As Congress grapples with how to use the annual appropriations process to rein in President Trump’s use of federal immigration enforcement, it faces a major challenge: the Department of Homeland Security no longer needs annual appropriations to continue its aggressive immigration crackdown through the end of the Trump administration, unless Congress musters the votes to repeal the multi-year funding now on the books.
Last summer, Republicans enacted the One Big Beautiful Bill Act (OBBBA), providing ICE, CBP, DHS, and the Pentagon $170 billion to spend on domestic immigration enforcement over the next four years. Congress’s actions weren’t just unwise—they violated a provision of the Constitution meant to stop rogue presidents from creating oppressive, unaccountable standing armies. The Constitution’s Army Clause is simple but strict: Congress may “raise and support Armies,” but it may not fund them for more than two years at a time.
This is no minor technical violation. When the law’s broader Pentagon and other homeland security appropriations are also included, the bill locks in nearly $320 billion in multi-year funding for domestic military and enforcement operations—an amount larger than the combined annual budgets of the U.S. Army, Marine Corps, and Space Force. The House Armed Services Committee chairman is calling for $450 billion more in defense funding through reconciliation this year, positioning Republicans in Congress to lock in even more long-term military and immigration enforcement funding.
The House and Senate should not let this happen. To enforce the Army Clause’s two-year funding limit, Congress should adopt a new rule allowing Senators and Representatives to object to multi-year funding for military or law enforcement personnel organized on a standing-army model. When a bill containing such an appropriation reaches the House or Senate floor, any member could raise a “point of order”: an objection that, if upheld, automatically removes the funding from the bill unless two-thirds of the chamber votes to keep it.
The Army Clause’s Two-Year Rule
While the Founders ultimately accepted that a professional standing army might be necessary for national defense, they viewed it as a particularly dangerous institution in a republic. A permanent, centrally controlled military force, they feared, would tend over time to detach from civilian society, develop interests and loyalties of its own, and align itself with the president rather than with the people. Unlike temporary or locally rooted forces, a standing army could be used continuously and at scale, making it susceptible to being turned inward to enforce domestic policy, suppress political opposition, or entrench executive power. The Boston Massacre—in which British soldiers fired into a hostile crowd and killed five people—crystallized the lesson that permanent standing armies could dominate civilian governance and tyrannize the people.
One of the Constitution’s central remedies to these risks is fiscal. Madison described Congress’s power of the purse as the people’s “most complete and effectual weapon . . . for obtaining a redress of every grievance.” The Constitution places only one temporal limit on that power: The Army Clause, which provides that “Congress shall have Power To . . . raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years.” Unlike funding for any other purpose, Congress could not provide long-term or permanent funding for a standing army.
This prohibition ensures Congress retains recurring control over military funding. Once appropriated, permanent military funding would be difficult to reverse. Doing so would require the consent of both the House and Senate and, if the president objects, potentially a two-thirds majority to overcome a veto. By limiting the army funding to two years, the Army Clause ensures that the funding expires at least once each Congress, giving voters a new opportunity to decide whether it should continue. Voters need only flip a single House of Congress to terminate funding, allowing popular opposition to translate quickly into policy change. This ensures that the Executive remains responsive to the electorate even midway through a presidential term.
The Clause also preserves Congress’s institutional authority: no prior Congress may bind a future one, and the Executive must repeatedly secure affirmative consent from both chambers to maintain a standing force. As Hamilton wrote, Congress was “not at liberty” to vest the president with permanent military funding, even if it were “incautious enough” to trust that such power would not be abused.
The Army Clause Requires a Functional Application
These structural concerns also inform how the Army Clause should be interpreted today. Because the Clause was designed to prevent Congress from entrenching a permanent, centralized coercive force under executive control, its application cannot turn on labels alone. If the Army Clause could be evaded simply by renaming a standing force or by placing a militarized force in a civil agency outside the traditional military, its core safeguard would be easily nullified. The Army Clause therefore demands a functional, not merely formal, interpretation.
The Constitution’s text itself points away from a purely formal reading of the Army Clause. The Clause limits appropriations for “Armies,” not for any particular institution called “the Army,” signaling that the Clause turns on the nature and use of a force rather than on its label or organizational home.
That understanding is reflected even in the limited executive branch guidance addressing the Clause’s scope. The Department of Justice has publicly addressed the Clause’s reach only in two opinions, issued in 1904 and 1948. In both cases, the Department asked whether particular appropriations were used to raise and sustain armed forces—even when those funds were routed through departments other than the Army itself, namely the Navy and, later, the Air Force. Despite the Constitution’s Navy Clause having no two-year limit, the Justice Department applied the Army Clause’s potential restriction. The analysis focused on function and use, not nomenclature.
A functional reading of the Army Clause nevertheless has limits: it reaches only those federal forces that are permanent, centrally controlled, and capable of exercising continuous coercive power under executive command. The Clause was designed not to regulate all federal coercive force, but to prevent Congress from entrenching a standing force capable of menacing popular liberty. For that reason, the Founders expressly exempted two other forces from the two-year limit: naval forces and state militias. Naval forces were understood to lack the capacity for domestic occupation or routine civilian control. The state militias, though far larger than the standing army at the Founding and subject to some federal control, were viewed not as a threat but as a safeguard: locally rooted, temporarily mobilized, and structurally resistant to executive domination. The Army Clause’s focus on “armies” thus reflects not formal taxonomy, but a theory of risk—one tied to permanence, centralized executive control, and the capacity for continuous, large-scale deployment.
One might object that the Clause’s plain text limits its reach to the military alone: it speaks of “Armies,” not any coercive force, civil or military. To be sure, the Founders’ debates centered on standing armies, not on civilian magistrates executing the law. But that distinction reflected the institutional reality of the late eighteenth century. At the Founding, federal law enforcement consisted primarily of United States Marshals and their deputies executing judicial process under the Judiciary Act of 1789. Marshals were individually appointed officers attached to federal courts who operated within geographically distinct districts. They were not organized as a consolidated national corps capable of coordinated, continuous coercive operations.
The Clause’s military phrasing therefore captured the only federal institution that, at the time, posed the structural risk of entrenched, executive-controlled coercive power. It does not follow that the Constitution permits Congress to entrench a functionally equivalent force under a different name simply because it is housed in a civil department.
Where Congress creates a continuous, centrally directed coercive force and insulates it from regular democratic control through appropriations, the constitutional concern underlying the Army Clause reemerges. The Clause does not collapse the civil–military distinction; it prevents Congress from entrenching a force that, in functional terms, performs the liberty-threatening role the standing army once uniquely held.
DOD Funding Violates the Army Clause
Before turning to civilian law-enforcement agencies, we address the application of the Army Clause to Defense Department funding, the paradigmatic case. The OBBBA appropriates $150 billion for the Armed Forces, with funds for four fiscal years, twice as long as the Army Clause allows. These appropriations span a range of purposes, including personnel, operations and maintenance, weapons systems, military construction, and support for border security, counter-narcotics, and migrant detention activities.
Whether the full $150 billion violates the Army Clause depends on how the Army Clause is interpreted. In its two opinions on the Clause, the Department of Justice concluded that it does not apply to appropriations for weapons procurement or military construction. Congress adopted this same reading of the Clause in 1941 during consideration of the Lend-Lease Act. Reviewing these opinions in 1973, the Government Accountability Office described the prevailing view as a “very strict construction” of the Army Clause, under which only appropriations for “personnel” and for “operations and maintenance” would be considered appropriations to raise and support armies. Even accepting that narrow view—an interpretation that Matthew Lawrence has questioned in recent scholarship—the OBBBA’s several billion dollars in Defense Department personnel and operations funding violates the Clause.
These funds include amounts specifically designated for border security operations, counter-narcotics activities, and migrant detention. They provide open-ended funding authority for the continued deployment and operational support of armed forces in domestic enforcement contexts, including sustained assistance to CBP and ICE. The four-year availability of these funds is sufficient to violate the Army Clause’s two-year limit. The domestic law-enforcement context underscores that this is not a technical or formal defect, but the very kind of durable entrenchment of armed federal power the Clause was designed to prevent. The funds are not tied to any defined or time-limited military mission, instead authorizing mission-agnostic support for domestic law enforcement for the length of an entire presidential term. Despite the clarity of the constitutional problem, these violations were not publicly identified before OBBBA’s passage and have received little scrutiny since.
CBP and ICE Funding Violate the Army Clause
Unlike the FBI, DEA, and ATF—which are primarily funded on an annual basis for personnel and operations—OBBBA provides four years of funding for ICE and CBP at a scale far exceeding prior funding levels, substantially expanding their enforcement capacity while insulating them from annual congressional review. All of these funds are available for four fiscal years: approximately $75 billion for ICE; $18 billion for CBP hiring, facilities, technology, and surveillance; $47 billion for border wall construction; and an additional $22 billion fund that the Secretary of Homeland Security may allocate to any border enforcement purpose without restriction.
ICE and CBP are precisely the kind of institutions for which such long-term funding raises constitutional concern. Each is a permanent, salaried, federally controlled force organized under a centralized executive chain of command. Each is deployed continuously nationwide rather than episodically or locally. Each exercises federal power through routine, institutionalized coercion—armed arrest, detention, search, surveillance, and removal—and has become increasingly militarized in training, equipment, and tactics.
The legal regime governing these agencies reinforces their structural resemblance to the military, while in important respects subjecting them to looser constraints. Although ICE and CBP officers are formally governed by civil law, they are functionally insulated from much of its enforcement:
constitutional remedies are largely unavailable in practice; qualified immunity sharply limits liability; and even successful claims rarely impose costs on officers or their agency. At the same time, unlike the armed forces, these agencies are not subject to the Uniform Code of Military Justice. The result is a permanent, nationally controlled coercive apparatus that faces limited civil liability and no military discipline—in other words, a federal paramilitary force.
Enforcing the Army Clause Through Congressional Procedure
Congress can enforce the Army Clause’s two-year funding limit by embedding it directly into its own legislative procedures. Specifically, the House and Senate should each adopt a rule prohibiting appropriations that fund the armed forces, ICE, CBP, or similar federally controlled coercive forces for more than two years. By defining the scope of the rule in advance, Congress can give practical effect to the Army Clause temporal discipline through self-governance.
Congress would then enforce this rule through a point of order—a procedural device that allows any member to challenge a provision on the House or Senate floor. When a member raises the point of order, the presiding officer rules on it, acting on the advice of the House or Senate Parliamentarian. If the presiding officer sustains the objection, the offending provision is removed from the bill while the rest of the legislation continues to move forward. Under the proposed rule, any appropriation exceeding two years for covered forces could be challenged in this way. If the chamber wishes to retain the properly challenged provision, it could do so only by waiving the rule with a two-thirds vote—a threshold equivalent to that required to override a presidential veto.
Because Congress would define the rule’s scope in the text of its rules, enforcing it would not require Parliamentarians to interpret or apply the Constitution. Their role would be limited to a ministerial determination of whether a challenged provision falls within the rule’s predefined categories and exceeds the permitted duration. The point of order would thus operate prophylactically, enforcing the Army Clause’s structural purpose—preventing the entrenchment of permanent, centrally controlled force capable of exercising continuous coercive power under executive command—through congressional procedure itself. A point of order would not prohibit long-term funding outright, but would instead condition it on heightened procedural hurdles in each chamber.
Why the Point of Order Matters
The point of order would serve several related functions. First, it would change the decision rule for long-term funding of coercive forces. The Senate would need a supermajority to waive the rule, and the House would need an affirmative, recorded vote. Neither chamber could authorize multi-year funding by default or omission.
In the Senate, a bare majority can currently entrench a standing force through reconciliation. Both parties have increasingly used reconciliation to bypass the Senate’s 60-vote threshold for appropriations, increasing the risk that long-term funding for coercive forces will be enacted by a simple majority of the president’s party. No standing rule forces senators to confront the Army Clause’s two-year limit or to justify its circumvention.
In the House, by contrast, a simple majority could still waive such a rule, as it can with most House rules. But requiring an explicit vote to waive the point of order would itself impose a political cost, forcing members to go on record to override a safeguard grounded in the Constitution’s two-year limit.
Second, the point of order would mitigate the pressure created by omnibus legislation. If multi-year funding is embedded in a large legislative package, individual members are forced to choose between upholding the Constitution and voting down a must-pass bill. A point of order that strikes only the offending provisions would restore a meaningful opportunity for focused consideration.
Third, even if rarely invoked, the rule would shape legislative practice, as the threat of a point of order would force attention to the issue during drafting and negotiation.
Fourth, the point of order would allow Congress to enforce the Army Clause through its own procedures, rather than relying on uncertain judicial review. Structural appropriations disputes may not always be justiciable. Congress should not wait for courts to enforce a constitutional limit that governs its own spending power.
Which Forces Are Covered
The point of order would cover two categories of federally controlled coercive force. First, it would apply to the Armed Forces, excluding naval forces, which are expressly exempt from the Army Clause. Second, it would apply to ICE, CBP, and other federal law-enforcement agencies that are permanent, centrally controlled, and capable of exercising continuous coercive power under executive command.
Applying the rule beyond ICE and CBP would require Congress to determine, through the text of the rule itself, which additional agencies meet these criteria. That determination could be made explicitly at the time the rule is adopted, based on the agencies’ structure, command hierarchy, and enforcement authorities.
Other federal law enforcement agencies, such as the FBI, DEA, and ATF, share some of these same structural features, so the Army Clause could arguably extend to them as well. If Congress concluded that the Clause applies to these agencies, it would have limited practical impact, because nearly all of their personnel and operations funding is already appropriated on a one-year basis. It would mainly require narrowing DOJ’s Assets Forfeiture Fund so that those dollars flow through two-year appropriations. That’s a targeted statutory adjustment, not a restructuring of federal law enforcement.
Which Appropriations Are Covered
Following GAO’s characterization of the existing doctrine, only appropriations for personnel and for operations and maintenance would trigger the point of order. Personnel costs include salaries, basic pay, bonuses, and allowances that keep armed or enforcement personnel at the president’s disposal. Operations and maintenance appropriations sustain readiness, deployment, and the ongoing use of force. The rule would exclude benefits funded through mandatory or permanent appropriations—such as retirement, disability compensation, and health benefits—because these expenditures do not expand deployable coercive capacity.
Restoring Congressional Control Over Federal Coercive Power
By limiting appropriations to two years, the Founders hoped to prevent any president from controlling a permanent armed force without Congress’s consent and oversight. Hamilton argued that the Army Clause’s two-year limit would force “public attention [to] be roused and attracted to the subject, by the party in opposition; and if the majority should be really disposed to exceed the proper limits, the community will be warned of the danger, and will have an opportunity of taking measures to guard against it.” But Congress has not enforced this limit—or perhaps even noticed its violation—to the benefit of the Trump administration.
Using OBBBA appropriations, the Trump administration has deployed armed federal agents who have detained U.S. citizens without warrants and used armed, and in some cases deadly, force against peaceful protesters. Although the Trump administration is still in the first year of its four-year funding, the extended availability of these funds insulates these agencies from political accountability. As a result, CBP and ICE can continue current enforcement practices even amid intense congressional debate over DHS funding, because the core operational capacity of these agencies is already insulated from annual appropriations leverage. That dynamic illustrates the Founders’ core concern: once Congress relaxes the temporal constraints on armed federal power, meaningful political control becomes far harder to reassert.
Congress must not repeat this mistake. A point of order enforcing the Army Clause’s temporal discipline would force members to account for the Army Clause’s restrictions. In doing so, it would give practical effect to a constitutional safeguard designed not to prohibit force, but to ensure that its continued use remains subject to regular democratic judgment.
– Scott Levy and Kevin McNellis, Published courtesy of Just Security.
