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The Boland amendment and the power of the purse

BEFORE the White House leans too heavily on the notion that the Boland amendment was unconstitutional, it had best review the history and scope of Congress's power over the purse. If it does it will find little room for argument that Congress trenched upon sole presidential prerogatives when, in the Boland amendment, it prohibited the use of certain appropriated funds for support of the contras. The Constitution prohibits statutorily unauthorized expenditures by the president. Article I, Section 9, clause 7, confers on Congress exclusive power over the purse. It provides that ``no money shall be drawn from the treasury, but in consequence of appropriations made by law.''

This provision was framed against the backdrop of 150 years of struggle between the king and Parliament for control over the purse, often centering on military matters. In 1624, the House of Commons for the first time conditioned a grant of funds to the king. The Subsidy Act of that year prohibited the use of any military monies except for financing the Navy, aiding the Dutch, and defending England and Ireland. Two years later, Charles I attempted to wage war without popular support, but Parliament promptly denied him funds to conduct it.

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By the 1670s, parliamentary control over the purse was firmly established. Charles II insisted that the stationing of troops in Flanders was a prerogative of the Crown. Parliament, however, saw it differently: It enacted the Supply Act of 1678, requiring that funds granted be used to disband the Flanders forces.

Meeting in Philadelphia in 1787, the framers were well aware of the tradition of parliamentary power over the purse and its use to check unwanted military operations. ``The purse and the sword must not be in the same hands,'' George Mason said. James Madison considered it ``particularly dangerous to give the keys of the treasury, and the command of the army, into the same hands.'' Accordingly, the framers chose, in the words of Thomas Jefferson, to transfer the war power ``from the executive to the legislative body, from those who are to spend to those who are to pay.''

The Supreme Court has never struck down a congressional funding limitation as an impingement on presidential power. ``Congress alone controls the raising of revenues and their appropriations,'' Justice Robert Jackson wrote in the steel seizure case in 1952. Only it ``may determine in what manner and by what means they shall be spent for military and naval procurement.''

Congress thus relied upon its sole power over the purse to end the Vietnam war. Beginning in 1973, seven statutory funding limitations - worded much like the Boland amendment - prohibited the use of any appropriated funds for military or paramilitary operations in, over, or off the shores of North Vietnam, South Vietnam, Cambodia, and Laos. Though strongly objecting on policy grounds, the Nixon administration never challenged the constitutional power of Congress to cut off funds for the war.

Similarly, in 1975, when President Gerald Ford sent in the Marines to rescue the crew of the container ship Mayag"uez from the Cambodian military, his administration never argued that those funding limitations were unconstitutional - only that they were inapplicable.

It's doubly late in the game, therefore, to suggest that Congress lacked power to deny funds for aid to the contras. The President has a constitutional duty to take care that the laws be faithfully executed. Normally that duty attaches until a law is struck down by the courts. If the President believed that he was not bound to respect the Boland amendment, he should have said so when it was presented for his signature. Instead, his spokesmen said that the administration would honor the amendment - including its implicit prohibition against asking third countries to aid the contras.

Congressional abuse of the appropriations power can of course be hypothesized. Constitutionally, Congress could not cut off funds, say, to grant a certain pardon, or to recognize a certain country, or to negotiate a certain treaty. These are matters - among the very few matters - that fall within the President's exclusive constitutional power. Congressional interference with such activities is not permitted. But the possibility that a power may be abused is no argument against its existence. If actual abuse does occur, the line can be drawn there.

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No one has yet explained how the President could expend funds for contra support when no funds were available for that purpose. ``While Congress cannot deprive the President of the command of the army or navy,'' Justice Jackson wrote, ``only Congress can give him an army or navy to command.''

Only Congress, one might add, can give him the means to enable others to act in the Army's or Navy's place.

Michael J. Glennon is professor of law at the University of California, Davis, law school. He is co-author of ``United States Foreign Relations Law,'' and was legal counsel to the Senate Foreign Relations Committee from 1977-1980.

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