The Army Clause, Part 3: Appropriations, Conscription, and War Materials

The Army Clause, Part 3: Appropriations, Conscription, and War Materials

Legal Sidebari

The Army Clause, Part 3: Appropriations,
Conscription, and War Materials
July 22, 2024
This Legal Sidebar is the third in a five-part series that discusses the Constitution’s Army Clause, which
allows for the federal government to raise and support armies while also allowing for congressional
control through the appropriations process. Because the Army Clause provides Congress with an essential
element of the United States’ suite of war powers, understanding the Army Clause may assist Congress in
its legislative activities.
This Sidebar post discusses interpretations of the Army Clause in connection with appropriations,
conscription, and war materials. Other Sidebars in this series discuss the Clause’s historical backdrop;
drafting and ratification history; role in individual rights cases; and connection with principles of
federalism. Additional information on this and related topics is available at the Constitution Annotated.
Time Limits on Army Appropriations
Although the Army Clause provides that no appropriation of money to raise and support armies “shall be
for a longer term than two years[,]” the executive branch has interpreted this restriction to allow the Army
to make investments in military equipment and supplies using appropriations available for more than two
years. In 1904, the executive branch addressed whether it would violate the two-year appropriations
restriction by contracting to pay patent royalties in exchange for construction of guns and other equipment
if the royalty payment might continue beyond two years. The Solicitor General opined that the contract
would be lawful because the Army Clause’s appropriations restriction is “confined to appropriations to
raise and support armies in the strict sense of the word ‘support,’ and does not extend to appropriations
for the various means which an army may use in military operations, or which are deemed necessary for
common defense.” The Solicitor General reasoned that expenditures to “arm, equip, and render effective”
armies that Congress has previously raised are not subject to the two-year restriction.
In 1948, the Attorney General relied on the 1904 opinion in concluding that Congress could appropriate
funds for aircraft and aeronautical equipment procurement beyond two years. Congressional committees
have also advanced the view that the Army Clause’s appropriation restriction does not apply to defense
articles or equipment. The Supreme Court has not addressed the constitutionality of this interpretation of
the appropriations restriction, although it has addressed the scope of Congress’s power under the Army
Clause in other contexts.
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Congressional Authority over Conscription and War Materials
The Supreme Court has often described Congress’s power under the Army Clause in expansive terms, and
it has rejected a variety of claimed limits on congressional power to raise and support armies. One early,
high-profile dispute concerning the Army Clause arose when Congress enacted a compulsory draft law
after the United States entered World War I. In the Selective Draft Law Cases, a group of individuals
prosecuted for failing to register for the draft argued that the federal government could only call forth
volunteer enlistments and that it lacked the constitutional power to compel enforced military duty through
a draft. The Supreme Court rejected this position in strong terms, describing it as “so devoid of
foundation that it leaves not even a shadow of ground upon which to base the conclusion.” The Court was
similarly dismissive of the claim that compulsory military service violated the Thirteenth Amendment’s
prohibition on “involuntary servitude,” which the Court stated was “refuted by its mere statement.”
The Selective Draft Law Cases also addressed the Army Clause’s relationship with the Militia Clauses. In
Article 1, Section 8, Clause 15—the first of two Militia Clauses—the Constitution allows Congress to
provide for calling forth the militia to execute federal law, suppress insurrections, and repel invasions.
The draftees in the Selective Draft Law Cases argued that congressional authority to raise armies was
limited to the same three purposes, but the Supreme Court interpreted Congress’s power under the Army
Clause as distinct from its power over militias. Because the two powers operated independently, the
Militia Clauses did not qualify or restrict congressional authority under the Army Clause, the Court held.
With congressional authority to raise armies through conscription was firmly established in the Selective
Draft Law Cases, the Supreme Court’s next major Army Clause case addressed congressional power to
support armies by providing supplies and equipment. In Lichter v. United States the Court addressed a
constitutional challenge to the Renegotiation Act, which allowed the government to renegotiate contracts
for war supplies and to recoup excessive process. In upholding the statute as a valid exercise of
Congress’s war powers, the Supreme Court elaborated on the Army Clause and described its authority as
“broad rather than restrictive.” The Court viewed the Renegotiation Act as part of the United States’
policy to rely partly on private industry to ensure production of equipment and supplies necessary to the
war effort. Just as Congress has broad power to conscript individuals under the Army Clause, the Lichter
Court explained, congressional authority to ensure that military has the material needed to wage war
successfully is “no less clear and sweeping.”
Click here to continue to Part 4.

Author Information

Steve P. Mulligan

Attorney-Adviser

Disclaimer
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to congressional committees and Members of Congress. It operates solely at the behest of and under the direction of
Congress. Information in a CRS Report should not be relied upon for purposes other than public understanding of

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