Copyright (c) 1995 Iowa University
Iowa Law Review
ARTICLE: From Vietnam to Desert Shield: The Commander in Chief's Spending Power *
* This Article is an expansion of Chapters 8 and 14 of William C. Banks & Peter RavenHansen, National Security Law and the Power of the Purse (1994). Portions of that monograph are reproduced here with the permission of Oxford University Press and the authors.
81 Iowa L. Rev. 79
Peter Raven-Hansen **, William C. Banks ***
Changes in the technology and speed of warfare 1 have eroded the ability and, some would argue, the will of Congress to use its power to declare war before the use of force abroad. 2 Instead, Congress has increasingly relied on its power of the purse 3 to control national security operations. 4 As the war in Southeast Asia escalated, for example, Congress first sought to contain the war's scope by enacting area and use limitations in appropriation restrictions. 5 Later, Congress tried to end the war by the same means. 6 More recently, Congress sought to restrict the Commander in Chief's use of proxy armies in Nicaragua (the Contras--the armed resistance to the Sandinista government) by enacting the Boland Amendments, 7 a succession of restrictive appropriations and defense authorizations. At the time of this writing, the Republican-sponsored "Peace Powers Act of 1995" again invokes Congress's power of the purse to restrict the President's power to deploy U.S. armed forces in support of United Nations operations. 8
But if the Commander in Chief can spend for national security initiatives without specific appropriation or in disregard of appropriation restrictions, the congressional power of the purse fails as a check on executive war making and as a substitute for the practically vestigial declaration power. 9 On the other hand, if the Commander in Chief may never spend for national security activities without prior specific appropriation, he loses needed flexibility to cope with fast-breaking national security crises and may ...
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