Matthew B. Lawrence and Mark Nevitt (both Emory University School of Law) have posted Reviving the Military’s Term Limit (G.W. L. Rev. (forthcoming)) on SSRN. Here is the abstract:
This Article argues for the revival of a dormant constitutional safeguard that the Framers intended to keep the military accountable to the people. The safeguard is the Constitution’s forgotten Two-Year Clause, which prohibits Congress from appropriating funds “to raise and support Armies” for a period longer than two years. Intended to be Congress’s peace power, a 1904 legal opinion by Solicitor General William Hoyt strictly limiting the reach of the clause led to its obsolescence during the twentieth century. Congresses now routinely appropriate long-term funding for the Army, thereby putting important functions beyond the influence of their successors. The 119th Congress, for example, put military immigration enforcement and detention beyond the reach of the soon-to-be elected 120th Congress by providing four-year money for those activities in the One Big Beautiful Bill Act. The Article makes the affirmative case for reviving the Two-Year Clause on originalism, separation of powers, and federalism grounds. Hoyt’s opinion and the practice of routine long-term and permanent army appropriations it has enabled are contrary to the original meaning and intent of the constitution as well as early congressional practice. Moreover, reviving the Two-Year Clause would strengthen the separation of powers by preserving a fast-eroding norm of annual and biennial appropriations for most military functions while enhancing congressional control over the important subset of functions subject to long-term appropriations. Doing so would also protect state sovereignty as to domestic deployments of federal armies—whether called the “Army” or not—by re-engaging the political safeguards of federalism. National security, historical gloss, and justiciability considerations that have neutralized other checks on the president’s war powers should not stand in the way of reviving the Two-Year Clause. Revival would not have operational effects on national security decision-making and its fiscal effects would be mixed. Revival would not conflict with courts’ use of historical gloss in interpreting other war powers because the Two-Year Clause is distinctive in specifically prohibiting any one Congress from surrendering the power it guarantees to every Congress. And revival would not force courts to second-guess sensitive military judgments because the clause renders legislation unconstitutional, not executive action.
Recommended.
Lawrence Solum