An Obscure But Vitally Important Provision in the Constitution

 

So, as I have struggled to understand our insane system of budgeting, some major defects have come into full view.  Does it make any sense at all to require a super-majority in the Senate for annual appropriations and allow a simple majority for appropriations that can last up to ten years?  It would make infinitely more sense to me to pass ordinary legislation, including annual budgets, by a simple majority and require a super-majority to anything that commits us for an extended period of time.  Yet Senate rules have decided differently.  

To be clear, this requirement is not part of the Constitution, nor is it a statute.  It is a Senate rule that can be changed any time.  And as we face the extremely dangerous prospect of a lawless paramilitary with enough funding to last over seven years without further appropriations, I begin to fully appreciate an obscure but important provision in the Constitution and wish that it could be brought up to date to face our current situation.

The Constitution does not expressly authorize mandatory spending in the sense of spending that is required to continue for an extended length of time, often with a special fund to finance it.  But it does implicitly authorize mandatory spending by banning it in only one instance.  

Article I of the Constitution establishes Congress as the legislative branch of the Federal government.  Section 8 of Article I sets forth Congress's enumerated powers.  And Article I, Section 8, Clause 12 contains the only restriction on the duration of funding, giving Congress the power, "To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years."

Congress is not allowed to commit funds to support an army for any duration longer than two years, i.e., one House term.  Note that this provision does place such a limit on all military spending, only on spending on an army.  Article I, Section 8, Clause 13 authorizes Congress, "To provide and maintain a Navy" with no equivalent restriction.

The reasons for this provision are well understood.  The Framers of the Constitution distrusted standing armies but also recognized that unilateral disarmament was suicidal.  The two-year restriction was a compromise.  If an army started to look menacing, Congress would have the option of defunding it.*  Presumably the threat of loss of funds would also serve as a deterrent to any army with dangerous aspirations.  No equivalent restriction was placed on navies because navies posed no such danger.

Fortunately, that situation has never come about.  Unfortunately, the Framers did not include a similar provision for paramilitaries, a contingency they presumably did not foresee.  Well, here we are.

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*Not addressed: What to do about a well-armed and trained body of men starting to act menacing and then are suddenly deprived of their funds.  It is a prospect I am apprehensive about if we feed ICE into the woodchipper, but still better than the alternative.