[Editor’s Note from Ryan Goodman: On Thursday, I wrote about a provision of the National Defense Authorization Act, which stipulates that no funds may be “used for any bilateral military-to-military cooperation between the Governments of
the United States and the Russian Federation.” The law also provides the Secretary of Defense the authority to waive that limitation if he “determines that the waiver is in the national security interest of the United States.” I raised the prospect of a set of constitutional claims that the administration might argue renders these limitations and constraints invalid. For answers to those questions, I asked Bob Taylor who served the U.S. Department of Defense with great distinction as Principal Deputy General Counsel (2009-2017) and twice as Acting General Counsel (January-October 2013, July 2015-June 2016). he is currently Senior Counsel at Hogan Lovells. Taylor’s analysis follows.]

The constitutional allocation of authority over the military is shared between the Executive and Legislative Branches.  The President is the Commander in Chief, but Congress is granted the authority to declare war, to raise and support Armies, to provide and maintain a Navy, to make rules for the government and regulation of the land and naval forces, and – critically – “No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law.”  The Commander in Chief authority clearly does not empower the President to ignore or override each of these authorities assigned by our Constitution to the Congress.  The prohibition on “any bilateral military-to-military cooperation between the Governments of the United States and the Russian Federation” is a constitutionally permissible limitation on the availability of appropriations and probably as well a valid rule “for the government and regulation of the land and naval forces,” and the Commander in Chief must conform his conduct accordingly.  Under the statute, this prohibition may be waived if the Secretary of Defense, in coordination with the Secretary of State, determines that a waiver is in the national security interests of the United States, and so reports that to specified congressional committee.  Although Congress can specify the official or officials from whom it requires a determination, the President, as the head of the Executive Branch, can direct his cabinet officers to make such a determination based on his own determination.  If the Secretary disagrees with the President, he should refuse to make that determination, and he should submit his resignation.

During the Obama Administration, we respected the constitutional role of the Congress, even if in some cases we believed it made poor policy choices.  The preservation of our Constitution as our fundamental charter of government, and not just words on a page, depends on such respect.

Image: Gen. Joseph L. Votel, commanding general, U.S. Central Command, speaking to participants about the regional priorities addressed in the U.S. National Security Strategy, at the 2018 Senior Strategy Session–Arabian Peninsula/Levant in Arlington, Va, July 9, 2018 (U.S. Army photo by Sgt. Von Marie Donato)