The Armies and Navy Clauses: An Analysis of Two ‘Forgotten’ Clauses and Their Implications for Defense Appropriations

24 Pages Posted: 29 May 2011

Date Written: May 26, 2011

Abstract

Article 1, Section 8, Clause 12 and 13 of the Constitution provide that the Congress shall have power “[t]o raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years; [t]o provide and maintain a Navy.”

A reading of their plain and ordinary meaning will dictate that congressional appropriation for the use of raising and supporting the United States Army shall not be for a term longer than two years. Nonetheless, the majority of the congressional appropriations for Army weapon procurements have had no year limit or year limits for a term longer than two years. This Note seeks to analyze the historical background for the Armies and Navy Clauses and their meanings as applied to the congressional defense appropriations. Despite the two Attorney General’s Opinions in 1904 and 1948 to the contrary, the current practice of imposing no year limit or longer than two years limit to the funds appropriated to the United States Army for the purpose of weapon procurement is unconstitutional. If the clauses are read more broadly, almost all the current funds with no year limit or a time limit longer than two years appropriated to the Department of Defense and other types of federal and foreign armed forces could be unconstitutional.

First, the text of the Constitution is clear in imposing the time limit to any fund for the use to “raise and support armies”. It strains common logic to play with words and argue that arms and weapons procured for the Army are not used to “support” the Army. Secondly, historically, there was a long tradition both in Britain and the Colonies against standing armies. The inclusion of the two year appropriation limit reflected an deep-seated aversion to the possibilities of establishing standing armies. Finally, structurally, the two-year limit imposes a well-designed congressional check on the executive in maintaining a standing army. Abolishing such an important institutional check without a constitutional amendment seriously frustrates the Framers’ original intent and undermines the structure of civilian supremacy over the military.

Despite the very strong contention that the current Army appropriation practice is unconstitutional, it is unlikely that federal courts would entertain a suit challenging the constitutionality of current congressional appropriation practice. This article lists a few possible avenues of challenging the current practice. Yet, the likelihood of success on the merits is relatively low.

To sum up, there is no sound textual, structural, or historical basis for the commonly accepted practice that Congress can appropriate funding for Army procurement for a term longer than two years. Nonetheless, the current unconstitutional appropriation practice would probably persist in the future.

Keywords: Constitution, Appropriation, Defense, Army, Navy, Marines, Army and Navy Clause

Suggested Citation

Zhu, Xinping, The Armies and Navy Clauses: An Analysis of Two ‘Forgotten’ Clauses and Their Implications for Defense Appropriations (May 26, 2011). Available at SSRN: https://ssrn.com/abstract=1853775 or http://dx.doi.org/10.2139/ssrn.1853775

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