Some Casual Unconstitutionality

David Super

     Section 20011 of the One Big Beautiful Bill Act (OBBBA) declares “there are appropriated to the Secretary of Defense for fiscal year 2025, out of any money in the Treasury not otherwise appropriated, to remain available until September 30, 2029, $1,000,000,000 for the deployment of military personnel in support of border operations, operations and maintenance activities in support of border operations, counter-narcotics and counter-transnational criminal organization mission support, the operation of national defense areas and construction in national defense areas, and the temporary detention of migrants on Department of Defense installations…”. 

     Article I, section 8, clause 12, of the U.S. Constitution grants Congress the power “To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years”.  The four-plus years that section 20011’s appropriation is available would seem to exceed that limit rather directly.  Section 20011 clearly is intended to fund the Army and does so. 

     The Government Accountability Office’s Principles of Federal Appropriations Law (3d ed 2004), which the Supreme Court has relied upon in appropriations cases, says on page 1-13:  “The 2-year limit in clause 12 has been strictly construed as applying essentially to appropriations for personnel and for operations and maintenance and not to other military appropriations such as weapon system procurement or military construction. See B-114578, Nov. 9, 1973; 40 Op. Att’y Gen. 555 (1948); 25 Op. Att’y Gen. 105 (1904). In any event, Congress has traditionally made appropriations for military personnel and operations and maintenance on a fiscal year basis".  Section 20011’s repeated references to “operations” makes clear that much of what it funds is in the personnel, operations and maintenance category and hence subject to the two-year limitation. 

     The One Big Beautiful Bill Act lacks a severability clause.  It has no global statement of purpose nor is one to be found in the concurrent resolution on the budget that it implements.  How lovely it would be if Justices Thomas and Gorsuch led the Court to declare section 20011 unconstitutional and then to remind Congress that the Constitution does not empower the Court to “blue pencil” duly enacted statutes containing unconstitutional provisions.  Congress surely would repass OBBBA without section 20011, but after the hasty and heedless process that led to that legislation, Congress should be reminded that the Constitution still matters and be made to cast those votes again.

     The question arises how this happened.  A mechanical answer is that OBBBA provides the Army with mandatory money (the same kind that funds Social Security and Medicare) and hence was within the jurisdictions of the House and Senate Armed Services Committees rather than the Defense Subcommittees of the House and Senate Appropriations Committees.  Appropriators are accustomed to working with the two-year limitation; authorizing committees are not.  That is a lousy justification:  all Members take oaths to the entire Constitution.  (I shudder to think what would happen if Members of Congress were allowed to take their oaths to the Constitution a la carte.)

     A more structural answer is that neither chamber’s procedural rules place any particular premium on adherence to the Constitution.  It takes sixty votes in the Senate to violate your 302(a) allocation but only 51 votes to violate the Constitution.  And the House Rules Committee may block any points of order it sees fit.  These facts ought to embarrass all Members of Congress with any influence over its rules (with special demerits for those that like to talk about strict adherence to the Constitution). 

     The broader answer seems to be that adherence to the Constitution no longer carries the prestige it once did and disregard of our fundamental charter is no longer particularly stigmatized in much of our political community.  Section 20011’s authors, and all that waved it through as it navigated the legislative process, should be deeply ashamed.  I very much doubt that they are or will be.  This is a fundamental problem for the sustainability of our political community.

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