Somewhere in the basement of American constitutional law sits a forgotten clause that the Framers considered indispensable, Alexander Hamilton defended at length in The Federalist Papers, and virtually every constitutional law professor has stopped teaching. Article I, Section 8, Clause 12 — the “Armies Clause” or “Two-Year Clause” — provides that no appropriation of money to “raise and support Armies” shall be “for a longer Term than two Years.” It is, in the Framers’ conception, the military’s term limit: a structural guarantee that no single Congress could permanently fund a standing army, and that every House and every Senate would retain the power to influence the conduct and composition of any federal army by controlling its funding.
That guarantee, enshrined in the Constitution’s text, is now largely theoretical due to an obscure 1904 Solicitor General opinion that has proven to be a footnote to history — until now. The Framers’ fears are being realized: troops are being deployed in American cities, Congress has not cast a vote on the Iran War authorization, and President Trump signed into law a four-year military and ICE funding package buried in the One Big Beautiful Bill Act (OBBA) that insulates militarized immigration enforcement from congressional control. In a forthcoming article in the George Washington Law Review, we argue that it is time for all this to change; it is time to remember and revitalize the Two-Year Clause. Here’s why.
The Constitution Distinguishes the Army from the Navy
The Army has a two-year appropriations limit on “raising and supporting armies,” but none to “provide and maintain a Navy.” This was deliberate. The distinction between the land and naval forces reflected the threat to individual liberties that the Framers saw in a domestic standing army capable of turning inward against a population it was meant to protect. Madison’s argument in Federalist 41 was geographic and structural. America’s ocean separation from European powers meant that foreign threats arrived primarily by sea and a navy, he reasoned, “can never be turned by a perfidious government against our liberties.” Naval power could therefore go unconstrained; it faced outward by design. The Two-Year Clause supplied the complementary check for the land force: the army alone posed the domestic tyranny risk that colonial experience had confirmed. Three delegates declined to sign the Constitution, and all three mentioned the absence of checks against standing armies in their criticisms, with one delegate criticizing the “want of limitation to the standing army.”
The Two-Year Clause worked as designed for over a century. Early Congresses funded the Army annually, consolidating everything — pay, cannons, clothing, equipment, ordnance, horses — into a single short-term enactment. Long-term military procurement contracts were possible, but the funds to honor them had to be appropriated biennially, as is still routinely done in federal grant administration today. The constitutional architecture was deliberate: born from colonial experience with British standing armies, refined through the near-catastrophe of Shays’s Rebellion, and defended by Federalists and Anti-Federalists alike as the essential safeguard against military tyranny.
How a Three-Page Opinion Buried the Two-Year Clause
That all changed in 1904 when Solicitor General Henry Hoyt issued a three-page opinion that quietly eviscerated the Clause. Hoyt adopted what he called a “strict” reading of “raise and support,” concluding that appropriations to equip or arm the Army fell outside the two-year limit. Under his interpretation, the Clause applied essentially only to military pay — leaving ammunition, weapons systems, vehicles, construction, fuel, and procurement entirely exempt from the two-year ceiling.
Hoyt’s opinion cited no founding-era dictionaries, no early statutes, and no relevant legislative history. This was a significant omission. It was, in short, constitutional interpretation without the tools constitutional interpretation requires. As a result, the opinion is difficult to reconcile with the Clause’s text, founding-era usage, and early practice.
Take one example. Founding-era dictionaries defined “support” broadly — to “maintain,” to “supply with what is wanted,” to “aid.” The Articles of Confederation used the phrase “raise, clothe, arm, and equip” nearly identically to the Constitution’s “raise and support.” Early Congresses treated the clause as covering all Army-related expenditures, including ordnance and equipment, in consolidated annual appropriations.
The pre-World War II era Lend-Lease debates of 1941, long misread by the Government Accountability Office as congressional endorsement of Hoyt’s view, actually tell the opposite story. While the majority committee reports invoked Hoyt’s opinion, Republican members filed their own minority report calling the interpretation unconstitutional. The report stated that the “power requested is too much to give any money at a time when the country is at peace,” asserting that the revolving fund violated the Two-Year Clause. They succeeded in securing a floor amendment adding a two-year sunset to the relevant provisions of the Lend-Lease Act — a direct legislative rebuke of Hoyt, not an endorsement of it. Yet an Attorney General opinion ratified Hoyt’s opinion in 1948, dismissing the Two-Year Clause’s application to the newly formed Air Force. The permanent standing army that emerged from World War II entrenched what Hoyt had already enabled. By the time President Eisenhower left the presidency in 1961, he was warning about the military-industrial complex, enabled by congressional interest in military appropriations for their respective districts.
Why the Clause Is Urgently Relevant Today
For decades after Hoyt, the clause’s near-obsolescence was tolerable. Congress still appropriated the vast majority of military funds annually in connection with the National Defense Authorization Act process. Presidential unilateralism was constrained. Domestic military deployments were rare. The spirit of the clause survived even if the letter did not.
That era is over.
In 2025, the One Big Beautiful Bill Act appropriated $156 billion in four-year military funding — more than doubling the existing stock of constitutionally non-compliant appropriations and reducing the share of compliant funding from roughly 83% to 68% (by our rough estimation). The unprecedented move generated bipartisan tension, but the law passed anyway, largely unnoticed outside the Beltway.
The consequences are concrete. For example, military immigration operations like those at Fort Bliss, where undocumented immigrants are being detained by the thousands, were funded on a four-year runway through September 2029. That means the next House — even one that commands a clear majority opposed to the program — will lack the appropriations lever to shut it down. The Two-Year Clause was designed precisely to prevent this: to ensure that no Congress could bind its successors on the question of whether to maintain a standing army, or to extend military functions into domestic territory.
Meanwhile, the Trump Administration has invoked novel authorities to deploy active-duty troops in California, Oregon, Illinois, and the District of Columbia. Operation Metro Surge — the DHS-led deployment of over 3,000 federal agents into Minneapolis — has prompted 20 state attorneys general to argue that the operation is not ordinary law enforcement but a militarized assault on state sovereignty. The question of whether masked ICE agents, when deployed at this scale and in this manner, function as a constitutional “army” is not frivolous. It is, in fact, precisely the kind of question a revived Two-Year Clause would force courts to confront. Scott Levy and Kevin McNellis have persuasively argued in these pages that the Two-Year Clause remains a forgotten check on ICE, CBP, and the Pentagon. We agree. After all, the Constitution does not define “armies,” and founding-era usage suggests the term encompassed any organized body of armed men under federal command and control deployed for coercive purposes. Whatever it might be labeled by Congress or the President, an operation involving thousands of armed federal agents, with military-style logistics and equipment, under unified command, and exercising detention authority against a civilian population is a close fit with the unchecked federal “armies” the Framers feared.
The Structural Case for Revival
The strongest affirmative case for revival is structural. The Two-Year Clause is unusual among constitutional checks in three respects. First, it runs against the legislature, not the executive — it limits what one Congress may do to its successors. Second, the Two-Year Clause is the only time limit placed on Congress’s appropriation power within the Constitution. Third, the Two-Year Clause is uniquely resistant to “historical gloss” — by its terms, no Congress can surrender the power it confers on future Congresses. A practice of violating the clause cannot constitutionally entrench itself.
Revival would do several things simultaneously. It would protect the existing norm of annual military appropriations against further erosion — particularly the emerging threat of massive reconciliation packages that bypass the NDAA process entirely. It would eliminate the executive branch’s “slush funds” of long-term and permanent military appropriations that allow presidents to fund disfavored operations even when Congress tries to cut off funding. And it would reinvigorate the Clause’s federalism dimension: forcing periodic congressional votes on domestic military deployments means senators and representatives must defend those deployments to their constituents before the next election.
National security objections have stood in the way of honoring other constitutional checks, like the Declare War Clause, but such objections are inapposite when it comes to the Two Year Clause. The Framers left ample room for Congress to accommodate emergency spending through contingency transfer authorities — appropriating funds in advance for unforeseen emergencies while preserving civilian control in the medium term. Today’s section 8005 transfer authority does exactly that, and it is fully compliant with the Two-Year Clause because it is re-authorized annually. Revival would not touch operational decision-making; it would reshape the political conditions under which that decision-making occurs.
The fiscal costs of revival are real but bounded. Forcing biennial appropriations for procurement would likely impose a “disappropriation premium” — contractors pricing risk into their bids. But programs that operate successfully based either on biennial contracts or long-term contracts dependent on biennial appropriations are to be found across government. Based on these programs, we conservatively estimate that the outer bound of the fiscal cost of revival is roughly $20.3 billion annually, approximately 2.4% of total defense spending. That figure could be substantially offset if revival brought even modest reductions in the well-documented inefficiency and political pork that characterizes long-term defense contracting — including the $2 trillion Joint Strike Fighter program that has delivered aircraft increasingly late while its contractors collected hundreds of millions in incentive fees.
How Revival Could Happen
Revival will probably not arrive through a single blockbuster ruling. The Roberts Court has shown reluctance to insert itself into fast-moving spending disputes, particularly those implicating military operations. But constitutional safeguards can return through quieter channels.
Several pathways exist. The wave of litigation over the Trump Administration’s termination of defense contracts and grants presents a vehicle for challenging whether damages are properly payable from the permanent Judgment Fund — a permanent, uncapped appropriation Congress created in 1956 to satisfy judgments against the United States without requiring further legislative action. Because the Judgment Fund acts as an indefinite appropriation, it may well violate the Two-Year Clause as applied to Army support contracts.
Environmental citizen suits have had some success in challenging the diversion of already-appropriated funds during the first Trump Administration; a similar challenge could be brought today. Courts considering challenges to large-scale ICE deployments could apply the constitutional avoidance canon, construing the statutes authorizing those operations narrowly, so as to sidestep the serious constitutional question of whether ICE, when deployed at scale, is functioning as an “army” that must be funded within the Two-Year Clause’s limits. Finally, a future president who inherits four-year funding for domestic deployments she opposes could invoke the Two-Year Clause as a legal basis for impoundment — putting the executive branch in the unusual position of defending the clause’s original meaning in court.
The Deeper Stakes
The Framers were not naive about what they were doing. They had lived under British standing armies, declaring Independence precisely because of British military overreach in colonial Boston and beyond. They had watched Shays’s Rebellion expose the dangers of a civilian uprising coupled with a too-powerless Congress to quell the rebellion. They designed the Two-Year Clause not as a technical appropriations rule but as a structural guarantee: that the army of the United States would remain, as one Federalist put it, “the army of the people.” The OBBA’s $156 billion four-year appropriation, the Army’s presence in American cities, the rapid militarization of federal law enforcement, and the emergence of “war without soldiers” have made the Clause’s obsolescence a live constitutional problem, not a historical footnote.
Professors Bruce Ackerman and Oona Hathaway have observed that most constitutional experts have never given the Two-Year Clause a moment’s thought, “consigning it to the junk heap of history.” The circumstances that made that neglect tolerable — congressional dominance of annual military appropriations, restraint in domestic military deployments, legislative-executive cooperation on spending, and the military’s dependence on human soldiers as the core of its land-based fighting force — have now dissolved or are in the process of dissolving.
The OBBA’s $156 billion four-year appropriation did not happen in secret. It passed in plain sight, debated on the Senate floor, signed by the President, and immediately challenged in the courts — and still the Two-Year Clause went unmentioned.
The Clause is still there. Its text hasn’t changed. What changed was attention — and attention, unlike doctrine, can be recovered.
The Framers gave Congress not just the power but the obligation to decide, every two years, whether the United States should maintain a standing army, and how it would use that army. That decision has been made silently, by default, by the accretion of long-term appropriations since Hoyt’s 1904 opinion. Immigrants are detained on military bases funded through 2029. Troops are now in American cities. Federal agents deploy at brigade scale against American neighborhoods. The questions the Framers insisted every newly-elected Congress answer out loud — Do we still need this army? For what? For how long? Against whom? — are no longer hypothetical. They are being answered right now — by inertia, by a three-page 1904 opinion, and by a reconciliation bill that most Americans never paid attention to. The Two-Year Clause cannot answer them on its own. But it can force Congress to stop pretending the questions don’t exist. The Framers built that requirement into the Constitution’s text. It is still there. The only thing missing is the will to use it.
