How Long Can the Defense Department Finance FY2008 Operations in Advance of Supplemental Appropriations?
How Long Can the Defense Department
Finance FY2008 Operations in Advance of
Updated April 30, 2008
Stephen Daggett and Pat Towell
Specialists in Defense Policy and Budgets
Foreign Affairs, Defense, and Trade Division
How Long Can the Defense Department Finance
FY2008 Operations in Advance of Supplemental
On December 18, 2007, the Senate, and on December 19, the House, approved
a consolidated FY2008 appropriations bill, H.R. 2764, that includes $70 billion in
emergency supplemental appropriations for the Department of Defense for military
operations in Iraq, Afghanistan and elsewhere. The President signed the bill into law
on December 26. Congress’s agreement to provide $70 billion for overseas military
operations resolved a dispute over war funding that had led the Defense Department
to announce plans to shut down all but essential Army and Marine Corps operations
early in 2008. In the absence of supplemental appropriations, officials warned that
money for Army operations would run out by the end of February and for the Marine
Corps in March, even after a transfer of $4.1 billion to the Army. On November 15,
2007, Secretary of Defense Gates said that the Defense Department would "cease
operations at all Army bases by mid-February next year," which would result in
furloughs of 100,000 civilian and another 100,000 contractor personnel.
The consolidated appropriations bill averted the need for such steps. It provided
$35.2 billion for Army and $4.0 billion for Marine Corp operation and maintenance
accounts. These amounts are in addition to $27.4 billion for the Army and $4.8
billion for the Marine Corps in the regular FY2008 Defense Appropriations Act
(P.L. 110-116). The supplemental funding, added to regular appropriations, provided
enough money to sustain Army operations until the end of June or early July, 2008,
and Marine Corp operations until the end of August at planned rates of obligation.
While Congress’s agreement to provide funds resolves the debate for the
present, it did not settle the underlying controversy. A recurring issue for Congress
has been how much flexibility the Defense Department has to delay, if not to avoid
entirely, shutting down operations when Congress does not provide full-year defense
appropriations. In the absence of supplemental appropriations, the Defense
Department relied on funds in the regular FY2008 Defense Appropriations Act to
finance both day-to-day peacetime activities and war-related operations abroad. CRS
calculated that these funds would be exhausted by February for the Army and by
early April for the Marine Corps, which is about what the Defense Department
projected. DOD’s proposed transfer of $4.1 billion to the Army would have extend
its operations for another two to three weeks.
Without supplemental appropriations, the Defense Department could have
extended operations for about another month by transferring limited additional
amounts to the Army and Marine Corps and by slowing down spending through
measures such as those the Army began to implement in April 2007. Such measures
would reduce remaining financial flexibility and might disrupt day-to-day operations.
The Defense Department might have been able to sustain operations longer by
invoking the Feed and Forage Act or by using novel, unprecedented measures, such
as assigning the Navy and Air Force to pay costs of Army support operations abroad.
Such measures might weaken congressional war powers and erode congressional
controls on the use of funds. This report will not be updated.
Most Recent Developments..........................................1
How Long Regular FY2008 Defense Appropriations Will Last ..............2
Alternatives for Extending Operations Longer...........................4
Service Objections to Budget Maneuvers ..........................4
Transfer Additional Funds to the Army and Marine Corps..............5
Slow the Pace of Army and Marine Corps Obligations.................7
Invoke the Feed and Forage Act..................................8
Use Title 10 Authorities to Assign Support Operations to Other Services.10
Summary of Measures to Extend Operations.......................11
Appendix: Availability of Funding with Baseline Defense Appropriations and
with $70 billion Unrestricted Bridge Fund.........................14
A word about assumed obligation rates........................15
List of Tables
Table 1. Army and Marine Corps O&M Funding with Baseline FY2008
Defense Appropriations and Proposed Transfers.....................4
Table 2. Uses of the Feed and Forage Act Since FY1960..................9
Table 3: Options for Extending Army Operations in Advance of FY2008
Table A1. Army and Marine Corps O&M Funding with Baseline FY2008
Defense Appropriations and Proposed Transfers....................14
Table A2. Army and Marine Corps O&M Funding with Baseline FY2008
Defense Appropriations and FY2008 Omnibus Appropriations with
$70 Billion in Supplemental Funds...............................15
How Long Can the Defense Department
Finance FY2008 Operations in Advance of
Most Recent Developments
On December 19 the House, and on December 18, the Senate, approved an
omnibus FY2008 appropriations bill, H.R. 2764, providing $485 billion in regular
FY2008 appropriations for most agencies of the government. The President signed
the bill into law, P.L. 110-161, on December 26. The bill includes a Senate
amendment to provide $70 billion in emergency supplemental appropriations for the
Department of Defense for military operations in Iraq, Afghanistan and elsewhere.
The Defense Department now projects that the funding provided in the bill will
sustain Army military personnel accounts until about the middle of June and Army
operation and maintenance accounts until about the end of June or early July at
planned rates of obligation. Funding for the Marine Corps and the other services will
last somewhat longer.
Until the very end of Congress’s 2007 session, action on supplemental funding
appeared to be at an impasse. On November 14, the House approved a bill, H.R.
4156, to provide $50 billion in supplemental appropriations as a temporary “bridge
fund” to cover war costs for part of the year, with a requirement that the President
begin withdrawing troops from Iraq. The Senate rejected cloture on a motion to
bring the bill up for debate, however, and the White House threatened a veto.
On December 17, in place of the $50 billion bridge fund, the House approved
a measure providing $31 billion in emergency FY2008 supplemental appropriations
for Operation Enduring Freedom as part of FY2008 omnibus appropriations, H.R.
2764. On December 18, the Senate took up the bill and, by a vote of 70-25, approved
an amendment by Senator McConnell to replace the House-approved $31 billion
measure with $70 billion in supplemental appropriations without limits on where the
money could be spent. The House approved that measure on December 19, clearing
it for the President.
Between mid-November, when Congress began actively considering
supplemental funding for the war, and the end of the year, a major element in the
debate was how long the Army and Marine Corps could continue to carry on
operations without additional supplemental funding.
How Long Regular FY2008 Defense
Appropriations Will Last
Until supplemental appropriations for FY2008 were enacted, the Department of
Defense was financing both day-to-day peacetime operations of U.S. military forces
and overseas military operations in Iraq and elsewhere with funds appropriated in the
regular FY2008 Defense Appropriations Act, P.L. 110-116, which was signed into
law on November 13. The measure provided $460 billion for the Defense
Department to cover the costs of baseline, non-war-related programs in FY2008. The
Administration also requested a total of $189.3 billion in FY2008 supplemental
appropriations for the Department of Defense to cover war-related costs. By mid-
November of 2007, Congress had approved $16.8 billion of that amount, all for Mine
Resistant Ambush Protected (MRAP) vehicles.1 Action on the remainder, however,
was held up by the ongoing congressional debate over Iraq policy.
With enactment of supplemental appropriations in doubt, the critical issue
became how soon the Defense Department would have to rein in operations before
it ran out of money. At a press conference on November 15, Secretary of Defense
Gates warned that the Army would be out of money by the beginning of February,
and the Marine Corps some time in March, and he announced that preliminary steps
needed to shut down Army operations, and not merely to slow down spending, would
begin almost immediately. “The least undesirable” option, he said, would be to
“cease operations at all Army bases by mid-February next year.” This would result,
he said, in furloughs of 100,000 civilian and another 100,000 contractor personnel.
Because some layoffs require 60 days advance notice, he said, the Pentagon would2
have to begin sending notifications to personnel in December.
In the same press conference, Secretary Gates said that the Defense Department
would take steps to extend Army and Marine Corps funding by “reprogramming” or3
“transferring” funds. On November 20, the Defense Department announced that it
1 The First Continuing Resolution, H.J.Res. 52, P.L. 110-92, provided $5.2 billion for
MRAPs and the defense appropriations bill, H.R. 3222, P.L. 110-116, provided $11.6
2 Department of Defense, "DoD News Briefing with Secretary of Defense Gates and
Chairman of the Joint Chiefs of Staff Adm. Mullen from the Pentagon Briefing Room,
Arlington, Va.," November 15, 2007, at
3 In general a “transfer” of funds is a shift of money from one appropriations account to
another. Because appropriations laws provide specific amounts for each account, a shift of
funds is permissible only to the extent Congress allows a transfer in statutory language. As
part of each appropriations bill, Congress usually specifies that a limited amount may be
transferred, subject to certain conditions. Section 8005 of the FY2008 Defense
Appropriations Act permits DOD to transfer up to $3.7 billion between accounts. This is
referred to as “General Transfer Authority” or “GTA.” In most agencies the term
“reprogramming” refers to shifts of funds within accounts, rather than a “transfer” between
was requesting approval from the congressional defense committees to transfer
$4.5 billion of funds from other accounts to the Army and to the Joint IED Defeat
Organization. The transfers, officials said, would extend Army operations for two
or three weeks.4 Subsequently, the Army circulated estimates that funding from the
regular Defense Appropriations Act plus planned transfers would run out on
CRS calculations of the length of time the Army and Marine Corps could
continue to operate only with funds in the regular FY2008 defense appropriations bill
and without slowing down operations were in line with Defense Department
estimates. The determining factor in this calculation is how long money in Army and
Marine Corps Operation and Maintenance (O&M) accounts would last at projected
obligation rates. The O&M accounts finance a broad range of activities, including
recruitment, training, transportation, clothing, subsistence, fuel, facility operation and
repair, and equipment maintenance. Funding for Army and Marine Corps O&M
supports both peacetime activities and war-related operations.
For the first few months of the fiscal year, the Army appeared to be planning
obligations of about $6.5 billion per month and the Marine Corps of about $800
million per month. The FY2008 Defense Appropriations Act, P.L. 110-116,
provided $27.4 billion in O&M for the Army and $4.8 billion for the Marine Corps.
At planned monthly obligation rates, therefore, the Army could operate with baseline
appropriations for about four months of the fiscal year (which began on October 1,
2007) or until the beginning of February, and the Marine Corps could operate for
about six months, or until the end of March or the beginning of April, which is
generally consistent with Defense Department estimates. The requested transfer of
$4.1 billion to the Army, would extend the time the Army can operate for another
two to three weeks, or until the end of February. Table 1 shows the calculations.
accounts. The Defense Department, however, uses the term “reprogramming” to refer to all
shifts of funds, including those that involve a transfer between accounts. All transfers, along
with reprogramming actions over certain threshold amounts, also require advance approval
by the four congressional defense committees.
4 Department of Defense, “Reprogramming Action – Prior Approval,” Serial No. FY 08-02
PA, November 20, 2007. The proposal decreases Navy and Air Force personnel accounts
by $1.85 billion each, for a total of $3.7 billion, decreases cash balances in the Army
Working Capital Fund by $800 million, increases Army Operation and Maintenance funding
by $4,055.6 million, and increases the Joint Improvised Explosive Device Defeat Fund by
5 Office of the Chief of Legislative Liaison, Office of the Secretary of the Army,
“Information for Members of Congress: Army Prepares Instructions for Funding Shortfall,”
November 28, 2007, and memo from Vice Chief of Staff of the Army General Richard A.
Cody, “Contingency Budget Planning,” November 26, 2007.
Table 1. Army and Marine Corps O&M Funding with
Baseline FY2008 Defense Appropriations and
(amounts in millions of dollars)
(1) (2) (3) (4) (5) (6)
B udg et FY2008 Av erage M o nt hs Av a ila ble
Appro pri F unding Per Av a ila ble Wo uld
a-tionsTransfers (1) + (2)Month (3) ÷ (4)Run Out
Army Operation & $ 27,362 $ 4,056 $ 31,418 $ 6,500 4.9 End-
Marine Corps Operation $ 4,792 $ - $ 4,792 $ 790 6.1 Beginning-
Source: CRS calculations based on amounts in the FY2008 Defense Appropriations Act, P.L. 110-116
and obligations rates based on Army estimates.
Alternatives for Extending Operations Longer
In the absence of FY2008 supplemental appropriations, the Defense Department
would have been be able to extend Army and Marine Corps operations for an
additional month or so, either by transferring additional amounts to O&M accounts
or by slowing the pace at which the services are obligating funds. The Defense
Department could also extend operations further by invoking the Feed and Forage
Act or by using provisions of standing law that may allow other services to pay for
Army and Marine Corps operations.
Service Objections to Budget Maneuvers
In the Army’s official view, all of these kinds of budget maneuvers are
detrimental. In a presentation at the Brookings Institution on December 4, Army
Chief of Staff George Casey complained that any measures that would make the flow
of money unstable or uncertain were disruptive to the Army and discouraging to
In general, as Chief of Staff of the Army, not having predictable, timely funding
makes it harder for me to do my job: to organize, train and equip the Army.
Every time you put something off or delay it or take some measures to get
another week's worth of funding for the operations and maintenance account, it
has second and third order effects that ricochet all through the organization, that
you don't find the results for two or three months, and it just makes it harder.
The second thing is I think what's going on right now sends a terrible signal to
soldiers and families. We have nine brigades that are redeploying from Iraq and
Afghanistan right now after being gone for 15 months. They started in
September. They'll come in through January. The notion that people are even
discussing closing down or warm-basing their installations just minimum
essential tasks at a time when they're coming home from being gone for 156
months is very difficult for them.
These objections are not new. On the contrary, the Army and the other military
services have consistently been critical of measures to manipulate budgets to stretch
out funding, including Administration steps to use money from later in the year to
finance operations at the start of the year, a practice known as "cash flowing."
Disputes over the use of cash flowing for the Iraq war began as early as January,
2004. At that time, the Administration decided not to request FY2005 supplemental
appropriations until after the start of calendar year 2005, and instead to rely on cash
flowing to sustain operations until well into the spring. When senior service leaders
expressed concern about that decision in congressional hearings, DOD Comptroller
Dov Zakheim called a press conference to defend the practice.7 Subsequently
Congress initiated the practice of providing part-of-the year bridge funding when it
added $25 billion in unrequested funds for war related expenses to the FY2005
Defense Appropriations Act. Later, Congress provided an unrequested bridge fund
of $50 billion in FY2006. The Administration only began to request appropriations
for a bridge fund in the FY2007 budget.
Alternatives for extending Army and Marine Corps operations include –
!Transfer limited additional amounts that may be available from cash
balances in working capital funds;
!Slow the pace of Army and Marine Corps obligations of funds, in
part by taking steps the Army had earlier considered in April 2007
and in part by delaying depot maintenance funding;
!Invoke the Feed and Forage Act, which permits obligations of funds
in advance of appropriations, and for which there are extensive
precedents in the past 40 years; and finally,
!Consider using standing authorities for which there do not appear to
be precedents to limit Army and Marine Corps costs, such as the
authority in 10 USC 165 to assign support operations to other
The following discussion reviews the potential amount of time that might be gained,
and the possible costs, of each of these measures.
Transfer Additional Funds to the Army and Marine Corps
As Secretary Gates announced on November 15, the Defense Department
planned, subject to approval by the congressional defense committees, to transfer
6 General George William Casey, Jr., Chief of Staff of the Army, "Maintaining Quality in
the Force: A Briefing by General George W. Casey, Jr.," Brookings Institution Transcript,
December 4, 2007, p. 33, at [http://www.brookings.edu/~/media/Files/events
7 See “Department of Defense Special Briefing: Purpose of Budget Supplementals,”
February 11, 2004, at [http://www.defenselink.mil/transcripts/transcript.
$3.7 billion of funds from Air Force and Navy personnel accounts to the Army and
to JIEDDO and to shift $800 million of cash balances from working capital funds to
the Army. The $3.7 billion transfer from the Air Force and the Navy would exhaust
the total amount of General Transfer Authority provided by Section 8005 of the
FY2008 Defense Appropriations Act. Additional funds were available for transfer,
however, in cash balances of working capital funds, and the Defense Department
might have extended operations longer by using these amounts.
The transfer of excess cash balances in working capital funds is permitted by
Section 8008 of the FY2008 Defense Appropriations Act.8 Working capital funds
are business-like activities of the Defense Department that are funded primarily
through revenues from sales to the military services. Some working capital fund
activities maintain inventories of products that they sell to military units. Others
provide industrial services, such as depot maintenance of equipment. The military
services use appropriated funds, mostly in the operation and maintenance accounts,
to make the purchases. Section 8008 allows the funds to maintain sufficient cash
balances to meet projected requirements for disbursements. Excess cash balances
may then be available for transfer to other accounts, including service operation and
Amounts of excess cash balances vary from fund to fund and from year to year.
As of the beginning of December, 2007, the Defense Department had tapped FY2008
excess cash balances twice. The FY2008 Defense Appropriations Act used $628
million to offset Army, Navy, Air Force, and Defense-Wide operation and
maintenance accounts. And, as noted, on November 20 the Defense Department
proposed using $800 million for the Army. So about $1.4 billion had been used.
Pros and Cons. The Government Accountability Office (GAO) reported to
congressional defense committees that DOD had as much as $3.5 billion in excess
cash balances in the working capital funds at the start of FY2008.9 With $1.4 billion
having been used, another $2.1 billion appeared to be available. By tapping all of the
remaining funds to finance Army and Marine Corps O&M accounts, the Defense
Department could have extend operations for a week or two. This would have
further reduced DOD’s remaining financial flexibility to respond to future
developments, though perhaps only temporarily. In its November 20 transfer request,
DOD asked Congress to restore the $3.7 billion in transfers to the Air Force and
Navy, and Congress has, in the past, agreed to forgive amounts transferred because
of delays in making supplemental appropriations.10 While waiting for Congress to
act, however, the Defense Department would have little, if any, remaining transfer
8 Like Section 8005, Section 8008 is a recurring provision in annual defense appropriations
9 CRS calculation based on DOD data provided by GAO analyst by e-mail, November 30,
10 The Defense Department also opposed House and Senate use of excess cash balances in
the FY2008 defense appropriations bills. See Department of Defense, “Budget Appeal,
FY2008 Defense Appropriations Bill,” #RF-2, October 15, 2007. The appropriations
conference agreement rejected the appeal.
Slow the Pace of Army and Marine Corps Obligations
To the extent that Army obligations of O&M funds could be reduced below
about $6.5 billion per month, and Marine Corps obligations below $750 million, the
services could operate longer with available funds. In April, 2007, when Congress
was considering FY2007 supplemental funding, the Army planned a series of
increasingly restrictive limits on activities to be implemented if supplemental
appropriations were further delayed.11 The Army projected that these measures could
reduce obligations by as much as $3.6 billion over three months out of FY2007
obligations of about $6 billion per month.12 The Army and Marine Corps might also
have been able to defer some other funding by, for example, delaying orders for
depot maintenance of equipment, for which the Army planned average obligations
of about $400 million per month in FY2008 – i.e., about $1.6 billion over the first
four months of the year or $2.0 billion over five months.
Pros and Cons. If implemented over four months, slowing operations and
delaying depot maintenance orders might have reduce obligations by as much as $5
billion ($3.6 billion from measures like those identified last April, plus $1.6 billion
from deferring depot maintenance), though less if they were pursued selectively.
This would have been enough for an additional three weeks or so of operations.
Some of these measures might have been less disruptive to the day-to-day operations
of the force than others, particularly if undertaken on only a temporary basis. The
Army reportedly had a depot maintenance backlog of about 7 ½ months, so there
might have been some room to defer new orders without disrupting depot work
flows.13 It is uncertain how reduced obligations of funds would affect military
readiness or how disruptive cuts would be to facilities management, civilian and
contractor employment, materiel inventories, equipment orders to industry, DOD
travel, or depot maintenance workloads. Congress may wish to consider these
matters more fully through hearings and other means.
Defense Department officials said that cuts such as those planned last spring
were not sufficient in the present circumstances because of greater uncertainty about
supplemental funding. In his November 20 press briefing, DOD spokesman Geoff
Morrell insisted that the issue was not simply how to free up money to extend
11 Army Memorandum, “Operation and Maintenance, Army Spending Restrictions Plan for
FY07,” April 14, 2007. The text of the Memorandum is available at
[http://www.comw.org/warreport/fulltext/0704armyspending.pdf]. See also, Army Press
Release, “Funding Needs Prompt Army Spending Constraints,” April 16, 2007, at
[ h t t p : / / www.a r my.mi l / -n e w s r e l e a s e s / 2007/04/16/2698-funding-n eeds-prompt-army-
spending-constraints/]. The Army Memorandum is also discussed in 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. See subsection entitled “Financing Army
Operations Until Passage of the Supplemental.”
12 Army Budget Office, PowerPoint Slides entitled “Operation and Maintenance, Army
Spending Restrictions Will Extend Fund Availability” and “OMA FY07 Execution,” April
13 E-mail communication from GAO analyst, November 30, 2007.
operations, but, rather, what steps the Defense Department would have to take to
shut down operations almost completely in the absence of funding. “All that will
happen on the [military] bases,” he said, “is that the most basic security and safety
personnel – fire, police, and so forth – will be operating. Day care centers, libraries,
all of the additional benefits that are there for families living on the base will cease
to operate, because we will not have the funds to keep them going.” The steps taken
in April, 2007, he explained, were designed to extend operations on the assumption
that Congress would provide additional appropriations quite soon. This time,
however, defense officials insisted that the challenge was not how to cope with a
delay in funding, but, rather, how to implement a shut off of funds.14
Invoke the Feed and Forage Act
The Feed and Forage Act, 41 USC 11,15 is a long-standing law, with antecedents
from well before the Civil War,16 that gives the Defense Department authority to
finance some costs of military operations in advance of congressional appropriations.
In the past 40 years, the act has been used periodically to pay for unplanned military
contingencies and to sustain military operations when supplemental appropriations
have been delayed.
The Feed and Forage Act permits the Department of Defense to obligate funds
in advance of appropriations for “clothing, subsistence, forage, fuel, quarters,
transportation, or medical and hospital supplies.” Obligations may not, however,
“exceed the necessities of the current year.” These categories are broad enough to
encompass most activities financed in operation and maintenance accounts. The
“transportation” category, for example, has been interpreted to allow operation of
weapons engaged in combat, including aircraft carrying out bombing missions in
Southeast Asia, and funding of repairs of equipment, including purchases of spare
parts.17 The law does not, however, permit pay of uniformed personnel or purchases
of munitions or other weapons.
When queried about the use of the Feed and Forage Act, Pentagon spokesperson
Geoff Morrell all but dismissed its potential use except in extraordinary
14 Department of Defense, “DoD News Briefing with Press Secretary Geoff Morrell from
the Pentagon,” November 20, 2007, at
15 It is also frequently cited as Revised Statute 3732. The “Feed and Forage Act” as codified
in 41 USC 11 is an express exception to the “Adequacy of Appropriations Act,” which states
that “No contract or purchase on behalf of the United States shall be made, unless the same
is authorized by law or is under an appropriation adequate to its fulfillment.”
16 Louis Fisher, Presidential Spending Power (Princeton: Princeton University Press, 1985),
pp. 238-247. The author cites one precedent as early as 1799 – see p. 240.
17 CRS has prepared an extensive compilation of background material, much of it provided,
by the Department of Defense Comptroller, on uses of the Feed and Forage Act since 1960,
on its history, and on associated issues, including war powers. Congressional staff and
Members of Congress should contact Stephen Daggett at CRS for a copy.
we have extraordinary measures that can be taken in the eventuality that we find
ourselves in a situation where we have no money – and no ability to move funds
and we find ourselves with our men and women in uniform in the theater
potentially unfunded. But all that we would be able to do in those circumstances
is provide – is basically provide for their survival. It’s a “Feed and Forage”
provision. It dates back before the Civil War. And it will allow us, really, just
to provide for their feed and that’s it. So it’s an extraordinarily desperate18
situation. We are not there yet. We are not talking about invoking that yet.
The Feed and Forage Act has been used in the past in circumstances quite
similar to those facing the Defense Department in FY2008. It has been used, for
instance, to sustain major military operations, including combat operations in
Southeast Asia in the 1960s and transportation of personnel to the Persian Gulf
during Operation Desert Shield/Desert Storm, when appropriated funds were not
sufficient. Table 2 summarizes uses of the Feed and Forage Act since 1960. As the
table shows, when amounts are adjusted to today’s prices, the Feed and Forage Act
has been invoked to finance quite substantial obligations of funds – in FY1968, for
example, during the Vietnam War, when, in FY2008 prices, $7.4 billion was used
and in FY1991, for Operation Desert Shield/Desert Storm, when $2.6 billion was
Table 2. Uses of the Feed and Forage Act Since FY1960
(amounts in millions of current year and constant FY2008 dollars)
Current Co nst a nt
Fiscal Yea r FY2008
Yea r Do lla rs Do lla rs
1968Southeast Asia: Late enactment of supplementalappropriations1,1367,427
1969Southeast Asia: Late enactment of supplementalappropriations423
1978Escalating foreign currency rates: Late enactmentof supplemental appropriations80252
1980Middle East oil crisis6641,719
1994 Haiti 126 185
1996Saudi Arabia Khobar Towers*– –
2001Terrorist Attacks of 9/11/01*– –
Source: Current year dollars figures from Department of Defense Comptroller, constant dollar totals
calculated by CRS using deflators from Department of Defense Comptroller.
* The act was invoked in 1996 following the Khobar Towers bombing in Saudi Arabia and in 2001
just after the attacks of 9/11, but no funds were used.
18 Department of Defense, “DoD News Briefing with Press Secretary Geoff Morrell from
the Pentagon,” November 20, 2007, at
Pros and Cons. The Feed and Forage Act gives the Department of Defense
considerable flexibility to marshal funding for military operations in the event of
unexpected developments. The potential use of substantial amounts to carry on
combat operations, particularly if Congress has denied or refused to act on funding
for a war, may be of concern to Congress because of its implications for
congressional war powers, including the power of the purse. During the Vietnam
war, use of the Feed and Forage Act ignited a vigorous debate over war powers
issues. In 1973 Senators Mathias and Church sponsored hearings on the law, and in
1974 and 1975, Senator Abourezk proposed repealing the act because, he argued, it
eroded congressional authority.19 Use of the Feed and Forage Act under current
circumstances may warrant similar concerns. Unless Congress were to enact
language restricting funding for Iraq “in this or any other act,” use of funding under
the Feed and Forage Act would not appear to be subject to any limitations.
The act has other has limitations as well. Significantly, while the act permits the
Defense Department to obligate funds (i.e., sign contracts or hire civilian personnel),
in DOD’s interpretation, it does not permit actual expenditures (i.e., outlays) of funds
without congressional appropriations.20 This would require contractors to agree,
likely at some cost to the government, to contracts that might defer actual payments.
In effect, the law allows the Defense Department to obligate Congress to provide
what are known as “deficiency appropriations,” which were quite frequently enacted
up until the 1950s, but have not been used often since then. The enactment of
deficiency appropriations may, however, be delayed.
Use Title 10 Authorities to Assign Support Operations to
While the use of the Feed and Forage Act has an extensive history, there are
some other authorities in standing law that might be used to extend Army and Marine
Corps operations, but for which CRS is not aware of any precedents. One such
provision is 10 USC 165. Title 10 U.S. Code is the standing law that establishes the
Department of Defense and includes most of the statutory language that governs its
organization and operations. Section 165(c) specifically permits the Secretary of
Defense to assign responsibility to other components of the Defense Department for
administration and support of forces assigned to combatant commands (including the
Central Command responsible for operations in Iraq and Afghanistan). The term
“components” includes the active duty element of each military service, each of the
reserve elements, and defense agencies. The full text of the provision reads –
19 John P. MacKenzie, “Pentagon Use of 1861 Law Scored,” Washington Post, September
S17367-17369. Remarks of Senator Abourezk, Congressional Record, June 3, 1974, pp.
S9417-S9422. Congressional concern about the act was piqued particularly when
then-Secretary of Defense Melvin Laird asserted in congressional testimony that the Defense
Department could use authority of the "deficiency authorization legislation," meaning the
Feed and Forage Act, to continue military operations in Southeast Asia in the absence of
appropriations for the war; see MacKenzie article.
20 See, Department of Defense Comptroller, “Budget Execution Flexibility, FY2007,” at
[http://www.defenselink.mil/comptroller/execution/Final_Budget_Execution.pdf], p. 19.
(c) Assignment of Responsibility to Other Components of DOD.— After
consultation with the Secretaries of the military departments, the Secretary of
Defense may assign the responsibility (or any part of the responsibility) for the
administration and support of forces assigned to the combatant commands to
other components of the Department of Defense (including Defense Agencies
and combatant commands). A component assigned such a responsibility shall
discharge that responsibility subject to the authority, direction, and control of the
Secretary of Defense and subject to the authority of commanders of the
combatant commands under section 164 (c) of this title.
Pros and Cons. On its face, 10 USC 165 (c) would appear to allow the
Defense Department considerable latitude to assign management and budget
responsibility to the Air Force and Navy for such support activities as food and
housing services handled by civilian contractors under what are know as LOGCAP
contracts, for which $6.2 billion is requested in FY2008; contracts for linguists, for
which $1.1 billion is requested; subsistence for DOD civilians and contractors, for
which $675 million is requested; or other war support activities. The Secretary also
has authority to detail civilian personnel from one service to another as part of his
general responsibility for managing the Department, so Army personnel currently
managing these contracts could be detailed to another service to ensure continuity.21
Since Air Force and Navy O&M budgets were less limited than Army and
Marine Corps budgets, this would further extend the amount of time the Army and
Marine Corps could operate without FY2008 supplemental funding. The FY2008
Defense Appropriations Act provided $32.2 billion for Air Force O&M and $33.1
billion for Navy O&M. If the Air Force and Navy were each assigned responsibility
for $5 billion of activities currently handled by the Army, it would extend Army
operations by a month-and-a-half, while funding for Air Force and Navy operations
would be reduced by about two months.
Since the use of this provision is unprecedented, it is not apparent whether a
shift of responsibilities could quickly and efficiently be implemented. Use of this
authority might also be a matter of considerable concern to Congress, since it would
appear to undermine congressional limitations on the use of funds. If the Navy can
support Army operations with large amounts of money, then the integrity of the
account structure into which Congress appropriates money is clearly at issue.
Summary of Measures to Extend Operations
The Defense Department warned that money available to sustain Army and
Marine Corps operations would run out in February or March, and CRS calculations
are consistent with this projection. The Defense Department might have been able
to extend military operations further by transferring limited additional amounts to the
Army and Marine Corps and by slowing down operations, but each alternative has
!Excess cash balances remaining in working capital funds might be
as high as $2.1 billion. Tapping these funds would, however, reduce
21 See Title 5, Section 3341 and Title 10, Sec. 113 (d).
DOD’s remaining flexibility to respond to unexpected
!The Army projected that measures it planned to slow down
operations in April, 2007, might, at the upper limit, avoid $3.6
billion or so of obligations over three months. Some of these
measures, however, may disrupt day-to-day Army operations.
!Deferring new orders for depot maintenance might reduce planned
obligations by $400 million or so per month, or about $1.6 billion
over four months or $2.0 billion over five months. CRS cannot,
however, assess how this would affect depot work planning.
Taken together, all of these measures might temporarily reduce or offset Army
and Marine Corps funding requirements by as much as $2.1 billion (use remaining
excess cash balances in working capital funds) + $3.6 billion (slow operations) +
$1.6 billion (defer new depot maintenance orders) = $7.3 billion, or a bit more than
one month's worth of funding at the then-current obligation rates, which would allow
the Army to extend operations until about the end of March, 2008 (see Table 2).
A potentially more significant source of funds might have been to invoke the
Feed and Forage Act. In the past, it has been used to finance as much as $7.4 billion
of war-related operations in today's prices. That amount would finance Army and
Marine Corps operations for about another month. Operations might be sustained
longer if larger amounts were used. There may be some problems negotiating
contracts, however. And use of the Feed and Forage Act raises significant war
powers issues. For Congress to recommend use of the Feed and Forage Act appears
particularly ironic – it is, in a sense, to write the script for the Executive Branch to
evade legislative restrictions on the use of funds to carry on the war in Iraq.
The potential for DOD to use unprecedented measures, such as the flexibility
given to the Secretary of Defense to reassign responsibility for support activities to
other services, is particularly hard to assess. It might be difficult to administer, or it
might involve only paper changes that could be implemented quickly. It would
appear, however, to undermine congressional controls on the use of funds.
Table 3: Options for Extending Army Operations in Advance of FY2008 Supplemental Appropriations*
tionsPotentialPotential NumberDate FundingPrecedents/NotesPotential Consequences
Additionalof Weeks or DaysMight Run Out if
Funds/ReductionFinanced atOptions Are
in Obligation ofObligation RateCumulative and
FundsAssumed by ArmyFully Implemented
lan: Use all funds in regular$27. 4 billion for21 weeks accordingFebruary 23, 2008“Cash flowing” – i.e., movingServices have long complained
2008 Defense Appropriations ActArmy O&M into Army(current officialfunds from the end of the yearthat “cash flowing” such large
d transfer $3.3 billion from NavyFY2008 DefensecalculationsArmy estimate)to the beginning has beenamounts is disruptive. Would
d Air Force under GeneralAppropriations Act;(assumes $1.5common in recent years. exhaust all $3.7 billion in
ansfer Authority and $800 million+ $4.1 billionbillion obligationsGeneral Transfer AuthorityGeneral Transfer Authority
working capital fund cashtransfer;per week)used in FY2007 was later(transfer of $0.4 billion
lances ($4.1 billion total) to Army= $31.5 billionrestored by Congress. Requiresremainder is requested for
iki/CRS-RL34275eration & maintenanceapproval of congressional JIEDDO), unless and until
g/wdefense committees. Congress were to restore it.
leake all remaining excess cashlances in working capital funds$2.1 billion10 daysMarch 3, 2008Cash balances a commonsource of funding for O&MWould reduce remaining DODfinancial flexibility unless and
://wikiaccounts. Requires approval ofcongressional defenseuntil Congress were to restoretransferred funds.
w obligations of funds through$3.6 billion over17 daysMarch 20, 2008In April, DOD achievedProposed measures appeared
ogressively more restrictive limitsthree monthssavings from delaying contractslikely to become increasingly
er three months, as the Army(Army estimate ofand other belt tighteningdisruptive to Army operations
ned and began to implement inApril 2007)measures. Monthly obligationsover time. CRS did not assess
ril 2007often fluctuate.their impact or alternatives.
fer depot maintenance of $400$1.6 billion over 47 to 9 daysMarch 27-29, 2008Reducing current 7 and ½Depots need some backlog for
n per monthmonths, $2.0 billionmonth backlog of depot ordersplanning purposes.
over 5 monthsmay not delay repair deliveries.
CRS calculations based on Army estimate of end date of February 23, 2008 and estimates of funding amounts from sources cited above.
Use of the Feed and Forage Act of other authorities might extend funding further, but potential amounts could vary. Please refer to the full text of this report for a full review
otential sources of funds and limitations on their use.
Appendix: Availability of Funding with Baseline
Defense Appropriations and with
$70 billion Unrestricted Bridge Fund
For purposes of comparison, Table A1 shows how long Army and Marine
Corps funding would last at planned obligation rates in the absence of additional
supplemental appropriations or transfers of funds beyond the $4.1 billion initially
planned (it is the same as Table 1 above). Table A2 shows how long Army and
Marine Corps funding is now expected to last at somewhat higher planned obligation
rates with the additional amounts included in the final, enacted version of the
FY2008 consolidated appropriations bill, H.R. 2764, which includes the McConnell
$70 billion defense bridge fund.
Table A1. Army and Marine Corps O&M Funding with Baseline
FY2008 Defense Appropriations and Proposed Transfers
(amounts in millions of dollars)
(1) (2) (3) (4) (5) (6)
Appropria- F unding Per Av a ila ble Wo uld
tions Transfers (1) + (2)Month(3) ÷ (4)Run Out
Army Operation & $ 27,362 $ 4,056 $ 31,418 $ 6,500 4.9 End-
Marine Corps $ 4,792 $ - $ 4,792 $ 790 6.1 Beginning-
Maintena nc e
Table A2. Army and Marine Corps O&M Funding with Baseline
FY2008 Defense Appropriations and FY2008 Omnibus
Appropriations with $70 Billion in Supplemental Funds
(amounts in millions of dollars)
(1) (2) (3) (4) (5) (6)
Budget FY2008 Total Average MonthsMonth
Defense EmergencyAppropria- Funding of FundingFunding
tions tions (1) + (2) Month* (3) ÷ (4)Run Out
Army Military$ 31,535$ 783$ 32,318$ 3,6628.8 Mid-June
P e r s o nne l
Army Operation and$ 27,362$ 35,152$ 62,514$ 6,9888.9 End-June
Maintena nc e
Marine Corps Military$ 10,280$ 56$ 10,336$ 1,00610.3 Early-
P e r s o nne l August
Marine Corps End-
Operation and$ 4,792$ 3,966$ 8,758$ 80310.9August
Maintena nc e
*Note: See below for a discussion of planned obligation rates.
A word about assumed obligation rates. The estimates in Table A1 are
based on assumed monthly obligation rates (shown in Column 4 of each table) of
$6.5 billion per month for the Army and $790 million a month for the Marine Corps.
The assumed Army obligation rate is based on Army estimates that it would exhaust
funding available in the regular FY2008 defense appropriations act plus funding
transferred from other accounts by February 23. This monthly obligation rate appears
reasonable, though it is somewhat below the average monthly rate that would result
from the amount provided in the regular FY2008 defense appropriations act plus the
amended supplemental appropriations request for Army O&M. The assumed Marine
Corps obligation rate is the level the Marine Corps appeared to be assuming early in
the fiscal year, which is quite close to the average monthly rate reflected in Marine
Corps budget requests.
The estimates in Table A2 reflect DOD briefings to congressional staff in
March 2008. The projected obligation rates reflect the average monthly rate of
funding that would result from amounts requested in the regular FY2008 defense
appropriations act and in the amended supplemental appropriations request for each
budget account. If obligations rates were slower – as they were earlier in the year –
money would last longer.