Reviving the Power of the Purse: Appropriations Clause Litigation and National Security Law.

• Author: Neumeister, Mckaye

NOTE CONTENTS INTRODUCTION 2515 I. THE MODERN IMBALANCE IN NATIONAL SECURITY POWERS AND THE WEAKENED POWER OF THE PURSE 2517 A. The Evolution of the Appropriations Clause: From the Framing to the Present 2517 B. Failed Attempts To Correct the Imbalance Through Congressional Litigation 2523 1. War Powers Litigation 2523 2. National Security Litigation: Intelligence and Funding 2525 II. THE NORMATIVE CASE FOR CONGRESS LITIGATING ITS PURSE STRINGS 2528 III. REASSERTING CONGRESS'S ROLE IN NATIONAL SECURITY THROUGH APPROPRIATIONS CLAUSE LITIGATION 2532 A. The (Short) History of Congressional Appropriations Clause Claims 2532 B. Appropriations Clause Challenges and Political Will 2535 C. Potential Applications 2539 IV. THE MECHANICS OF APPROPRIATIONS CLAUSE LITIGATION IN THE NATIONAL SECURITY CONTEXT 2543 A. Jurisdictional and Threshold Issues 2545 1. Standing 2545 2. Ripeness 2550 3. Mootness 2552 4. Political Question Doctrine 2554 B. Merits 2557 1. How To Establish that Funds Were Not Appropriated 2557 2. Constitutional Dispute 2560 3. Relief 2564 C. Appropriations Clause Suits and the Separation of Powers 2568 V. BENEFITS INDEPENDENT OF SUCCESS 2571 A. Encouraging Narrow Appropriations 2571 B. Acting as a Signaling Device 2574 C. Preventing an Assumption of Acquiescence 2578 VI. THE CASE AGAINST THE CLAUSE: RESPONDING TO THE MAIN CRITIQUES OF THIS CONGRESSIONAL STRATEGY 2579 CONCLUSION 2583 INTRODUCTION

Since the Founding, war has changed. The national security challenges we face as a nation today are beyond the comprehension of the Framers. Yet the text of the Constitution remains the same. While Congress has the formal authority to be a significant force in national security policy making, (1) military conflicts do not occur within the Constitution's battle lines any longer. Instead, in the modern era, the President has the ability to initiate military conflicts without prior congressional authorization. (2) Congress is left playing catch-up, attempting to regulate military operations already underway. (3) The war power has thus shifted from Congress to the President, (4) and congressional attempts to constrain the President often go unheeded. (5) As Professors Bruce Ackerman and Oona Hathaway have observed, "[t]here is a pressing need for institutional reform that allows Congress to restore our endangered balance of powers" in war making. (6)

For such reform to succeed, it must leverage the most significant weapon in Congress's arsenal: the power of the purse. (7) Because Congress can no longer control the use of military force by declining to declare war, the appropriations power is likely Congress's strongest tool to influence national security decision maldng. However, the power of the purse is not functioning as the strong check the Framers envisioned. This Note explores a new tool that Congress can use to reassert its constitutional role in the conduct of war, and in national security more generally: Appropriations Clause litigation.

While focused on issues of national security and foreign affairs, this Note also considers the benefits of Appropriations Clause litigation for the separation of powers generally. The power of the purse is one of Congress's core checks on the executive branch, but it is not used as often or as effectively as it could be. (8) The threat of litigation is an important way to give the appropriations power more bite. And in doing so, it could reduce interbranch friction regarding the branches' respective roles in national security, since the appropriations dispute acts as a proxy for deeper interbranch disagreements. (9) The clarity that the Appropriations Clause provides could also bring some stability to courts' inconsistent separation-of-powers jurisprudence. (10) Even if the litigation does not succeed, legislators' collective decision to sue can signal to their most important audiences--the President, agencies, the courts, and the public--that Congress is serious about protecting both its policy priorities and its power over the federal treasury.

Part I examines the appropriations power, its original understanding, and modern issues with its application. Part II asks whether national security appropriations litigation is a desirable innovation, concluding that it could help Congress reassert its role vis-a-vis the Executive in funding national security and war making. Part III assesses the doctrinal possibility and political feasibility of Appropriations Clause litigation as a congressional tool. Part IV examines the mechanics of an Appropriations Clause lawsuit in the national security context, addressing the major hurdles to the success of such litigation. This Part then ties these hurdles back to the Supreme Court's adoption, during and after the Vietnam War, of a restrictive and waning view of its own role in separation-of-powers disputes. Part V explores the benefits that Appropriations Clause litigation can provide Congress, in terms of both intra- and interbranch relations, even if the litigation does not succeed. Part VI addresses possible critiques of the national security Appropriations Clause litigation strategy. Finally, this Note concludes that appropriations-focused national security litigation could succeed in the courts, and in doing so could aid Congress in reclaiming its constitutional role, thereby resetting the balance of power.

1. THE MODERN IMBALANCE IN NATIONAL SECURITY POWERS AND THE WEAKENED POWER OF THE PURSE

   The power of the purse, as originally understood and applied, served as a real check on the President's national security activities. As Ackerman and Hathaway observe, the power of the purse was "once a highly effective mechanism for forcing the president to operate within congressional limits." (11) However, "Congress has failed to adapt this power to meet modern challenges," (12) and as a result the purse strings are no longer as effective as they once were.

   The declining power of the appropriations power is attributable to shifts in both budget practice and the political environment. The modern structure of national security funding--consisting of lump-sum appropriations, as well as flexible tools like transfer and reprogramming authority (discussed below)--gives the President significant discretion in how military funds are spent. As a result, when Congress wants to exercise its appropriations power in this context, it faces an "uphill battle" (13) and must often resort to concessions and compromise. (14) This Part examines the early history of Congress's appropriations power in national security, the modern state of this power, and failed attempts to resurrect Congress's waning role. In light of history, modern practice, and failed attempts at reform, Appropriations Clause litigation provides a new tactic that could help resurrect Congress's appropriations power in the national security context.

   1. The Evolution of the Appropriations Clause: From the Framing to the Present

      The appropriations power is not what it once was. Congress effectively managed the national security purse strings in the early days of the Republic, just as the Constitution intended. The Framers envisioned the power of the purse 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." (15) The power of the purse had great import in the national security context, conceived as the best means to "prevent the executive from misusing the sword." (16) Confirming this view, Thomas Jefferson famously wrote: "We have already given... one effectual check to the Dog of war by transferring the power of letting him loose from the Executive to the Legislative body, from those who are to spend to those who are to pay." (17)

      To effectuate the use of the purse strings as a check on the Executive, early appropriations were specific and narrow. Consequently, "they gave Congress significant control over military action. Indeed, a single chamber of Congress could then prevent the initiation or continuation of a military conflict by refusing to fund the war." (18) For example, during the first major military action under the Constitution--a conflict between the militia and Indian tribes from 1789-91--Congress exercised very strict control via appropriations, specifically appropriating "everything from the precise numbers of troops to their al[l]otted daily rations" (19) and salaries. (20) Each time President Washington sought to launch a new campaign or raise more troops for the effort, he had to return to Congress for authorization and appropriations. (21)

      If a true emergency arose for which there were no appropriations, the practice that developed early in American history was for Presidents to act first and then seek an ex post, retroactive appropriation from Congress as soon as possible. (22) Congress would then have the option of approving the appropriation or subjecting the President to political retribution if it deemed the expenditure unnecessary. (23) Throughout American history, Presidents have followed this practice of spending unauthorized funds and seeking ex post congressional appropriations as soon as possible. (24)

      Early practice around national security appropriations thus displayed a reciprocal dynamic. Congress appropriated narrowly to exert control over war making. And even where the President withdrew unappropriated funds, he invariably sought ex post authorization from Congress and risked the mantle of unconstitutional action if Congress refused to appropriate the funds.

      Modern appropriations, however, are no longer so narrow and specific. The President no longer needs to seek congressional appropriations before launching a military campaign, and Presidents have sufficient contingency and transferable funds already appropriated to respond to any emergency. (25) Congress's modern...