withdrawal of U.S. troops from
South Vietnam, and served primarily to end the aerial bombing campaign in
Cambodia and prevent U.S. forces from being reintroduced into hostilities.
In sum, in situations where Congress seeks to prevent the executive’s
continuation of military combat operations, it may be procedurally easier for
Congress to deny appropriations than it would be to statutorily compel a withdrawal
from hostilities. However, past experience suggests that, at least in certain
circumstances, policy considerations may cause the two branches to view the
rescission of military authorization as a more appealing alternative — postponing an
inter-branch conflict on appropriations for a later date, enabling Congress to signal
its interest in winding down a conflict, and (at least temporarily) preserving the
President’s discretion as to how the conflict is waged.
Legal Consequences of Congressional Rescission of Military
Authorization, Absent Additional Congressional Action
Although Congress has the power to rescind authorization of a military conflict
or enact a declaration of peace, the practical effect that such an action might have on
the President’s ability to continue a military conflict may nevertheless remain
difficult to predict. Historically, courts have been unwilling to interpret a
congressional rescission of military authorization as barring the executive from
continuing to wage a military campaign, at least so long as Congress continues to
appropriate money in support of such operations. Although the War Powers
Resolution establishes procedures by which Congress may direct the withdrawal of
U.S. troops from military conflicts that lack statutory authorization, the
constitutionality and practical effects of these requirements have been questioned.
Finally, even in the absence of express congressional authorization, the President
may possess some inherent or implied power as Commander in Chief to continue to
engage in certain military operations. The following sections explain these points in
greater detail.
Judicial Interpretation. Jurisprudence suggests that courts would not
necessarily view a repeal of prior authorization, by itself, as compelling the
immediate withdrawal of U.S. forces. As an overarching matter, courts have been
highly reluctant to act in cases involving national security, especially when they
require a pronouncement as to the legality of a military conflict or the strategies used
therein.92 Many such cases have been dismissed without reaching the merits of the

91 (...continued)
“in or over . . . or off the shores of” Cambodia, Laos, North Vietnam and South Vietnam
after August 15, 1973). For further background and examples of funding restrictions
proposed and enacted, see CRS Report RS20775, Congressional Use of Funding Cutoffs
Since 1970 Involving U.S. Military Forces and Overseas Deployments, by Richard F.
Grimmett, and CRS Report RL33803, Congressional Restrictions on U.S. Military
Operations in Vietnam, Cambodia, Laos, Somalia, and Kosovo: Funding and Non-Funding
Approaches, by Amy Belasco, Lynn J. Cunningham, Hannah Fischer, and Larry A. Niksch.
92 This is not to say that every legal challenge to a wartime activity is doomed to failure. In

arguments at issue, including when they involve a political question that the judiciary
considers itself ill-suited to answer.93 Legal actions brought by Members of Congress
challenging the lawfulness of military actions have had no greater success than suits
brought by private citizens.94 While the courts have suggested a willingness to
intervene in disputes between the two branches that reach a legal (as opposed to
political) impasse, they have yet to find an impasse on matters of war that has
required judicial settlement. In other words, as long as Congress retains options for
bringing about a military disengagement but has not exercised them, courts are
unlikely to get involved.95

92 (...continued)
some circumstances, the courts have found unlawful certain military activities involving the
seizure of property or the detention of enemy combatants, at least in instances such action
was deemed to lack sufficient congressional authorization. See, e.g., Little v. Barreme, 6
U.S. (2 Cr.) 170 (1804) (upholding damage award to owners of U.S. merchant ship seized
during quasi-war with France, when Congress had not authorized such seizures);
Youngstown Sheet and Tube Co. v. Sawyer, 343 U.S. 579, 641 (1952) (finding unlawful the
government seizure of property to settle labor dispute during Korean War); Rasul v. Bush,
542 U.S. 466 (2004) (finding that federal habeas statute applied to persons detained in
Guantanamo Bay pursuant to the “war on terror”); Hamdi v. Rumsfeld, 542 U.S. 507 (2004)
(persons deemed “enemy combatants” in the “war on terror” have right to challenge
detention before a neutral decision-maker); Hamdan v. Rumsfeld, 126 S.Ct. 2749 (2006)
(finding that military tribunals convened by presidential order did not comply with the
Uniform Code of Military Justice).
93 In Baker v. Carr, 369 U.S. 186 (1962), the Supreme Court described situations where the
political question doctrine was implicated:
It is apparent that several formulations which vary slightly according to the
settings in which the questions arise may describe a political question, although
each has one or more elements which identify it as essentially a function of the
separation of powers. Prominent on the surface of any case held to involve a
political question is found a textually demonstrable constitutional commitment
of the issue to a coordinate political department; or a lack of judicially
discoverable and manageable standards for resolving it; or the impossibility of
deciding without an initial policy determination of a kind clearly for nonjudicial
discretion; or the impossibility of a court’s undertaking independent resolution
without expressing lack of respect due coordinate branches of government; or an
unusual need for unquestioning adherence to a political decision already made;
or the potentiality of embarrassment from multifarious pronouncements by
various departments on one question.
Id. at 217.
94 For background and examples, see CRS Report RL30352, War Powers Litigation Initiated
by Members of Congress Since the Enactment of the War Powers Resolution, by David. M.
95 See, e.g, Campbell v. Clinton, 52 F. Supp.2d 34 (D. D.C. 1999) (dismissing action seeking
declaration that the President acted unlawfully in ordering air strikes in Kosovo and
Yugoslavia without congressional authorization, because impasse had not been reached, as
Congress had not barred introduction of U.S. forces or barred appropriations from being
used for such purpose).

The Vietnam conflict is the lone instance where Congress repealed military
authorization while major combat operations were still ongoing. Although the Nixon
Administration significantly decreased the number of U.S. troops present in South
Vietnam following the repeal of the Gulf of Tonkin Resolution and enactment of the
Mansfield Amendment in 1971,96 major combat operations continued into 1973,
when Congress cut off all funding for military operations in Indochina.
During this period, federal courts heard a number of suits challenging the
legality of continued hostilities in the absence of congressional authorization. None
of these challenges proved successful, in large part because Congress continued to
appropriate money for military operations. It is a well-established principle that
Congress’s appropriation of funds may serve in some circumstances to confer
authority for executive action.97 Reviewing courts have found this principle no less
applicable concerning matters of war. The appropriation of billions of dollars in
support of U.S. combat operations in Indochina, even after the repeal of the Gulf of
Tonkin resolution, was viewed as congressional authorization for continued U.S.
participation in hostilities,98 regardless of whether some Members of Congress had

96 In a statement upon signing into law legislation containing the Mansfield Amendment,
President Nixon claimed that its instructions were non-binding and pledged to continue his
own policies for ending the war. Courts reached different conclusions as to the binding
nature of the Mansfield Amendment’s instructions for withdrawal. In 1972, a district court
in the Second Circuit concluded, in an opinion affirmed without opinion by the court of
appeals, that the Amendment “had binding force and effect on every officer of the
Government...[and] illegalized the pursuit of an inconsistent executive or administration
policy.” DaCosta v. Nixon, 55 F.R.D. 145 (E.D.N.Y., 1972), aff’d without opinion, 456 F.2dnd
1335 (2 Cir. 1972). A year later, however, the Second Circuit Court of Appeals, while not
deciding the issue, suggested that the binding nature of the Amendment was unsettled, and
noted that “weighty constitutional considerations which support the President in his duties
as Commander-in-Chief preclude too hasty an adoption of the view” that the Amendmentnd
was binding. DaCosta v. Laird, 471 F.2d 1146, 1156-1157 (2 Cir. 1973).
97 Fleming v. Mohawk Wrecking & Lumber Co., 331 U.S. 111, 116 (1947). See also Berk
v. Laird 317 F. Supp. 715, 727-728 (D.C.N.Y. 1970) (discussing Supreme Court
jurisprudence recognizing congressional appropriations as authorizing executive activity,
and concluding that Congress’s appropriations for ongoing military operations in Indochina
constituted authorization of those activities). Dept. of Justice, Office of Legal Counsel,
2000 OLC LEXIS 16, Authorization for Continuing Hostilities in Kosovo (2000), at * 14-33
(discussing judicial and scholarly recognition of appropriations statutes serving to authorize
combat operations) [hereinafter “OLC Opinion on Hostilities in Kosovo”].
98 See DaCosta v. Laird, 448 F.2d 1368, 1369 (2nd Cir. 1971), cert. denied, 405 U.S. 979 (“In
other words, there was sufficient legislative action in extending the Selective Service Act
and in appropriating billions of dollars to carry on military and naval operations in Vietnam
to ratify and approve the measures taken by the Executive, even in the absence of the Gulfnd
of Tonkin Resolution.”); Orlando v. Laird, 443 F.2d 1039, 1043 (2 Cir. 1971), cert. denied,
404 U.S. 869 (“The framers’ intent to vest the war power in Congress is in no way defeated
by permitting an inference of authorization from legislative action furnishing the manpower
and materials of war for the protracted military operation in Southeast Asia.”);st
Massachusetts v. Laird, 451 F.2d 26, 34 (1 Cir. 1971) (finding that Constitution had not
been breached when President acted with support of Congress, including through the
appropriation of billions of dollars to support ongoing combat operations); see also Berk

a motivation for approving continued appropriations other than that reflected in the
express language of the enacted legislation.99
Courts have also declined on political question grounds to examine the motives
of Congress in choosing to appropriate funds after rescinding direct authorization for
U.S. military activities.100 In the words of one court, any attempt to assess Congress’s
intentions in appropriating funds, and determining whether such appropriations were
truly meant to further continuing hostilities, would necessarily “require the
interrogation of members of Congress regarding what they intended by their votes,
and then synthesization of the various answers. To do otherwise would call for gross
speculation in a delicate matter pertaining to foreign relations.”101 Such an
examination of Congress’s motivations was deemed beyond the scope of appropriate
judicial scrutiny.102
Some argued that Congress’s termination of statutory authorization for ongoing
hostilities and instruction that the conflict end at the soonest practical date barred the
President, at the very least, from “escalating” hostilities. Though the Court of
Appeals for the Second Circuit suggested in a 1971 case that this argument might be
valid,103 subsequent rulings indicated that the court would only be willing to consider
this argument in very limited circumstances. Notably, in the 1973 case of DaCosta
v. Laird,104 the Second Circuit Court of Appeals dismissed a challenge to the
President’s order to mine the harbors of North Vietnam, where it was argued that this
order represented an unlawful escalation of hostilities in light of congressional

98 (...continued)
v. Laird, 317 F. Supp. 715 (E.D.N.Y.1970) (decided prior to repeal of Gulf of Tonkin
resolution, but recognizing that continued appropriation of funds as authorization of
conflict’s continuation).
99 See Holtzman v. Schlesinger, 484 F.2d 1307, 1313-1314 (2nd Cir. 1973), cert. denied, 416
U.S. 936 (1974) (finding appropriations legislation gave President sufficient authority to
order the bombing of Cambodia, despite claim by some Members of Congress that
legislation was “coerced” by presidential veto of appropriations bills that would have
immediately cut off funding of such acts); Drinan v. Nixon, 364 F. Supp. 854 (D.C.Mass.

1973) (same).

100 Orlando, 443 F.2d at 1043 (the decision to endorse military action through appropriations
rather than direct authorization was “committed to the discretion of the Congress and
outside the power and competency of the judiciary, because there are no intelligible and
objectively manageable standards by which to judge such actions”); Sarnoff v. Connally,th
457 F.2d 809, 810 (9 Cir. 1972), cert. denied, 409 U.S. 929 (“Whether a plaintiff
challenges the selective service system or the foreign aid and appropriations aspects of
congressional cooperation in the present conflict, he presents a political question which we
decline to adjudicate.”); Berk, 317 F. Supp. at 728-729 (recognizing that method that
Congress chooses to endorse or authorize action is a political question).
101 Atlee v. Laird, 347 F.Supp. 689, 706 (D.C.Pa. 1972), aff’d without opinion, 411 U.S. 911
102 Id.; Holtzman, 484 F.2d at 1314 &n.4.
103 DaCosta, 448 F.2d at 1370.
104 DaCosta v. Laird, 471 F.2d 1146 (2nd Cir. 1973).

enactments ordering the withdrawal of U.S. troops at the earliest practicable date.
The circuit court dismissed this challenge because it raised a nonjusticiable political
question. Deciding such a case would require the court to assess the strategy and
tactics used by the executive to wind down a conflict, an assessment it was ill-
equipped to make:
Judges, deficient in military knowledge, lacking vital information upon which to
assess the nature of battlefield decisions, and sitting thousands of miles from the
field of action, cannot reasonably determine whether a specific military operation
constitutes an “escalation” of the war or is merely a new tactical approach within
a continuing strategic plan. What if, for example, the war “de-escalates” so that
it is waged as it was prior to the mining of North Vietnam’s harbors, and then
“escalates” again? Are the courts required to oversee the conduct of the war on
a daily basis, away from the scene of action? In this instance, it was the
President’s view that the mining of North Vietnam’s harbor was necessary to
preserve the lives of American soldiers in South Vietnam and to bring the war
to a close. History will tell whether or not that assessment was correct, but105
without the benefit of such extended hindsight we are powerless to know.
Though the circuit court did not completely rule out the possibility that a further
escalation of hostilities could be deemed unlawful, the court suggested it would be
willing to consider such arguments only in the most limited of circumstances. For
example, the court suggested that a “radical change in the character of war operations
— as by an intentional policy of indiscriminate bombing of civilians without any
military objective — might be sufficiently measurable judicially to warrant a court’s106
In Holtzman v. Schlesinger, decided later that year, the Second Circuit Court of
Appeals reversed a lower court decision that had declared unlawful the continued
bombing of Cambodia following the removal of U.S. troops and prisoners of war
from Vietnam. The circuit court held that it was a nonjusticiable political question
as to whether the bombing violated the Mansfield Amendment’s instruction that
hostilities be terminated at the “earliest practicable date.” Comparing the situation
with that at issue in DaCosta, the court found that the challenge raised “precisely the
questions of fact involving military and diplomatic expertise not vested in the107
judiciary.” Further, even assuming arguendo that the military and diplomatic
issues raised by the bombing were judicially manageable, the circuit court found that108

Congress had authorized the bombing through continued appropriations.
105 Id. at 1155.
106 Id. at 1156 (italics added).
107 Holtzman, 484 F.2d at 1309-1310 (2nd Cir. 1973), cert. denied, 416 U.S. 936 (1974).
108 Id. at 1313. Specifically, the court noted the language of § 108 of the Joint Resolution
Continuing Appropriations for Fiscal 1974, P.L. 93-52, which barred funding for military
operations in and around Indochina after August 15, 1973. The Court inferred from this
language that military activities at issue in the case before it, occurring before this deadline,
were authorized.

Taken together, these cases suggest that a reviewing court would probably not
interpret a repeal of prior military authorization as requiring the immediate
withdrawal of U.S. forces from ongoing hostilities in Iraq. Further, courts may be
reluctant to assess whether specific military tactics or strategies pursued by the
executive constitute an impermissible “escalation” of a conflict in the aftermath of
such a repeal.109 Accordingly, it does not appear that the termination of direct
authorization to use force, absent additional action such as the denial of
appropriations or possibly the inclusion of an unambiguous deadline for troop
withdrawal, would be interpreted by a reviewing court as constraining the executive’s
ability to continue U.S. combat operations.
Implications of the War Powers Resolution. The consequences of a
repeal of an authorization to use military force were arguably made more significant
with the enactment of the War Powers Resolution (WPR).110 Enacted in 1973 over
President Nixon’s veto, the WPR was an effort by Congress to reassert its role in
matters of war — a role that many Members believed had been allowed to erode
during the Korean and Vietnam conflicts. Among other things, the WPR establishes
a procedure by which Congress may (theoretically) compel the President to withdraw
U.S. forces from foreign-based conflicts when a declaration of war or authorization
to use military force has been terminated. Specifically, WPR § 5(c) provides that
at any time that United States Armed Forces are engaged in hostilities outside the
territory of the United States, its possessions and territories without a declaration
of war or specific statutory authorization, such forces shall be removed by the
President if the Congress so directs by concurrent resolution.
While § 5(c) offers a mechanism by which Congress might compel presidential
compliance with a law that had rescinded statutory authorization to use military
force,111 its constitutional validity is doubtful given the Supreme Court’s ruling in the
1983 case of INS v. Chadha.112 In Chadha, the Court held that for a resolution to
become a law, it must go through the bicameral and presentment process in its

109 See, e.g., Mottola v. Nixon, 318 F. Supp. 538, 540 (1970) (characterizing the extension
of the conflict in Vietnam into Cambodia as a “necessary incidental, tactical incursion
ordered by the Commander in Chief” that would be authorized so long as the military
operations in Vietnam were found to be authorized), rev’d on other grounds, 464 F.2d 178th
(9 Cir. 1972)(ordering district court to dismiss for lack of standing).
110 P.L. 93-148 (1973) [hereinafter “War Powers Resolution” or “WPR”]. For further
background and explanation of the War Powers Resolution, see CRS Report RL32267, The
War Powers Resolution: After Thirty Years, by Richard F. Grimmett.
111 The wording of the War Powers Resolution makes clear that appropriations in support
of military operations does not in itself constitute “specific statutory authorization” of those
operations for purposes of WPR requirements. See WPR § 8(a) (noting that authorization
is not to be inferred from provisions “contained in any appropriation Act, unless such
provision specifically authorizes the introduction of United States Armed Forces into
hostilities ... [and states] that it is intended to constitute specific statutory authorization...”).
112 462 U.S. 919 (1983).

entirety.113 Accordingly, a concurrent or simple resolution could not be used as a
“legislative veto” against executive action. Although the Chadha Court did not
expressly find WPR § 5(c) to be unconstitutional, it was listed in Justice White’s
dissent as one of nearly 200 legislative vetoes for which the majority had sounded the
“death knell,”114 and most commentators have agreed with this assessment.115 Thus,
it seems highly unlikely that the WPR could be used to enforce a congressional repeal
of an authorization to use military force in Iraq.
Section 5(b) of the WPR establishes a requirement for the withdrawal of U.S.
troops 60 days after armed forces are introduced without congressional authorization
into a situation where hostilities are imminent, unless Congress enacts legislation
providing authority for the use of force or extends the deadline.116 This provision
would not appear to supply a means by which Congress could compel the withdrawal
of U.S. forces from Iraq, as the introduction of those forces was done pursuant to
congressional authorization.117 Even if Congress were to rescind that authorization,
the legality of actions taken pursuant to it would not be nullified.118 Arguably,

113 Id. at 951.
114 Id. at 967, 1003 (White, J., dissenting).
115 See, e.g., Senate Foreign Relations Comm. Rep., Persian Gulf and the War Powers
Resolution, S.Rept. No. 106, 100th Cong., 1st Sess., at 6 (1987) (describing § 5(c) as being
“effectively nullified” by the Chadha decision); HENKIN, supra note 55, at 126-127
(recognizing invalidation of § 5(c) by Chadha and describing arguments to the contrary as
“plausible but not compelling”); WORMUTH AND FIRMAGE, supra note 13, at 222 (noting
that the reasoning of Chadha “apparently invalidates secion 5(c) of the War Powers
Resolution”); Ronald D. Rotunda, the War Powers Act in Perspective, 2 MICH. L. & POLY
REV. 1, 8 (1997) (claiming that most “scholars have concluded that...[§ 5(c)] is
unconstitutional ever since INS v. Chadha). In contrast, some have argued that neither a
declaration of war nor a subsequent rescission of authorization to use force constitutes an
“ordinary” act of legislation falling under the requirements of the Presentment Clause. See
Stephen L. Carter, The Constitutionality of the War Powers Resolution, 70 VA. L. REV. 101,
130-132 (1984). The legitimacy of this argument is untested and highly controversial, as
Congress has always presented a declaration of war or authorization to use military force
to the president. Further, even assuming arguendo that a declaration of war does not need
to be presented to the President, it is not necessarily clear that legislation ending hostilities
would also not require presentment. See HENKIN, supra note 55, at 127, 379; Carter, supra,
at 130-132 (describing weaknesses of argument against presentment requirement); see also
Sidak, supra note 85, at 84-85 (discussing historical and scholarly view that presentment is
116 The requirement in § 5(b) does not apply in cases in which Congress “is physically
unable to meet as a result of an armed attack upon the United States.” 50 U.S.C. § 1554.
The 60-day deadline is automatically extended for thirty days “if the President determines
and certifies to the Congress in writing that unavoidable military necessity respecting the
safety of United States Armed Forces requires the continued use of such armed forces in the
course of bringing about a prompt removal of such forces.”
117 P.L. 107-243, § 5 (c) (“Congress declares that this section is intended to constitute
specific authorization within the meaning of section 5(b) of the War Powers Resolution.”).
118 See DaCosta, 448 F.2d at 1369 (the repeal of Gulf of Tonkin resolution “ did not wipe

however, a substantial increase in troop levels that takes place subsequent to any
repeal of the authorization for use of military force against Iraq could trigger the
requirements of WPR § 5(b),119 although it is unclear how large such an increase
would need to be before it would be sufficiently “substantial.”120 Congress has in
the past enacted or considered legislation declaring the 60-day limit to have taken
effect, although apparently with little practical effect.121 In any case, it appears that
WPR section 5(c), which permits Congress to compel the withdrawal of U.S. troops
via concurrent resolution, was intended to address situations where Congress desired
an end to previously authorized hostilities.
Inherent Presidential Authority to Use Military Force Absent
Congressional Authorization. Even in the absence of express congressional
authorization, it is well-recognized that the President may still employ military force
in some circumstances pursuant to his powers as Commander in Chief and his122
inherent authority in the area of foreign affairs, at least so long as no statute stands
in his way. A President would likely argue that this inherent authority would permit
him to instruct U.S. forces to engage in certain military operations related to an
ongoing conflict, even if statutory authorization for U.S. participation in that conflict
had been rescinded. Further, even if Congress were to enact legislation requiring the
cessation of military operations after a specified date, it is highly unlikely that this
measure would be interpreted to prohibit any and all military operations, specifically

118 (...continued)
out its history nor could it have the effect of a nunc pro tunc action”).
119 P.L. 93-148, §§ 4(a), 5(b). The reporting requirement in § 4(a), which begins the sixty-
day withdrawal deadline, also comes into effect in the event troops are introduced in
“numbers which substantially enlarge United States Armed Forces equipped for combat
already located in a foreign nation.” However, it appears that the deadline only applies if
the report was made necessary due to circumstances described in § 4(a)(1), where troops are
initially introduced into hostilities. See MICHAEL J. GLENNON, CONSTITUTIONAL
DIPLOMACY 103 (1990)(explaining that the omission of a requirement for the President to
specify whether a report is submitted pursuant to § 4(a)(1) or § 4(a)(2) or (3) makes it
impossible to know whether the sixty-day time period has been triggered).
120 In addition, it could be argued that even if Congress repealed the AUMF, the subsequent
appropriation of funds in support of military operations would constitute legal authorization
for such activity — at least in circumstances where Congress intended appropriations to
support further hostilities, rather than simply to protect troops already in the field. See OLC
Opinion on Hostilities in Kosovo, supra note 97, at * 33-52 (discussing instances in which
appropriations suggest a clear intent by Congress to authorize further hostilities, and arguing
that the WPR “ cannot be read to deny legal effect to...[the] clear intent” of Congress to use
appropriations measures to authorize further hostilities).
121 See GLENNON, supra note 119, at 104 (noting efforts with respect to Lebanon in 1983,
P.L. 98-119, and Grenada, in which case no such final triggering legislation emerged,
despite both Houses having passed measures to that effect). The necessity for separate
legislation to trigger the triggering provision, subject as it is to presidential veto, seems to
defeat the purpose for § 5(b). See id. at 105 (opining that the provision’s “central objective
was to create a self-activating mechanism to control abuse of presidential discretion in the
event Congress lacked the backbone to do so”).
122 See supra at 9-15.

as they relate to rescue and evacuation missions. It appears well-understood, at least
as a matter of historical practice, that such missions are not intended to be covered
under legislation otherwise barring future participation in hostilities.123
III. Use of the Power of the Purse to Restrict
Military Operations
Congress has used its spending power to restrict the deployment and use of the
armed forces in the past.124 In 1973, for instance, after other legislative efforts failed
to draw down U.S. participation in combat operations in Indochina,125 Congress
effectively ended it by means of appropriations riders prohibiting use of funds.
Section 307 of the Second Supplemental Appropriations Act for Fiscal Year 1973,
P.L. 93-50 (1973), stated that, “None of the funds herein appropriated under this act
may be expended to support directly or indirectly combat activities in or over
Cambodia, Laos, North Vietnam, and South Vietnam, and after August 15, 1973, no
other funds heretofore appropriated under any other act may be expended for such
purpose.” Section 108 of the Continuing Appropriations Resolution for Fiscal Year

1974, P.L. 93-52 (1973), provided that, “Notwithstanding any other provision of law,

on or after August 15, 1973, no funds herein or heretofore appropriated may be
obligated or expended to finance directly or indirectly combat activities by United
States military forces in or over or from off the shores of North Vietnam, South
Vietnam, Laos or Cambodia.” A year later, Congress passed an authorizing statute,
section 38(f)(1) of the Foreign Assistance Act of 1974, P.L. 93-559 (1974), which set

123 For example, even after Congress enacted legislation cutting off funding for all combat
operations in Indochina, President Ford’s subsequent use of military forces to evacuate U.S.
citizens and third country nationals was not seriously questioned, nor was a subsequent
authorization of an operation to rescue the crew of the Mayaguez from Cambodian territory
(a mission which was reported to Congress following the procedures of the War Powers
Resolution, but only after the operation was completed). For background on congressional
attitudes towards these rescue missions, see FISHER, supra note 11, at 157-158. See also
Rappenecker v. United States, 509 F.Supp. 1024, 1030 (D.C. Cal. 1980). The Rappenecker
case involved a civil suit by former crewmen of the Mayaguez for injuries they received
during their rescue. Although the President ordered their rescue in the absence of prior
congressional authorization, the Court assumed that the order was constitutionally valid.
124 For examples of such measures and a discussion of the context in which they were
enacted, see CRS Report RS20775, Congressional Use of Funding Cutoffs Since 1970
Involving U.S. Military Forces and Overseas Deployments, by Richard F. Grimmett, and
CRS Report RL33803, Congressional Restrictions on U.S. Military Operations in Vietnam,
Cambodia, Laos, Somalia, and Kosovo: Funding and Non-Funding Approaches, by Amy
Belasco, Lynn J. Cunningham, Hannah G. Fischer, and Larry A. Niksch. See also, e.g.,
Louis Fisher, How Tightly Can Congress Draw the Purse Strings?, 83 AM.J.INTL. L. 758
(1989), and Tiefer, supra note 4.
125 See P.L. 91-672, § 12, 84 Stat. 2053 (repealing Gulf of Tonkin Resolution); P.L. 92-156,
§ 601(a), 85 Stat. 423, 430 (Mansfield Amendment); see also P.L. 92-156, § 501(a), 85 Stat.

423, 427 (1971) (Fullbright proviso).

a total ceiling of U.S. civilian and military personnel in Vietnam of 4,000 six months
after enactment and a total ceiling of 3,000 within one year of enactment.
A provision of an authorization act, section 404 of the International Security
Assistance and Arms Export Control Act of 1976, P.L. 94-329 (1976),
comprehensively prohibited using funds for military and paramilitary operations in
Angola. It stated that:
Notwithstanding any other provision of law, no assistance of any kind may be
provided for the purpose, or which would have the effect, of promoting,
augmenting, directly or indirectly, the capacity of any nation, group,
organization, movement, or individual to conduct military or paramilitary
operations in Angola, unless and until Congress expressly authorizes such
assistance by law enacted after the date of enactment of this section.
This section added that if the President determined that the prohibited assistance
to Angola should be furnished, he should submit to the Speaker of the House and the
Senate Committee on Foreign Relations a report describing recommended amounts
and categories of assistance to be provided and identities of proposed aid recipients.
This report also was to include a certification of his determination that furnishing
such assistance was important to U.S. national security interests and an unclassified
detailed statement of reasons supporting it.
Section 109 of the Foreign Assistance and Related Programs Appropriations Act
for Fiscal Year 1976, P.L. 94-330 (1976), signed the same day as P.L. 94-329,
provided that, “None of the funds appropriated or made available pursuant to this act
shall be obligated to finance directly or indirectly any type of military assistance to
In the 1980s, various versions of the Boland Amendment were enacted to
prohibit using funds for various military activities in or around Nicaragua.126 For
example, section 8066 of the Department of Defense Appropriations Act included in
the Continuing Appropriations Resolution for Fiscal Year, 1985, P.L. 98-473, 98
Stat. 1935 (1984), for example, stated that “During Fiscal Year 1985, no funds
available to the Central Intelligence Agency, the Department of Defense, or any other
agency or entity of the United States involved in intelligence activities may be
obligated or expended for the purpose, or which would have the effect of supporting,
indirectly or indirectly, military or paramilitary operation in Nicaragua by any nation,
group, organization, movement or individual.” This provision stated that after
February 28, 1985, the President could expend $14 million in funds if the President
made a report to Congress which specified certain criteria, including the need to
provide further assistance for military or paramilitary operations prohibited by the
Boland Amendment, and if Congress passed a joint resolution approving such action.
In the 1990s, Congress enacted section 8151 of the DOD Appropriations Act for
Fiscal Year 1994, P.L. 103-139 (1993), which approved using armed forces for
certain purposes including combat in a security role to protect United Nations units

126 E.g., P.L. 98-473, § 8066, 98 Stat. 1904, 1935 (1984); see 133 Cong Rec. 15664-15701
(June 15, 1987) (detailing various forms of the Boland Amendment that were enacted).

in Somalia, but cut off funding after March 31, 1994, except for a limited number of
military troops to protect American diplomatic personnel and American citizens
unless further authorized by Congress. Section 8135 of the DOD Appropriations Act
for Fiscal Year 1995, P.L. 103-335 (1994), provided that, “None of the funds
appropriated in this act may be used for the continuous presence in Somalia of United
States military personnel, except for the protection of United States personnel, after
September 30, 1994.” In title IX of the DOD Appropriations Act for Fiscal Year
1995, P.L. 103-335 (1994), Congress provided that, “No funds provided in this act
are available for United States military participation to continue Operation Support
Hope in or around Rwanda after October 7, 1994, except for any action that is
necessary to protect the lives of United States citizens.”
These examples reveal the approaches that Congress has employed to prohibit
or restrict using military force. They have ranged from the least comprehensive
“none of the funds appropriated in this act may be used” to the most comprehensive
“notwithstanding any other provision of law, no funds may be used.” The phrase
“none of the funds appropriated in this act” limits only funds appropriated and made
available in the act that carries the restriction, but not funds, if any, that may be
available pursuant to other appropriations acts or authorizing statutes. To restrict
funds appropriated and made available not only in the act that carries the restriction,
but also pursuant to other appropriations acts, Congress has used the phrase “none
of the funds appropriated in this act or any other act may be used.” The most
comprehensive restriction is “notwithstanding any other provision of law, no funds
may be used.” This language precludes using funds that have been appropriated in
any appropriations acts as well as any funds that may be made available pursuant to
any authorizing statutes including laws that authorize transfers of appropriated or
nonappropriated funds.127
Procedural Considerations
There is a parliamentary impediment to including the phrases “none of the funds
appropriated in this act or any other act may be used” or “notwithstanding any other
provision of law, no funds may be used” in a general appropriations bill. House Rule
XXI, clause 2, makes subject to a point of order language that changes existing law
(i.e., legislation) in a general appropriations bill (i.e., one providing appropriations
for several agencies). A bill that appropriates funds for a single purpose or a single
agency is not a general appropriations bill to which this restriction applies. The
intent of Rule XXI, clause 2 is to separate the authorizing and appropriating functions
and place them in separate committees.

127 See, e.g., 31 U.S.C. chap. 15, subchap. III “Transfers and Reimbursements” for provisions
that authorize transfers of funds, including the Economy Act, 31 U.S.C. §§ 1535 and 1536,
which allows an agency to transfer funds to another agency if the receiving agency can
provide or get by contract goods or services less expensively or more conveniently than the
ordering agency can get goods or services by a contract with a commercial enterprise.
Transfer authority also is included in some other provisions of the United States Code that
apply to individual departments and agencies and sometimes in appropriations acts.

Nonetheless, a practice has developed that just as the House may decline to
appropriate funds for a purpose that has been authorized by law, it may by limitation
prohibit appropriating money in a general appropriations bill for part of a purpose
while appropriating funds for the remainder of it. Such a limitation “... may apply
solely to the money of the appropriation under consideration” and “... may not apply
to money appropriated in other acts.”128 Thus, the phrase “none of the funds
appropriated in this act may be used” is not subject to a point of order, but the phrase
“none of the funds appropriated in this act or any other act may be used” and the
phrase “notwithstanding any other provision of law, no funds may be used” do not
appear to qualify as permissible limitations in a general appropriations bill and would
be subject to points of order under Rule XXI, clause 2 because they are considered
legislation. To avoid a point of order, a limitation in a general appropriations bill
may not impose new or additional duties on an executive official, may not restrict
authority to incur obligations, and may not make an appropriation contingent upon
(i.e., “unless” or “until”) the occurrence of an event not required by law.129 If a
Member raises a point of order that language in a general appropriations bill violates
Rule XXI, clause 2, and the point of order is sustained by the chair, the legislative
language is stricken.
Although legislation in a general appropriations bill is subject to a point of order
under Rule XXI, clause 2, a restriction in a House rule is not self-enforcing.
Consequently, legislation may be included in a general appropriations bill and
become law if no point of order is raised, if a point of order is overruled, or if the
House either suspends the rules or agrees to a special order known as a rule reported
from the Committee on Rules that waives the point of order against including such
legi slation.130
Like House Rule XXI, clause 2, Senate Standing Rule XVI also prohibits
including legislation in a general appropriations bill, but the Senate rule permits
legislation to be included if it is germane to the subject matter of the bill under
consideration. If a point of order that language constitutes legislation on an
appropriations bill is raised, the proponent of the language may defend it by asserting
that it is germane. The question of germaneness is not decided by the presiding
officer; it is submitted to the Senate. If a majority of Senators vote that the language
in question is germane, it remains in the bill and the point of order that it constitutes
legislation is dismissed and is not presented to the presiding officer for a ruling. If
a majority of the Senate votes that language is not germane, the presiding officer then
rules on whether it constitutes legislation. If the point of order is sustained, the
language is removed; if it is overruled, the language remains in the bill and can be
enact ed. 131

128 See John V. Sullivan, House Parliamentarian, Constitution, Jefferson’s Manual, and
Rules of the House of Representatives One Hundred Ninth Congress, H. DOC. 108-241, at
§ 1053 (2005).
129 See id. at §§ 1053-57 for an explanation of limitations.
130 Id. at § 1058.
131 Floyd M. Riddick, Senate Parliamentarian Emeritus, and Alan S. Frumin, Senate

As mentioned earlier, the intent of these House and Senate rules is to separate
authorizing and appropriating functions by constraining the bodies from enacting
legislation in appropriations bills, but prohibiting use of funds for a purpose or
purposes does not contravene the House or Senate rule provided that the prohibition
applies only to funds appropriated in the bill being considered.
Because an appropriations act generally funds programs for a fiscal year, each
provision contained in the act is presumed to be in effect only until the end of the
fiscal year. “A provision contained in an annual appropriation act is not to be
construed as permanent legislation unless the language used therein or the nature of
the provision makes it clear that Congress intended it to be permanent. The
presumption can be overcome if the provision uses language indicating futurity or if
the provision is of a general character bearing no relation to the object of the
appropriation.... The most common word of futurity is ‘hereafter’ and provisions
using this term have often been construed to be permanent.”132 Other words of
futurity include “after the date of approval of this act,”“henceforth,” and specific
references to future fiscal years.133
While including a word or words of futurity has the effect of making a provision
extend beyond the fiscal year covered by an appropriations act, such a provision
would constitute legislation that would appear to be subject to a point of order under
House Rule XXI, clause 2 and Senate Standing Rule XVI during congressional
consideration. If the parliamentary impediments can be overcome, however, such
legislation may be enacted and become valid law.
Availability of Alternative Funds
A fundamental principle in appropriations law is that appropriations may not be
augmented with funds from outside sources without statutory authority.
As a general proposition, an agency may not augment its appropriations from
outside sources without specific statutory authority. When Congress makes an
appropriation, it also is establishing an authorized program level. In other words,
it is telling the agency that it cannot operate beyond the level that it can finance
under its appropriation. To permit an agency to operate beyond this level with
funds derived from some other source without specific congressional sanction
would amount to a usurpation of the congressional prerogative. Restated, the
objective of the rule against augmentation of appropriations is to prevent a
government agency from undercutting the congressional power of the purse by134

circuitously exceeding the amount Congress has appropriated for that activity.
131 (...continued)
Parliamentarian, Riddick’s Senate Procedure: Precedents and Practices, S. DOC. 101-28,
at 101 et seq. (1992).
PRINCIPLES OF APPROPRIATIONS LAW 2-34 (3d ed. 2006) (footnotes omitted).
133 Id. at 2-36.

While no statute in precise terms expressly prohibits augmenting appropriations,
the concept is based on some appropriations laws. The Miscellaneous Receipts
Statute, 31 U.S.C. § 3302(b), requires that a government official who receives money
for the government from any source must deposit it in the U.S. Treasury as soon as
practicable without deduction for any charge or claim. Under the Purpose Statute,
31 U.S.C. § 1301, appropriated funds may be used only for the purposes for which
they are appropriated. A criminal provision, 18 U.S.C. § 209, prohibits
supplementing the salary of an officer or employee of the government from any
source other than the United States government.135
An example of a statute permitting gift funds from other countries to finance a
war is section 202 of the Continuing Resolution for Fiscal Year 1991, P.L. 101-403
(1990), passed before the first Gulf war. Section 202 added a new section 2608 to
title 10 of the United States Code to authorize any person, foreign government, or
international organization to contribute money or real or personal property for use by
the Department of Defense. However, before the Department of Defense could spend
the funds, they had to be first appropriated by Congress.
The Purpose Statute states that funds may be used only for purposes for which
they have been appropriated; by implication it precludes using funds for purposes
that Congress has prohibited. When Congress states that no funds may be used for
a purpose, an agency would violate the Purpose Statute if it should use funds for that
purpose; it also in some circumstances could contravene a provision of the
Antideficiency Act, 31 U.S.C. § 1341. Section 1341 prohibits entering into
obligations or expending funds in advance of or in excess of an amount appropriated
unless authorized by law. If Congress has barred using funds for a purpose, entering
into an obligation or expending any amount for it would violate the act by exceeding
the amount — zero — that Congress has appropriated for the prohibited purpose.136
To determine whether an agency has violated the Antideficiency Act, it would
be necessary to review the language in an appropriations act or authorizing statute
that includes a prohibition on using funds for a specific purpose. If an appropriations
act prohibits using funds “in this act” for a purpose, for example, expending any
amount from that act for the prohibited purpose would appear to contravene the
Antideficiency Act because Congress has appropriated zero funds for it. Entering
into obligations or expending funds, if any, that may be available from a different
appropriations act or other fund for that purpose, however, would not appear to be
prohibited by the Antideficiency Act; an agency would be able to use funds from
sources other than the appropriations act that contains the prohibition or limitation.
Violating the Antideficiency Act would be significant because it has notification
and penalty provisions not found in the Purpose Statute. The Purpose Statute does
not expressly provide for penalties; it generally is enforced by imposing

134 (...continued)
OF APPROPRIATIONS LAW, 6-162 (3d ed. 2006).
135 Id. at 6-163.
136 Id. at 6-62.

administrative sanctions on the officer or employee who violates the statute.137 The
Antideficiency Act, by contrast, contains a provision that not only provides for
administrative discipline, including, when circumstances warrant, suspension from
duty without pay or removal from office, 31 U.S.C. § 1349, but also one that requires
an immediate report of a violation to the President and Congress, 31 U.S.C. § 1351.
Moreover, the Antideficiency Act has a criminal penalty provision: Section 1350 of
title 31 provides that an officer or employee who “knowingly and willfully” violates
the act “shall be fined not more than $5,000, imprisoned for not more than two years,
or both.” Although the act has a criminal provision, no one appears to have been
prosecuted or convicted for violating it.138 Another criminal provision, 18 U.S.C. §

435, not part of the Antideficiency Act, makes punishable by a fine of $1,000,

imprisonment of not more than one year, or both, knowingly contracting to erect,
repair, or furnish any public building or for any public improvement for an amount
more than the amount appropriated for that purpose.
The Antideficiency Act prohibits entering into obligations or expending funds
in advance of or in excess of an amount appropriated unless authorized by law. One
law that authorizes entering into obligations in advance of appropriations is the Feed
and Forage Act. Also referred to as Revised Statute 3732, the Feed and Forage Act
is part of and an express exception to the Adequacy of Appropriations Act, 41
U.S.C. § 11. Section 11 generally states that no government contract or purchase
may be made unless it is authorized by law or is under an appropriation adequate to
its fulfillment. The Feed and Forage Act exception authorizes the Department of
Defense and the Department of Transportation139 with respect to the Coast Guard
when it is not operating as service in the Navy to make contracts in advance of
appropriations for clothing, subsistence, forage, fuel, quarters, transportation, or
medical and hospital supplies. Obligations entered into pursuant to Feed and Forage
Act authority must not exceed the necessities of the current year. The Secretary of
Defense and the Secretary of Transportation immediately must advise Congress of
the exercise of this authority and report quarterly on the estimated obligations
incurred pursuant to it.140 Although the Feed and Forage Act authorizes entering into
obligations such as contracts, actual expenditures are not permitted pursuant to this
authority until Congress appropriates the necessary funds.141

137 Id. at 6-78.
138 Id. at 6-141.
139 6 U.S.C. § 468 transfers the Coast Guard to the Department of Homeland Security, but
a corresponding change to 41 U.S.C. § 11 has not been enacted.
140 See LOUIS FISHER, PRESIDENTIAL SPENDING POWER 238-247 (1975) for an explanation
of the Feed and Forage Act.
141 See Secretary of Defense (Comptroller), Budget Execution Flexibilities, Fiscal Year

2005 (2004), available at [


Redeployment from Iraq:
Provisions in the Vetoed Supplemental
On May 1, 2007, President George W. Bush vetoed the U.S. Troop Readiness,
Veterans’ Care, Katrina Recovery, and Iraq Accountability Appropriations Act, H.R.142
1591. In his veto message, the President said that the bill was objectionable
because it would set an arbitrary date to begin withdrawing American forces from
Iraq and would micromanage commanders in the field by restricting their ability to
fight. He also objected to the inclusion of billions of dollars of spending and other
provisions not related to the war. Finally, he asserted that the bill was
unconstitutional because it “purport[ed] to direct the conduct of operations of war in
a way that infringes upon the powers vested in the presidency by the Constitution,
including as commander in chief of the Armed Forces.”143 The next day, the House
of Representatives, by a vote of 222 to 203 — two-thirds not voting in the affirmative
— failed to override the veto.144
Criteria Relating to Troops. Section 1901 of H.R. 1591, had it become law,
would have provided that none of the funds appropriated or made available in the
supplemental appropriations bill or in any other act could be used to deploy any
armed forces unit unless the chief of the military department concerned certified in
writing to the Committees on Appropriations and the Committees on Armed Services
in advance of deployment that the unit was “fully mission capable” (i.e., “capable of
performing assigned mission essential tasks to prescribed standards under the
conditions expected in the theater of operations, consistent with the guidelines set
forth in the Department of Defense readiness reporting system”). The President
would have had the authority to waive the capability requirement on a unit-by-unit
basis if he certified in writing to the appropriate committees that deploying a unit that
is not fully mission-capable were required for reasons of national security and
transmitted a report detailing the reason or reasons.
Under section 1902, no funds appropriated or made available in the
supplemental or in any other act would have been permitted to be obligated or
expended to initiate developing, to continue developing, or to execute any order that
would have the effect of extending the deployment of any Army, Army Reserve, or

142 The House agreed to its version of H.R. 1591 by a vote of 218 to 212 on March 23, 2007.
153 CONG. REC. H2999 (daily ed. March 23, 2007). On March 29, 2007, the Senate agreed
to its version of H.R. 1591 by a vote of 51 to 47. 153 CONG. REC. S4093 (daily ed. March

29, 2007). The House agreed to the conference report to accompany H.R. 1591 on April 25,

2007, by a vote of 218 to 208. 153 CONG. REC. H4157-H4158 (daily ed. April 25, 2007).

See 153 CONG. REC. H3823 (daily ed. April 24, 2007) for a reprint of the conference report,
H.Rept. 110-107. The Senate agreed to the conference report on April 26, 2007, by a vote
of 51 to 46. 153 CONG. REC. S5153 (daily ed. April 26, 2007). For a comprehensive
discussion of H.R. 1591 and the status of followup legislation, see CRS Report RL33900,
FY2007 Supplemental Appropriations for Defense, Foreign Affairs, and Other Purposes,
by Stephen Daggett, Amy Belasco, Pat Towell, Susan B. Epstein, Connie Veillette, Curt
Tarnoff, Rhoda Margesson, and Bart Elias.
143 See 153 CONG. REC. H4315 (daily ed. May 2, 2007) for a reprint of the veto message.
144 Id. at H4326.

Army National Guard unit beyond 365 days or of any Marine Corps or Marine Corps
Reserve unit beyond 210 days. This limitation was not to be construed to require
force levels in Iraq to be decreased below the total U.S. force levels in Iraq prior to
January 10, 2007. The President would have had the authority to waive this
limitation on a unit-by-unit basis by certifying in writing national security reasons
and reporting details to the Committees on Appropriations and the Committees on
Armed Services.
Pursuant to section 1903, no funds in the supplemental or in any other act were
to be available for deploying Army, Army Reserve, or Army National Guard units
for Operation Iraqi Freedom if such unit had been deployed within the previous 365
days, or for deploying any Marine Corps or Marine Corps Reserve unit if such unit
had been deployed within the previous 210 days. This limitation was not to be
construed to require force levels in Iraq to be decreased below the levels in that
country prior to January 10, 2007. Like the limitations in sections 1901 and 1902,
this one would have been subject to waiver by the President on a unit-by unit basis
under the certification and notification procedures prescribed in the earlier
Benchmarks for Iraqi Government and Dates for Redeployment.
Section 1904 modified House and Senate language relating to Iraqi benchmarks and
timetables. It would have required the President by July 1, 2007, to make and report
to Congress determinations relating to progress that the government of Iraq is making
in meeting benchmarks taken from the House and Senate bills. The President’s
inability to make any of the determinations relating to the benchmarks was to have
resulted in the commencement of troop redeployment from Iraq no later than July 1,
2007, with a goal of completing redeployment within 180 days. If the President were
able to make the determinations, the Secretary of Defense would have been required
to commence redeploying forces from Iraq not later than October 1, 2007, with a goal
of completing redeployment within 180 days. In either case, funds appropriated or
otherwise made available in the bill or any other act were to be immediately available
to plan and execute a safe and orderly redeployment of the Armed Forces from Iraq.
Section 1904(a) of H.R. 1591 would have directed the President to determine
and report findings to Congress on or before July 1, 2007, that relate to several
matters including whether the Iraqi government —
!has given U.S. and Iraqi forces authority to pursue all extremists and
is making substantial progress in delivering Iraqi forces to Baghdad
and protecting them from political interference;
!is making substantial progress in meeting its commitment to pursue
reconciliation initiatives, including enacting a hydro-carbon law,
adopting legislation for conducting provincial and local elections,
reforming current laws governing the de-Baathification process,
amending the Iraqi constitution, and allocating Iraqi revenues for
reconstruction projects;
!is making, with U.S. armed forces, substantial progress in reducing
the level of sectarian violence in Iraq; and

!is ensuring the rights of minority political parties in the Iraqi
Parliament are protected.
Under section 1904(e), after the conclusion of the 180-day redeployment period
specified above, the Secretary of Defense would not be permitted to deploy or
maintain members of the U.S. armed forces for any purpose other than the following:
!protecting American diplomatic facilities and American citizens,
including U.S. armed forces;
!serving in roles consistent with customary diplomatic positions;
!engaging in targeted special actions limited in duration and scope to
killing or capturing members of al-Qaeda and other terrorist
organizations with global reach; or
!training members of the Iraqi security forces.
Section 1904(f) would have required that 50% of funds for assistance to Iraq
under the headings “Economic Support Fund” and “International Narcotics Control
and Law Enforcement” was to be withheld from obligation until the President had
made a determination that the government of Iraq has met certain benchmarks.
Finally, Section 1904(h) would have required that, beginning on September 1,

2007, and every 60 days thereafter, the Commander of the Multi-National Forces,

Iraq, and the U.S. Ambassador to Iraq were jointly to submit to Congress a report
describing and assessing in detail the progress that the government of Iraq is making
regarding benchmarks listed in section 1904(a).
Other Restrictions. Section 1311 would have prohibited the use of funds in
the supplemental or in any other act to establish any military installation or base for
the permanent stationing of U.S. military forces in Iraq or to exercise U.S. control
over oil revenues in Iraq. Section 1312 would have denied authority to use funds in
the supplemental to contravene several conventions and laws, including the United
Nations Convention Against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment and 18 U.S. Code section 2340A. This limitation also
applied to renditions. Section 1313 contained a requirement for the Secretary of
Defense, within 30 days of enactment and every 90 days thereafter, to submit to the
congressional defense committees a classified report assessing the individual
transition readiness of units of Iraqi and Afghan security forces.
Provisions from the Enacted Supplemental, P.L. 110-28
The House and Senate agreed to H.R. 2206, the U.S. Troop Readiness,
Veterans’ Care, Katrina Recovery, and Iraq Accountability Act Appropriations Act,145
P.L. 110-28, on May 24, 2007, and the President signed it on May 25. This act

145 The House divided the question and held two votes; the first one on $10.8 billion in

provides supplemental funding through September 30, 2007, with no timetable for
withdrawing troops. Section 1314 contains the major provisions relating to Iraq; it
establishes 18 political and security benchmarks for the Iraqi government to meet.
These benchmarks, similar to those that were included in the vetoed H.R. 1591,
include enacting and implementing legislation on de-Baathification and on ensuring
equitable distribution of hydrocarbon resources, increasing the number of Iraqi
security forces units capable of operating independently, and allocating $10 billion
in Iraqi revenues for reconstruction projects, including delivering essential services,
on an equitable basis.
The President is required to submit reports to Congress by July 15, 2007, and
by September 15, 2007, on whether the Iraqi government is making sufficient
progress in achieving these benchmarks. Obligation of reconstruction assistance to
Iraq in the Economic Support Fund, about $1.6 billion, is prohibited unless the
President certifies in both reports that Iraq is making progress on all the benchmarks
or waives this requirement with a detailed rationale. The act requires an assessment
of progress by the Iraqi government in meeting the benchmarks from the Government
Accountability Office and an assessment of combat readiness of Iraqi security forces
from an independent private sector entity selected by the Department of Defense.
P.L. 110-28 does not include criteria relating to United States forces including
mission readiness, periods between deployments, and duration of deployments,
which were a part of the vetoed H.R. 1591 and could have been waived on a unit-by-
unit basis by the President for national security reasons.
An earlier version of H.R. 2206, passed by the House, would have split the total
amount into two portions. The first portion, about $47.6 billion, would have been
available immediately to fund about two additional months of military operations.
The second portion, about $53.2 billion, would have been available only if the
President on or before July 13, 2007, submitted a report to Congress detailing
progress of the Iraqi government in meeting political and security benchmarks,
similar to those that were included in the vetoed H.R. 1591, and a joint resolution of
approval was enacted into law.146 The Senate passed on May 17, 2007, a version of
H.R. 2206 that expressed the sense of Congress in support of United States forces
and requested a conference with the House.147 The House earlier rejected by a vote

145 (...continued)
congressional additions to the request by the Department of Defense passed by a vote of 348
to 73, and the second one on $88.5 billion requested by DOD passed by a vote of 280 to 142.
See 153 CONG. REC. H5909-5911 (daily ed. May 25, 2007, which continued proceedings of
May 24) for these votes and 153 CONG. REC. H5776-H5800 and H5801-5805 (daily ed. May
25, 2007) for the text of the first and second amendments, respectively. The Senate agreed
to H.R. 2206 by a vote of 80 to 14. 153 CONG. REC. S6823 (daily ed. May 24, 2007).
146 The House agreed to its May 10 version of H.R. 2206 by a vote of 221 to 205. See 153
CONG. REC. H4831-H4854 and H4866-H4867 (daily ed. May 11, 2007) for the text and vote
on H.R. 2206, respectively.
147 The Senate agreed to its May 17 version of H.R. 2206 by a vote of 94 to 1. See 153
CONG. REC. S6218-6219 (daily ed. May 17, 2007) for the text and vote on H.R. 2206,

of 171 to 255 H.R. 2337, a bill to require the Department of Defense to redeploy
service members and contractors from Iraq within 180 days.148
The rule reported by the Committee on Rules which provided for consideration
of H.R. 2206 in the House of Representatives, H.Res. 486, 110th Cong., 1st Sess.,
makes in order as an amendment the text of H.R. 2451, which requires withdrawing
most United States forces from Iraq by June 28, 2008, when the House considers
supplemental appropriations for military operations in Iraq or Afghanistan for
Provisions from the Consolidated Appropriations Act,
P.L. 110-161
The Senate on December 18, 2007,150 and the House the following day151 passed
H.R. 2764, the Consolidated Appropriations Act, 2008 (P.L. 110-161),152 which the
President signed on December 26, 2007. The act provides $70 billion in supplemental
appropriations for military activities in Iraq. Language requiring redeployment of U.S.
armed forces from Iraq is not included, but Section 609 of Division L of the act
mandates that the Secretary of Defense should report to Congress on progress toward
stability in Iraq within 60 days after enactment and every 90 days thereafter. The
Secretary’s reports should address several matters including measures of political
stability, primary indicators of the degree of security in Iraq, estimated strength of the
insurgency, criteria for assessing capabilities and readiness of Iraqi military forces and
police, and an assessment of U.S. military requirements, including planned force
rotations through the end of calendar year 2008. The supplemental funds for these
military activities and the report requirement were part of a floor amendment that the
Senate agreed to by a vote of 70 to 25 on December 18.153
Earlier that day, the Senate rejected an amendment that would have expressed the
sense of the Senate that the missions of U.S. armed forces in Iraq should change to
more limited ones announced by the President in a September 13, 2007, address to the
nation — counterterrorism operations; training, equipping, and supporting Iraqi
forces; and the necessary mission of force protection, with the goal of completing that

147 (...continued)
148 See 153 CONG. REC. H4796 and H4807 (daily ed. May 10, 2007) for the text and vote on
H.R. 2337, respectively.
149 The House agreed to H.Res. 438 by a vote of 218 to 201. See 153 CONG. REC. H 5730
and 5748 for the text and vote on H.Res. 438, respectively.
150 153 CONG. REC. S15888 (daily ed. December 18, 2007).
151 153 CONG. REC. H16913 (daily ed. December 19, 2007).
152 See CRS Report RL34278, FY2008 Appropriations for Global War on Terror Military
Operations, International Affairs, and Other Purposes, by Stephen Daggett, Coordinator,
for more information.
153 153 CONG. REC. S15927 and S15860-S15861 (daily ed. December 18, 2007) for the text
and vote, respectively.

transition by the end of 2008. The vote was 50 to 45, with 60 votes required for
passage.154 An amendment that would have directed the President to commence
redeploying U.S. armed forces from Iraq within 90 days after enactment and
prohibited funding continued deployments in Iraq after nine months from the
enactment date except for limited missions also did not pass by a vote of 24 to 71.155
Because these amendments did not get 60 votes, they were withdrawn under the terms
of the unanimous consent agreement.
On November 14, 2007, the House by a vote of 218 to 203 and 1 present passed
H.R. 4156, the Orderly and Responsible Iraq Redeployment Appropriations Act,
2008,156 that would have provided $50 billion in supplemental funds for military
activities in Iraq. A provision would have directed the President within 30 days after
enactment to commence an immediate and orderly redeployment of U.S. armed forces
from Iraq with a goal of completing a transition to a limited presence and missions not
later than December 15, 2008. After concluding the transition, the Secretary of
Defense would have been able to deploy or maintain U.S. armed forces in Iraq only
to protect U.S. diplomatic facilities, U.S. armed forces, and American citizens; to
conduct limited training, equipping, and providing logistical support to Iraqi security
forces; and to engage in targeted counterterrorism operations against al-Qaeda, al-
Qaeda infiltrated groups, and other terrorist organizations in Iraq.
Other provisions of House-passed H.R 4156 would have prohibited using funds
for any treatment or technique not authorized in the Army Field Manual or in
contravention of some statutes enacted to implement the U.N. Convention Against
Torture and denied funds to deploy any U.S. armed forces unit to Iraq unless the
President certified it as fully mission capable or waived the certification requirement
for national security reasons. They also would have mandated reports on plans to
achieve the transition of the U.S. mission in Iraq, on performance measures for
military and political stability in Iraq, and on a comprehensive regional stability plan
for the Middle East.
The Senate on November 16, 2007, rejected a motion to close further debate on
a motion to proceed to H.R. 4156 by a vote of 53 to 45, with 60 needed for passage.157
IV. Limiting Deployment of Military Personnel
The Constitution accords Congress with ample authority to regulate the use of
military personnel. Among other things, Congress is designated with the power “To
raise and support Armies;” “To provide and maintain a Navy;” “To make Rules for
the Government and Regulation of the land and naval Forces;” and “To provide for
organizing, arming, and disciplining, the Militia, and for governing such Part of them

154 Id. at S15929 and S15860 for the text and vote, respectively.
155 Id. at S15845 and S15853 for the text and vote, respectively.
156 See 153 CONG. REC. H13917 and 13943 (daily ed. November 14, 2007) for the text and
vote, respectively.
157 153 CONG. REC. S14591 (November 16, 2007).

as may be employed in the Service of the United States.”158 In the 110th Congress,
several legislative proposals have been introduced that would limit the deployment of
certain military personnel to Iraq.159 Some have argued that congressional action
limiting the use of particular troops during wartime would, at least in certain
circumstances, infringe upon the President’s authority as commander in chief to
conduct a military campaign in a manner that he deems appropriate.160
As a matter of historical practice, Congress has occasionally imposed limitations
and other requirements on the deployment of U.S. troops, including during wartime.
These limitations have been effectuated either through the statutory prohibition on the
use of military personnel for a particular purpose, or via the denial of appropriations
in support of a particular operation. The following are examples in which Congress
has limited the President’s ability to use particular military personnel for certain
!1915 — The Army appropriations act restricted Army tours of duty
in the Philippines to two years and tours in the Canal Zone to three
years, unless the servicemember requested otherwise or in cases of161
insurrection or actual or threatened hostilities. The restriction was
amended in 1934 to provide for two-year tours and in both areas as162
well as certain other foreign duty stations. The restriction was
repealed in 1945,163 and replaced with a requirement for the Secretary
of Defense to report twice annually to the Armed Services
committees regarding regulations governing the lengths of tours of
duty for the Army and Air Force outside the continental United
!1933 — The Treasury and Post Office Appropriation Act for
FY1934,164 provided that “Assignments of officers of the Army,
Navy, or Marine Corps to permanent duty in the Philippines, on the

158 U.S. CONST. art. I, § 8.
159 See, e.g., H.R. 1591 (as passed by both Houses and vetoed by the President) , §§ 1902-
1903 (limiting deployment of U.S. troops to Iraq); S.Amdt. 2012 to H.R. 1585 (requiring
minimum periods between deployment for units and members of the armed forces for
Operation Iraqi Freedom and Operation Enduring Freedom); H.R. 1234 (barring funds from
being appropriated for further deployment of U.S. military personnel to Iraq); S. 670
(limiting funds for deployment of additional U.S. troops to Iraq unless Secretary of Defense
certifies that troops are adequately trained and prepared).
160 See Rivkin and Casey, supra note 4 (“Congress cannot, in other words, act as the
president’s puppet master, and so long as currently authorized and appropriated funding
lasts, the president can dispatch additional troops to Iraq with or without Congress’s
161 38 Stat. 1078.
162 P.L. 73-266, 48 Stat. 815, 816.
163 P.L. 80-436, 62 Stat. 70-71.
164 47 Stat. 1516, § 12.

Asiatic Station, or in China, Hawaii, Puerto Rico, or the Panama
Canal Zone shall be for not less than three years. No such officer shall
be transferred to duty in the continental United States before the
expiration of such period unless the health of such officer or the
public interest requires such transfer, and the reason for the transfer
shall be stated in the order directing such transfer.”
!1940 — The Selective Training and Service Act of 1940 provided
that “Persons inducted into the land forces of the United States under
this Act shall not be employed beyond the limits of the Western
Hemisphere except in the Territories and possessions of the United
States, including the Philippine Islands.”165
!1945 — In an act extending the Selective Training and Service Act
until the end of World War II, as determined by the earlier of dates
proclaimed by the President or by concurrent resolution by both
Houses of Congress, provided that no inductee under the age of
nineteen “shall be ordered into actual combat service until after he
has been given at least six months of [appropriate] military
!1948 — The Selective Service Act of 1948 provided that eighteen-
and nineteen-year old enlistees for one-year tours could not be167
assigned to land bases outside the continental United States.
!1951 — The Universal Military Training and Service Act of 1951
required inductees, enlistees, and other persons called to active duty
to receive at least four months’ “full and adequate” training prior to
deployment overseas, and prohibited the expenditure of funds to
transport or maintain a servicemember overseas in violation of the
!1956 — 10 U.S.C. § 6015 prohibited assignment of female
servicemembers to duty on combat aircraft and all vessels of the169
Navy. 10 U.S.C. § 6018 prohibited the assignment of Navy
officers to shore duty not explicitly authorized by law.170
!1985 — The National Defense Authorization Act, 1985 prohibited
the expenditure of funds to support an end strength of U.S. Armed
Forces personnel stationed in NATO countries above a level of

165 P.L. 76-783, § 3(e), 54 Stat. 885, 886.
166 P.L. 79-54, § 2, 59 Stat. 166-67.
167 P.L. 80-759, § 4(h), 62 Stat. 604, 608.
168 P.L. 82-51, § 1(d), 65 Stat. 75, 78.
169 70A Stat. 375-76.
170 70A Stat. 376.

326,414.171 The measure was later modified to reduce the level
further but to provide waiver authority to the President to increase the
force level to up to 311,855, upon notification to Congress, if he
determined the national security interests required exceeding the
!1992 — The National Defense Authorization Act for FY1992
prohibited the use of appropriated funds to support an end strength
level of members of the Armed Forces of the United States assigned
to permanent duty ashore in nations outside the United States at any
level in excess of 60 percent of the end strength level of such
members on September 30, 1992, with exceptions in the event of173
declarations of war or emergency.
The precise scope of Congress’s ability to limit the deployment of U.S. military
forces has not been ruled upon by the courts, and it is therefore unclear whether
legislative measures limiting the use of particular military personnel during wartime
would ever be deemed to be an unconstitutional infringement upon the President’s174
authority as Commander in Chief. Nonetheless, historical practice suggests that, at
least in some circumstances, Congress may oblige the President to comply with
certain requirements on the deployment of particular military personnel, including
during periods of armed conflict.
Analysis and Conclusion
Much of the historical debate over war powers has taken place in the context
where a President has initiated the use of military force with ambiguous or no
congressional authorization, which is not the case here. There is no obvious reason,
however, to suppose that Congress’s constitutional power to limit hostilities depends
on whether the hostilities were initiated with Congress’s express approval at the
outset.175 Likewise, it does not seem consistent to suggest that Congress’s authority
to limit the scope of hostilities may be exercised validly only at the initiation of
hostilities, without opportunity for changing course once troops are engaged.
In modern times, federal courts have been reticent to decide cases involving war
powers on the merits,176 including those involving appropriations measures.177

171 98 P.L. 525, § 1002(c)(1), 98 Stat. 2575.
172 P.L. 101-510, 104 Stat. 1546 (1990).
173 P.L. 102-484, § 1302, 106 Stat. 2545.
174 For example, some have suggested that Congress could not bar the President from using
military force to respond to a foreign invasion. See Sidak, supra note 85, at 51-55.
175 See Tiefer, supra note 4, at 310-12 (outlining possible arguments for differentiating
between authorized and unauthorized wars).
176 See Jonathan L. Entin, The Dog That Rarely Barks: Why the Courts Won’t Resolve the

However, in discussing whether a particular challenge raises non-justiciable political
questions involving matters textually committed to the political branches by the
Constitution,178 courts have generally reiterated the understanding of a shared
allocation of war powers.179 That is, it is generally agreed that Congress cannot “direct
campaigns,” but that Congress can regulate the conduct of hostilities, at least to some
degree, and that Congress can limit military operations without the risk of a
presidential veto by refusing to appropriate funds.
In 1970, in response to a challenge related to the Vietnam conflict, a federal
district court180 expounded on the theme of congressional authority, with particular
reference to Congress’s appropriations power:
The power to commit American military forces under various sets of
circumstances is shared by Congress and the Executive.... The Constitutional
expression of this arrangement was not agreed upon by the Framers without
considerable debate and compromise. A desire to facilitate the independent
functioning of the Executive in foreign affairs and as commander-in-chief was
tempered by a widely shared sentiment opposing the concentration of unchecked
military power in the hands of the president. Thus, while the president was
designated commander-in-chief of the armed forces, Congress was given the
power to declare war. However, it would be shortsighted to view Art. I, § 8, cl.
11 as the only limitation upon the Executive’s military powers.... [I]t is evident
that the Founding Fathers envisioned congressional power to raise and support

176 (...continued)
War Powers Debate, 47 CASE W. RES. L. REV. 1305 (1997)(explaining paucity of court
decisions regarding war powers).
177 See Stith, supra note 9, at 1387 (noting that courts have declined to enforce executive
compliance with appropriations limitations, “particularly in areas where the Executive’s
powers constitutional are significant”).
178 Baker v. Carr, 369 U.S. 186, 211-12 (1962) (noting that justiciability of a foreign affairs
matter is determined “in terms of the history of its management by the political branches,
of its susceptibility to judicial handling in the light of its nature and posture in the specific
case, and of the possible consequences of judicial action”); Powell v. McCormack, 395 U.S.
486, 521 (1969)(making “a textually demonstrable constitutional commitment of the issue
to a coordinate political department” the dominant factor for determining justiciability).
179 Massachusetts v. Laird, 451 F.2d 26, 31-32 (1st Cir. 1971)(“The Congress may without
executive cooperation declare war, thus triggering treaty obligations and domestic
emergency powers. The executive may without Congressional participation repel attack,
perhaps catapulting the country into a major conflict. But beyond these independent powers,
each of which has its own rationale, the Constitutional scheme envisages the joint
participation of the Congress and the executive in determining the scale and duration of
hostilities.”). Another court found justiciable the question of whether military operations
were constitutional, proclaiming the test to be “whether there is any action by the Congress
sufficient to authorize or ratify the military activity in question,” Orlando v. Laird, 443 F.2d
1039 (2d Cir. 1971), cert. denied, 404 U.S. 869 (1971). The same court, however, found a
determination of the effects of Congress’s repeal of the Gulf of Tonkin Resolution to be a
non-justiciable political question. DaCosta v. Laird, 448 F.2d 1368 (2d Cir. 1971), cert.
denied 405 U.S. 979 (1972).
180 Davi v. Laird, 318 F.Supp. 478, 480 (W.D. Va. 1970).

military forces as providing that body with an effective means of controlling
presidential use thereof. Specifically, the House of Representatives ... was viewed
by the Framers as the bulwark against encroachment by the other branches. In
The Federalist No. 58 (Hamilton or Madison), we find:
The House of Representatives cannot only refuse, but they alone can
propose, the supplies requisite for the support of government. They,
in a word, hold the purse — that powerful instrument by which we
behold in the history of the British Constitution, an infant and humble
representation of the people gradually enlarging the sphere of its
activity and importance, and finally reducing, as far as it seems to have
wished, all the overgrown prerogatives of the other branches of the
government. This power over the purse may, in fact, be regarded as
the most complete and effectual weapon with which any constitution
can arm the immediate representatives of the people, for obtaining a
redress of every grievance, and for carrying into effect every just and
salutary measure.
Despite Congress’s well-established authority over appropriations, it has been
argued that the power of the purse cannot be wielded in such a way as to fetter the
discretion of the Commander in Chief.181 Congress’s power of the purse is subject to
the same constitutional restrictions as any other legislative enactment, including those
that affect allocation of powers among the three branches.182 That is, Congress cannot
use appropriations measures to achieve unconstitutional results, although it might, in
some circumstances, achieve a similar result simply by failing to appropriate money.183
The doctrine of “unconstitutional conditions,” most frequently applicable to laws
conditioning benefits for states or private citizens on their relinquishment of
constitutional rights, is said to apply as well to legislation authorizing presidential

181 See Rivkin and Casey, supra note 4; see also Rosen, supra note 15, at 14-18 (outlining
theories but questioning their validity).
182 Marbury v. Madison, 5 U.S. (1 Cr.) 137 (1803)(Congress may not enlarge the original
jurisdiction of the Supreme Court); United States v. Klein, 80 U.S. (8 Wall.) 128 (1872)
(Congress may not nullify effects of a presidential pardon or prescribe a rule of decision in
a court case ); United States v. Lovett, 328 U.S. 303 (1946)(Congress may not create a bill
of attainder by means of an appropriations measure denying money to pay salaries of named
officials); Reid v. Covert, 354 U.S. 1 (1957)(Congress may not displace judicial role by
subjecting civilians to military courts-martial during time of peace); INS v. Chadha, 462
U.S. 919 (1983)(Congress may not invalidate executive decisions by one-house “legislative
183 For example, in United States v. Klein, the Supreme Court invalidated a statute that
prohibited the Court of Claims from receiving evidence of a presidential pardon in support
of a claim against the government, finding the law interfered with the judicial power and the
President’s pardon power. However, the Court upheld a statute that prohibited payment of
the same claims out of the Treasury. Hart v. United States, 118 U.S. 62 (1886). Congress’s
failure to appropriate funds for constitutionally mandated activities might itself be
unconstitutional, but neither the courts nor the President would have the authority in such
a case to mandate the expenditure of funds from the Treasury for the activity. See Stith,
supra note 9, at 1351.

action.184 This notion, however, adds little to the analysis. Congress has ample
constitutional authority to enact legislation that restricts the scope of military
operations. If Congress can enact a limitation on the conduct of military operations
directly, it can do so through appropriations. The larger question remains whether the
limitation enacted amounts to an unconstitutional usurpation of the actual conduct of
Some commentators agree that Congress has the authority to cut off funds for
military operations entirely, but assert that a partial cut-off or limitation on the use of
funds would amount to an unconstitutional condition by interfering with the
President’s authority to conduct battlefield operations.185 There has been some
suggestion in the past that the President’s responsibility to provide for troops in the
field justifies further deployments without prior authorization from Congress,186 with
some arguing that the President has an independent implied spending power to carry
out these responsibilities.187 These arguments do not easily square with Congress’s
established prerogative to limit the scope of wars through its war powers, and do not
conform with Congress’s absolute authority to appropriate funds.
Congress has frequently, although not invariably, acceded to presidential
initiatives involving the use of military force. While a history of congressional
acquiescence may create a gloss on the Constitutional allocation of powers,188 such a
gloss will not necessarily withstand an express statutory mandate to the contrary. It
does not appear that Congress has developed a sufficiently consistent or lengthy
historical practice to have abandoned either its war power or its authority over
appropriations. The executive branch has objected to legislative proposals it views
as intrusive into presidential power, including conditions found in appropriations
measures.189 And it remains possible to construe the function of “conducting military
operations” broadly to find impermissible congressional interference in even the most
mundane statutes regulating the armed forces. To date, however, no court has
invalidated a statute passed by Congress on the basis that it impinges the

184 See, e.g., John Norton Moore, Do We Have an Imperial Congress?, 43 U. MIAMI L. REV.
139, 145 & n25 (1988)(“Congress cannot condition funding or authority for the President
to act in the foreign affairs arena upon the President’s surrender of his own constitutionally
grounded duties and privileges.”).
185 See Rivkin and Casey, supra note4 (“Under our constitutional system ... the power to cut
off funding does not imply the authority to effect lesser restrictions, such as establishing
benchmarks or other conditions on the president’s direction of the war.”).
186 See Tiefer, supra note4, at 314-15 (describing the Nixon Administration’s legal rationale
for expanding the Vietnam conflict into Cambodia and Laos).
187 See Rosen, supra note 15, at 14-18 (summarizing theories).
188 See Dames & Moore v. Regan, 453 U.S. 654 (1981) (executive agreements settling
claims with Iran subsequent to the 1979-1981 hostage crisis held to be within President’s
power, in part because of unbroken historical practice of Congress acceding to Presidential
settlement of foreign claims by executive agreement).
189 See H. Jefferson Powell, The President’s Authority over Foreign Affairs: An Executive
Branch Perspective, 67 GEO. WASH. L. REV. 527, 565-75 (1999)(surveying historical
examples of disagreements involving commander-in-chief powers).

constitutional authority of the Commander in Chief,190 whether directly or indirectly
through appropriations. In contrast, presidential assertions of authority based on the
Commander-in-Chief Clause, in excess of or contrary to congressional authority, have
been struck down by the courts.191
On the other hand, Presidents have sometimes deemed such limitations to be
unconstitutional or merely precatory, and have at times not given them the force of
law.192 In other words, Administrations have relied on an argument based on the
doctrine of “unconstitutional conditions” to justify the President’s authority to reject
a limitation on national security spending while continuing to spend the funds.193
Whether or not the President is constitutionally entitled to spend funds without

190 In one case, the Supreme Court agreed with the Court of Claims that a law passed
pursuant to Congress’s authority to regulate the armed forces could not restrict a President’s
commander-in-chief powers, and interpreted the statute accordingly. In Swaim v. United
States, 165 U.S. 553 (1897), an officer challenged his court-martial on the grounds that it
had been ordered by the President himself, where contemporary statute provided for the
convening of courts-martial by certain commanders. The Court held the President had the
inherent authority to convene courts-martial, citing with approval the legislative record
describing the Articles of War as “not [intended] to exclude the inherent power residing in
the president of the United States under the Constitution.” Id. at 557. The Senate
Committee explained further
In this state of the history of legislation and practice, and in consideration of the
nature of the office of commander in chief of the armies of the United States, the
committee is of opinion that the acts of congress which have authorized the
constitution of general courts-martial by an officer commanding an army,
department, etc., are, instead of being restrictive of the power of the commander
in chief, separate acts of legislation, and merely provide for the constitution of
general courts-martial by officers subordinate to the commander in chief, and
who, without such legislation, would not possess that power, and that they do not
in any manner control or restrain the commander in chief of the army from
exercising the power which the committee think, in the absence of legislation
expressly prohibitive, resides in him from the very nature of his office, and
which, as has been stated, has always been exercised.
Id. at 557-58. Even recognizing the inherent power of the president to convene courts-
martial, however, the Court proceeded to explore whether the Articles of War had been
properly applied. The case appears to demonstrate that Congress may regulate the exercise
of inherent commander-in-chief powers as long as it does not extinguish them completely.
191 See Little v. Barreme, 6 U.S. (2 Cr.) 170 (1804); Ex parte Milligan, 71 U.S. (4 Wall.) 2
(1866); Youngstown Sheet and Tube Co. v. Sawyer, 343 U.S. 579 (1952); Hamdan v.
Rumsfeld, 126 S.Ct. 2749 (2006).
192 See Powell, supra note 181, at 552-53.
193 See Tiefer, supra note 4, at 312 (providing examples of the “say no, but keep the dough”
approach for circumventing appropriations limitations viewed as unconstitutional); Powell,
supra note 181, at 553 (describing executive branch formula for determining the effect on
an appropriation of an invalid condition to be based on “whether Congress’s main purpose
in enacting the appropriation was to create a means of forcing the congressional policy
embodied in the condition on the President”).

adhering to relevant legislative conditions appears to be an issue unlikely to be
resolved by the courts.
In sum, it seems that under the constitutional allocation of powers Congress has
the prerogative of placing a legally binding condition on the use of appropriations to
regulate or end the deployment of U.S. armed forces to Iraq. Such a prohibition seems
directly related to the allocation of resources at the President’s disposal, and would
therefore not appear to interfere impermissibly with the President’s ability to exercise
command and control over the U.S. armed forces. Although not beyond question,
such a prohibition would arguably survive challenge as an incident both of Congress’s
war power and of its power over appropriations.