Congress’s appropriations authority might be its best tool to restrict these deployments.
Editor’s note: This essay is part of a series on the limitations, drawbacks, and dangers of domestic deployments, from Lawfare and Protect Democracy.
Presidents have relied on broad statutory language and theories of Article II authority to assert substantial discretion over their use of the military within the United States. But this discretion is not limitless. There are, for example, the criminal prohibitions of the Posse Comitatus Act and requirements imposed under the Insurrection Act (such as they are). Less discussed, however, are limits imposed on the president under appropriations law. Such limits are important because military deployments are, quite simply, very expensive. For example, Congress had to appropriate nearly $521 million to cover the personnel and operational costs for the tens of thousands of National Guard members deployed to protect the Capitol over a five-month period after Jan. 6, 2021. In a budget as large as that of the Department of Defense—in fiscal year 2024, it came to over $824.5 billion—$521 million may seem like small potatoes. But the department has relatively limited capacity to move funds between appropriations. Therefore, appropriations law limitations may be a useful mechanism to restrict domestic military deployments.
Article I, Section 9, of the Constitution vests in Congress the power of the purse, providing that “[n]o Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law.” As implemented by 31 U.S.C. § 1301(a), this means that appropriations may be used only for the purposes set forth in statute. These appropriations can be very detailed. For example, in fiscal year 2024, Congress appropriated $9.8 billion for Army National Guard personnel costs and $8.6 billion in Army National Guard operation and maintenance costs. On their face, these appropriations afford significant latitude in how these billions may be used. The $9.8 billion in personnel costs, for example, is allocated for pay, allowances, travel, etc. associated with a range of duty under Titles 10 and 32. But this simplicity is deceiving because, as is common practice, Congress also incorporated by reference a much longer explanatory statement providing much more granular direction about how these funds must be used.
For example, of the $9.8 billion in personnel funds, Congress, in the explanatory statement, allocated $4.8 billion for training (of various sorts), a further $10 million for education benefits, and $39 million for retirement program matching contributions. The balance was for administering the Army National Guard (not a great endorsement of bureaucratic efficiency). We see a similar level of detail regarding the Army National Guard’s operations and maintenance appropriations. There are 20 sub-allocations directing the specific activities to be funded with the $8.6 billion in appropriations: $1.1 billion to support aviation assets, $2.6 billion for maintaining bases of operation and other facilities expenses, etc.
On their own, this level of specificity would suggest that the Defense Department is powerfully limited in the purposes for which its funding may be used. However, recognizing that exigencies require the Defense Department to have some flexibility in budget execution, Congress has provided two means for the Defense Department to move funds. First, the department may move funds between line items within an appropriation through a reprogramming action. Such an action would include, for example, moving funds originally allocated for education benefits to retirement program contributions within the Army National Guard personnel account. Congress has also provided limited authorization for the department to move funds between appropriations (such as between the Army National Guard personnel and Operation and Maintenance accounts) through transfer authorities. The most important of these authorizations is a recurring provision in Section 8005 of Defense Department appropriations acts. It authorizes the Pentagon to transfer up to $6 billion “for military functions” so long as the purposes for which the funds are being transferred are a “higher priority … based on unforeseen military requirements, than those for which [they are] originally appropriated and in no case where the item for which funds are requested has been denied by the Congress.” Reprogramming actions that are sent to Congress are subject to the same requirements, though there is no $6 billion limit. There’s a lot here, so let’s walk through the most important elements.
First and foremost is the $6 billion limit. While this may seem like a lot, it amounts to only 0.73 percent of the Defense Department’s $824.5 billion budget. Given the number of unforeseen military activities that may be required in any given year, that’s not a whole lot of flexibility.
This environment of (relative) constraint forces budgetary trade-offs, which Section 8005’s three additional requirements make visible. Let’s drill into each of them. First, the military purpose must be a “higher priority.” Neither the legislative nor judicial branch has had much appetite for second-guessing the Pentagon’s judgment as to what constitutes a higher priority item. In the context of the Trump administration’s construction of a southern border wall with Defense Department funds, for example, the Government Accountability Office (GAO) wrote that it was “in no position to disagree with DoD’s prioritization of military requirements.” The judiciary’s most recent engagement with Defense Department transfer authorities also arose in the context of the southern border wall. There, the U.S. Court of Appeals for the Ninth Circuit also didn’t question whether the Pentagon’s transfer of funds was for a higher priority (though it did find the transfer to be unlawful, for reasons detailed below).
If the first prong is largely committed to the Defense Department’s discretion, the second has a few more teeth. Defense Department and GAO documents both adopt the view that a military purpose is “unforeseen” only if the Defense Department isn’t aware of it “at the time of the budget request and when Congress passed DoD’s appropriations.” By statute, the president must submit the budget by the first Monday in February. This leaves a lot of time, even before we get to the new fiscal year, when a requirement can arise and still be considered “unforeseen.” Granted, the fact that the budget process has somewhat fallen to pieces over the past few decades may make this test slightly more meaningful. As continuing resolutions pile upon continuing resolutions, and budget submissions fall well past this February deadline, there are significantly more points at which the Defense Department can incorporate new requirements into its budget submissions.
The Ninth Circuit proposed a more exacting reading of this second requirement. Based on a plain reading of “unforeseen,” a majority asserted that the Defense Department may not transfer funds for a military requirement that it could have “anticipate[d] or expect[ed].” So, for example, promises made during a political campaign to build a wall or deploy troops to the streets of Washington would make a transfer for those purposes illegal under this reading of Section 8005. Whatever the merits of this interpretation, however, the Ninth Circuit’s opinion has no precedential value. After staying the Ninth Circuit’s decision (two times), the Supreme Court, at the Biden administration’s request, vacated both the Ninth Circuit’s judgment and that of the district court.
Finally, the purpose for which funds are repurposed must not be “denied by Congress.” Based on comptroller general opinions dating to the 1970s, the GAO has found that a congressional denial must be provided explicitly in statute (usually the relevant appropriation act). Once again, the Ninth Circuit has taken a different tack. Instead of looking to specific statutory denials, the court took a broader view of what it means to refuse a presidential request. It found meaningful, for example, Congress’s repeated refusal to appropriate the funds requested in presidential budgets for a southern border wall. Once again, however, this view is not binding in any jurisdiction.
Taken together, this pattern of practice certainly affords the Pentagon significant leeway in deciding whether to transfer funds. But this room to maneuver is not unlimited. Congress could, for example, legislate that “no funds appropriated in this act may be used for active-duty military deployments in Washington, D.C.” This would be a rather categorical denial, and undoubtedly another front in the long-standing separation of powers dispute between the executive and legislative branches about the reach of Congress’s appropriations power (wonderfully described by Zachary Price in a 2018 article that is essential reading in this field). But it illustrates how, even taking as a baseline the broad historical understanding of the Defense Department’s transfer authority, Congress can still quite intricately manage military activities within the United States. In a world where it is difficult to sustain momentum to make changes to existing statutory authorities, this opportunity, provided at least once a year in the appropriations process, is meaningful.
These limitations on executive action are particularly meaningful for domestic military deployments, especially if they involve the National Guard. The statutes authorizing military support to domestic civilian law enforcement agencies make long-term budgetary planning difficult. Many of these statutes require specific requests for assistance from a law enforcement agency. For example, 2 U.S.C. § 1970 requires a request from the Capitol Police Board before the Defense Department may provide support services. The same is true even in an emergency, though more congressional officials are empowered to transmit the request for assistance. Even under certain provisions of the Insurrection Act that don’t require a request for assistance (such as 10 U.S.C. §§ 252 and 253), a concrete obstruction of federal law must exist before the president can deploy the military. By requiring that certain factual conditions exist before the military can be used (conditions not readily susceptible to executive branch control), Congress has created a legal regime authorizing domestic military deployments that is at odds with the years-long planning at the core of the federal budgetary process. Put another way, it is quite difficult to internalize into the Defense Department budget the cost of potential military deployments within the United States.
More specifically, the president’s ability to use the National Guard for these domestic deployments is especially constrained, at least from a budgetary standpoint. The Defense Department budget only accounts for salary owed to members of the National Guard associated with planned federal duty—namely, preplanned training and deployments. To revisit the figures surveyed earlier, in fiscal year 2024, $4.8 billion of the $9.8 billion Army National Guard appropriation was dedicated to preplanned training. Another $4.9 billion was allocated for the costs associated with administering the Army National Guard. All of this means that, so long as projections for training and administration costs are relatively accurate, there isn’t any leeway in the budget to fund even a relatively short, unplanned National Guard deployment. It is no surprise, then, that the Defense Department required a multi-hundred-million-dollar supplemental appropriation to account for the shortfall that had accrued to pay for the tens of thousands of National Guard personnel deployed to Washington, D.C. after the Jan. 6 attacks.
This edifice of appropriations law is bolstered by administrative and criminal liability for misusing appropriated funds. The Antideficiency Act prohibits government employees from “mak[ing] or authoriz[ing] an expenditure or obligation exceeding an amount available in an appropriation or fund for the expenditure or obligation,” among other matters. Violating this prohibition can lead to criminal punishments of up to a $5,000 fine and two years’ imprisonment and administrative punishments including suspension from duty without pay and removal from office. All violations must be reported to Congress and the president, with a statement of corrective agency action.
I don’t want to overstate these consequences. There are many ways to remedy Antideficiency Act violations. And even the GAO has been unable to find records of any prosecutions under this act. But there are still consequences for violating the Antideficiency Act. A Consumer Product Safety Commission employee who violated the act, for example, was stripped of duties related to the violation. The Department of the Army, in a 2022 congressional report, further noted that responsibility for an Antideficiency Act violation carries “significant, frequently career ending, stigma.”
The Defense Department budget is, by and large, a zero-sum game. Had Congress not appropriated additional funds to cover the National Guard’s Jan. 6 deployments, the department would likely have canceled scheduled training to balance the books. This kind of reallocation carries real consequences—less training means reservists are less ready for their warfighting functions, whether that be missile defense, bolstering our presence in the Asia-Pacific, or otherwise. There is, therefore, at least some truth to James Madison’s statement that Congress’s appropriations power is “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.” In a legal regime characterized primarily by delegations of significant discretion to the president, the greatest check on domestic military deployments may be Congress’s authority to fund them. Executive branch officials ignore these limitations at their peril.
