A. President’s Power.
1. “The President shall be the Commander in Chief of the Army and Navy of the United States….” U.S. Const. Art. II, § 2, cl. 1.
2. “He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls….” U.S. Const. Art. II, § 2, cl. 2.
3. “[H]e shall receive Ambassadors and other public Ministers….” U.S. Const. Art. II, § 3.
B. Congress’ Power.
1. “No money shall be drawn from the Treasury, but in Consequence of Appropriations made by law….” U.S. Const. Art. I, § 9, cl. 7.
2. “The Congress shall have the Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States….” U.S. Const. Art. IV, § 3, cl 2.
“An effective foreign policy requires more than ideas and pronouncements. It requires institutions, agencies, people and money, and Congress controls them all. Through the authorization and appropriation process, Congress sets the terms of commerce; it provides military forces and intelligence capabilities; and it establishes the conditions for development assistance, security support programs and U.S. participation in international organizations…. Hardly any important executive branch decision is taken without consideration of the reaction in Congress.” Philip R. Trimble, The President’s Foreign Affairs Power, 83 AM. J. INT’L. LAW 750 (1989).
Legislative Controls: Of the three general limitations – Purpose, Time, and Amount. The Purpose Statute is the fiscal law control most commonly raised in legal analysis of issues in U.S. military operations.
1. 31 U.S.C. § 1301(a) provides:
Appropriations shall be applied only to the objects for which the appropriations were made except as otherwise provided by law.
2. Three-Part Test for a Proper Purpose. In 1984, the Comptroller General specifically addressed numerous funding issues within the Ahuas Tara military exercises conducted in Honduras. Accordingly, the Comptroller General reiterated the three factors that determine whether to expend a specific appropriated fund. In this case, the Comptroller General was
reviewing the use of Army O&M funds or whether other appropriated fund sources should have been used, such as funding through the Department of State. The three factors are the following:
a. The expenditure must be reasonably related to the purposes for which the appropriation was made. (In other words more commonly cited, the expenditure of an appropriation must be for a particular statutory purpose, or necessary and incident to the proper execution of the general purpose of the appropriation.)
b. The expenditure must not be prohibited by law.
c. The expenditure must not fall specifically within the scope of some other category of appropriations. This last requirement applies even if the more appropriate funding source is exhausted and therefore unavailable.
THE NEED FOR EXPRESS LEGAL AUTHORITY.
A. General. “The established rule is that the expenditure of public funds is proper only when authorized by Congress, not that public funds may be expended unless prohibited by Congress.” United States v. MacCollom, 426 U.S. 317 (1976).
B. Article II Operations: Inherent Authority? See, e.g., R. Rosen, Funding Non- Traditional Military Operations: The Alluring Myth of a Presidential Power of the Purse, 155 MIL. L. REV. 1 (1998); W. Banks & P. Raven-Hansen, NATIONAL SECURITY LAW & THE POWER OF THE PURSE 166 (1994).
(Content derived from the 2d Operational Contracting Deskbook, US Army JAG School)