The Stakes in the Coming Fight Over Appropriations for the Iran War
Congress will face accountability for the war
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The Trump administration claims the Iran conflict that began Feb. 28 has cost approximately $29 billion so far. That number has been challenged, and overall the administration has been opaque on how it has funded the war to date or how long the funding will last. Secretary of Defense Pete Hegseth on Tuesday dodged questions on when the Department of Defense would seek funding for the Iran war going forward. But it probably needs to happen soon.
When DOD seeks a supplemental appropriation, it will be an important moment for Congress to weigh in on, and be accountable for, the scope and legitimacy of the war. Such funding could count as an authorization for the conflict. It could also be a vehicle to constrain the administration’s conduct of the war, or (though very unlikely) to stop it.
The Kosovo Precedent
In 1999, the Office of Legal Counsel reasoned that Congress in funding the Kosovo conflict had clearly intended to authorize that conflict. That “specific authorization” stopped the 60-day clock which, under Section 5(b)(1) of the War Powers Resolution, would have required President Clinton to terminate the use of force.
OLC distinguished Section 8(a)(1) of the WPR, which says that congressional authorization for uses of force “shall not be inferred . . . from any provision contained in any appropriation Act, unless such provision specifically authorizes the introduction of United States Armed Forces into hostilities . . .” It reasoned that “section 8(a)(1) does not bar later Congresses from authorizing military operations through appropriations,” because the Constitution forbids an earlier Congress from binding a later one.
I find this basic reasoning—which is much more elaborate in the opinion—plausible. But whether plausible or not, it is how the executive branch reads war-related appropriations statutes. Congress should keep these principles in mind when it funds Iran-related military operations going forward.
The broader point is that it will be hard for Congress to avoid weighing in on the Iran conflict’s domestic legality if it funds that conflict. I suppose Congress could (a) appropriate for future military operations in Iran, and (b) state clearly that the appropriation does not count as an authorization for those operations within the meaning of Section 5(b)(1).
The legal impact of such a combination would be that the president would have funding to continue the war under his Article II power (which Congress would have blessed, not in the sense of a statutory “authorization,” but rather in the sense of paying for and in some sense supporting the unilateral presidential action.) It would also mean that the WPR clock would be in play, depending on the start date of the relevant conflict.
The Politics of Appropriation Now
Members of Congress who vote to fund the Iran conflict may be able to avoid technical legal responsibility for the conflict. But will still be on the hook politically for the war—almost certainly to a greater degree than those same members have been in voting against efforts to halt the war.
The votes to stop the war have been very close—50-49 in the latest Senate vote, and 212-212 in the latest House vote. With Republican opposition to the deeply unpopular war growing, and with midterm elections nearing, it seems doubtful that the administration has the votes in both houses of Congress to fund an indefinite and unqualified military conflict with Iran. Since the administration needs the money to continue its military action, those in Congress who want to constrain the administration to some degree will have leverage to include conditions or restraints.
The conditions or restraints could take many forms.
They might at a minimum require the president, as in the Kosovo appropriations, to report to Congress on the current state of the conflict, including a clear account of national security objectives, which the administration has to date dodged. Senator Murkowski is shopping a similarly weak set of conditions for the Iran conflict that would require only “metrics for success, notice of any changes in objectives, and an exit criteria.”
But Congress has used the appropriations process to impose stricter conditions on presidential uses of force. For example, a 1973 Supplemental Appropriations Act provided:
None of the funds herein appropriated under this Act may be expended to support directly or indirectly combat activities in or over Cambodia, Laos, North Vietnam and South Vietnam or off the shores of Cambodia, Laos, North Vietnam and South Vietnam by United States forces, and after August 15, 1973, no other funds heretofore appropriated under any other Act may be expended for such purpose.
And Congress after the unilateral introduction of U.S. troops in Somalia eventually “approved” that use of the troops for defined purposes, but only on the condition that appropriated funds could be used for those purposes for a defined and limited time period.
None of this is easy. It is always hard to get restrictions or wind-downs on wars through Congress, especially in the midst of a conflict, even when a “ceasefire” is in place. Congress must also deal with vetoes or threatened vetoes. And presidents in the past have claimed residual constitutional authority, despite the conditions, in signing statements. I will leave these issues for another day, if we get there.
The bottom line for now: The Trump administration cannot indefinitely fight a war with Iran without new appropriations. It needs affirmative congressional action. And it will be challenging in this election year for the administration to get funding from Congress for such a controversial and consequential unilateral war without accepting at least some conditions or restraints.
In this sense the appropriations process flips the usual burden of inertia against presidential unilateralism and forces Congress to take a politically harder vote and assume a bit more responsibility for the conflict. This is a dim, but only dim, version of the Founders’ design.
This post was edited after publication to reflect the most recent House vote.
I thank Tia Sewell for editorial assistance.