How Congress Ended a War with the Purse, the Case-Church Story of 1973

Nobody ever filled a stadium to cheer an appropriations bill. Nobody has put a continuing resolution on a T-shirt. The power of the purse is the least glamorous clause in the Constitution, a piece of accounting wedged in among the powers of taxation, and it is also the one that, in the summer of 1973, ended American combat in Southeast Asia without a single vote to declare, or to end, a war.

That is the proposition of this post: Article I's spending power is a war power, the most practical one the legislature has, and the story of how it was used between 1970 and 1975 is both the clearest proof of the point and a cautionary tale about what happens when Congress uses it, or fails to use it, at the wrong moment. A conservative who believes in the Constitution has to look at that story squarely, with the credit and the blame distributed where they belong.

The text and the theory

Start with the clauses. Article I, section 9, clause 7 says: "No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law." Article I, section 8 gives Congress the power to raise and support armies, to provide and maintain a navy, and to make rules for their government. And it adds a limit that the Framers inserted deliberately: no appropriation for the army may be for a term longer than two years. The Founders wanted the legislature to renew, regularly and in the open, the money that keeps an army in the field.

Madison explained the theory in Federalist No. 58. The power over the purse, he wrote, may in fact be regarded as the most complete and effectual weapon with which any constitution can arm the immediate representatives of the people for obtaining a redress of every grievance, and for carrying into effect every just and salutary measure. That is the Founders' answer to the question of how a legislature restrains an executive who is Commander in Chief. It does not need to seize the army. It can refuse to pay for it.

The first attempt: Cooper-Church, 1970

The story begins with an escalation. On April 30, 1970, President Nixon announced that American and South Vietnamese forces had crossed into Cambodia to destroy Communist sanctuaries. The announcement provoked protests, including the campus demonstrations in the first days of May that ended in deaths at Kent State, and it provoked Congress.

Two senators, John Sherman Cooper, a Kentucky Republican, and Frank Church, an Idaho Democrat, offered an amendment to a foreign military sales bill. It would have barred funds for American ground troops and advisers in Cambodia after June 30, 1970. The Senate adopted it on June 30, 1970, by 58 to 37, an unprecedented Senate vote to restrict the President's conduct of a war in progress. The House tabled it, 237 to 153, and the version that became law in January 1971 was weaker: it barred funds for ground troops and advisers in Cambodia, but the troops had already been withdrawn from Cambodia on schedule.

Notice two things. The amendment was bipartisan; it was cosponsored by a Republican and a Democrat, and it drew support from senators of both parties. And the legal mechanism it used was a limit on funds, not a declaration. The Senate was feeling its way toward a power it had not exercised in earnest.

The cutoff: Case-Church, 1973

Now to the main event. By January 1973, the Paris Peace Accords had been signed, on January 27. American combat troops were withdrawn by the end of March, and American prisoners of war were returned. But the war was not over for the United States. American bombers continued to strike targets in Cambodia and, to a lesser extent, in Laos, in support of governments fighting the Communists, and there was no statute that clearly authorized them.

Senator Clifford Case, a Republican from New Jersey, and Senator Church, again, offered an amendment that would cut off funds for American military activity in and over Indochina. It was a short, clear provision. Roughly, it stated that none of the funds appropriated by the bill, or by any prior law, could be spent to support, directly or indirectly, combat activities by United States forces in or over Cambodia, Laos, North Vietnam and South Vietnam, or off their shores. The text used the formula of the power of the purse precisely: it did not order the President to withdraw, did not claim to direct operations, and did not name the army. It said that the money would not be there.

Congress attached the language to must-pass legislation, and the President resisted. On June 27, 1973, Nixon vetoed a bill containing the cutoff. A compromise was reached: the funding would continue until August 15, 1973, and not a day after. Nixon signed the compromise on July 1. The bombing of Cambodia stopped on August 15, 1973.

The significance of that date is hard to overstate. It was arguably the first time in American history that Congress, by cutting off money, had compelled the end of a military operation that the President wished to continue. The same year saw the end of the draft, a conservative reform told in Ending the Draft in 1973 Was a Conservative Idea, and It Worked, so 1973 marks the point at which America's way of raising and using an army changed. And it did so without invoking a constitutional crisis, without impeachment, and without the use of the Senate's treaty power. It simply declined to pay.

A few months later, in November 1973, Congress passed the War Powers Resolution over Nixon's veto. It required the President to consult Congress, report within forty-eight hours of introducing forces into hostilities, and withdraw them within sixty days unless Congress authorized them. The two measures belong together: Case-Church was the purse, and the War Powers Resolution was the procedure. For what became of the resolution in practice, and what Congress did when the 2001 authorization stretched it, see Sixty Words Passed in 2001 Still Carry America's Wars, and That Is a Problem.

The second cutoff: Saigon, 1975

The part of the story that conservatives remember is not 1973. It is 1975.

After the Paris Accords, the United States continued to give military aid to South Vietnam. The aid was the thing that the Accords allowed: replacement of equipment, in kind, for the South's army. But after the Watergate scandal began to destroy Nixon, and after the oil shock of late 1973 and a recession, Congress's appetite for the war collapsed. In fiscal 1975 Congress cut the administration's request for aid to South Vietnam sharply, to a figure in the neighborhood of 700 million dollars, and with the restrictions on American military activity from the Case-Church Amendment in force, the Executive had no way to supply by other means. Nixon resigned on August 9, 1974.

In early 1975, North Vietnam launched a large conventional offensive. In January it took the province of Phuoc Long; in March it captured Ban Me Thuot, in the central highlands, and the South Vietnamese army began a retreat that turned into a rout. President Ford asked Congress for a supplemental appropriation of roughly 722 million dollars in military aid. In an address to a joint session of Congress on April 10, 1975, he pressed the case. Congress did not provide the money.

Phnom Penh fell to the Khmer Rouge on April 17, 1975. Saigon fell on April 30, after a hasty helicopter evacuation of Americans and some South Vietnamese from the embassy and other sites in Operation Frequent Wind. A week earlier, in a speech at Tulane University on April 23, Ford had told his audience that the war was finished as far as America was concerned.

The hard question

Here is the question that anyone who defends the purse as a war power has to answer. Did Congress use the power wisely?

The answer divides conservatives, and each side has a case.

The case that Congress was right. The nation had spent more than a decade in the war. More than 58,000 Americans had died. The original commitment had been made by the executive, escalated by the executive, and justified by a resolution, the Gulf of Tonkin Resolution of 1964, that Congress repealed in 1971. The American people, after the Paris Accords, believed the war was over, and the troops were home. The Constitution commits the decision to continue or to stop a war to the people's representatives, and Congress, by refusing to appropriate, was doing what Madison's Federalist No. 58 said it should. Moreover, the argument goes, no amount of money could have saved a government that did not have the support of its own army and its own people.

The case that Congress was wrong. The Accords, signed in January 1973, rested on an understanding that the United States would continue to supply the South and respond if the North broke the agreement. The North did break it: its forces remained in the South, and its final offensive in 1975 was a conventional invasion by armored divisions, supplied by the Soviet Union and China. The Americans who negotiated the Accords, on this view, had made a promise that Congress then declined to keep, and the cost fell on millions of South Vietnamese, many of whom were later imprisoned, driven to flee, or killed. In Cambodia the Khmer Rouge took power and carried out a mass slaughter. The record of what followed in Cambodia is among the most terrible in the history of the century. A Congress that exercises its power over the purse without any plan for the consequences, say these critics, has exercised it recklessly.

Both of those cases are made by serious people. I will say what I think, with the caveat that the question is one where historians still disagree.

First, the power was legitimate. There is no doubt of the constitutional question. Article I gives Congress the money. Those who argued in 1973 that the cutoff was an unconstitutional infringement on the Commander in Chief's powers were wrong, and the argument has not improved with age.

Second, the legitimacy of the power does not settle the wisdom of its use. A Congress that has the right to cut off funds also has the duty to think about what follows. The record suggests that in 1975 the question was decided less by strategic analysis than by exhaustion. The members who voted against the aid request were not, for the most part, men who wanted the outcome that followed. They wanted to be done. That is a human motive, and a poor basis for a strategic decision.

Third, the lesson is about timing and responsibility. If Congress is going to end a war by the purse, it should do so in a way that takes responsibility for the consequences, by voting in the open on a clear question, with a plan for the end, and not by a succession of riders and cuts that let each member say he never voted to lose anything. A war that began in a fog of authorization ended in a fog of appropriation.

Four points for the present

1. The purse is a real war power, and Congress should use it deliberately. If Congress disagrees with a military operation, the Constitution gives it a remedy that does not depend on the President's cooperation. If Congress agrees with an operation, it should say so in the text of an authorization and fund it.
2. Authorization and appropriation belong together. Fighting under a vague authorization with an open-ended appropriation puts Congress in the position of the spectator. The Founders wanted it in the position of the principal.
3. Pay attention to the second half of a war. The decisions that matter most are often those about how a war ends, and the voters should ask their representatives what the exit plan is as closely as they ask about the entry.
4. The Pentagon's budget is the instrument of control. The routine annual process of authorization and appropriation, followed in Follow the Defense Bill From Markup to Signing, a Citizen's Guide, is the means by which a legislature governs an army. A Congress that treats it as a formality has handed away its leverage.

Compare the Weinberger tests in The Weinberger Doctrine Set Six Tests Before Sending Troops to Fight, which were written in part as a reply to this experience: do not send troops without a clear objective, and do not leave them there without public support.

The Founders' view

The Framers did not think the purse was merely convenient. They thought it was the foundation of a free government's control over the sword. In the debates over the Constitution, delegates worried about a standing army; the answer was to leave to Congress the money, with the two-year limit on army appropriations, so that a standing army could never become a permanent establishment without the regular consent of the representatives. The concern was not a theoretical one. They had read English history, in which the Parliament's control of the king's money had been the safeguard of the nation's liberties, and they had lived through the Revolution against a king who tried to govern without it.

The Case-Church story shows that the safeguard works. It also shows that it is only as good as the judgment of the people who use it. A safeguard that works, in the hands of a legislature that is not paying attention to what happens afterward, can produce results that no one intended and no one wishes to own.

The case in brief

1. Article I, section 9 forbids spending without an appropriation by law, and Federalist No. 58 calls the power of the purse the most complete and effectual weapon of the people's representatives.
2. The Cooper-Church fight of 1970 began the use of the power against an ongoing war, and the Case-Church Amendment of 1973, with its compromise date of August 15, 1973, ended American combat in Indochina by cutting off the money.
3. In 1974 and 1975 Congress cut aid to South Vietnam and refused a further request, and Saigon fell on April 30, 1975.
4. The power was constitutional; whether it was used wisely is still disputed, and the fair verdict is that Congress should take responsibility for the consequences when it ends a war.
5. The lesson is that the legislature should vote in the open on war and its end, and use the purse deliberately.

What you can do: read your own representative's votes on the most recent defense appropriations bill, and write to ask what that member believes the exit condition should be for each overseas operation the bill funds.