b'Authorization for Continuing Hostilities in Kosovo\nPub L. No. 106-31, the em ergency supplem ental appropriation for m ilitary operations in Kosovo,\nconstituted authorization for continuing hostilities after the expiration of sixty days under section\n5(b) o f the W ar Powers Resolution.\n\nDecember 19, 2000\nM e m o r a n d u m O p in io n f o r t h e A t t o r n e y G e n e r a l\n\nThis memorandum memorializes and explains advice we provided to you in\nMay of 1999 regarding whether Pub. L. No. 106-31, 113 Stat. 57 (May 21, 1999),\nthe emergency supplemental appropriation for military operations in Kosovo, con\xc2\xad\nstituted authorization for continuing hostilities after the expiration of sixty days\nunder section 5(b) of the War Powers Resolution, Pub. L. No. 93-148, 87 Stat.\n555 (1973) (codified at 50 U.S.C. \xc2\xa7\xc2\xa7 1541-1548 (1994)) (the \xe2\x80\x9c WPR\xe2\x80\x9d ). This\nOffice advised that the appropriation did constitute such authorization. Subse\xc2\xad\nquently, the district court for the District of Columbia and the Court o f Appeals\nfor the D.C. Circuit decided a lawsuit brought against the President by thirtyone members of Congress, who claimed that the President had violated the Con\xc2\xad\nstitution and the WPR by involving the United States in hostilities in Kosovo\nwithout congressional authorization. Neither the district court nor the court of\nappeals reached the merits of the plaintiffs\xe2\x80\x99 claims. The district court dismissed\nthe suit for lack of standing, Campbell v. Clinton, 52 F. Supp. 2d 34 (D.D.C.\n1999), and the D.C. Circuit affirmed the dismissal, also on standing grounds, 203\nF.3d 19 (D.C. Cir.), cert, denied, 531 U.S. 815 (2000).\nSection I o f this memorandum summarizes the relevant provisions of the WPR,\nincluding section 8(a)(1), which provides that authorization may not be inferred\nfrom appropriation laws that do not specifically refer back to the WPR. Section\nII shows that the relevant case law, historical practice, and basic principles of\nconstitutional law lead to the conclusion that appropriation laws may authorize\nmilitary combat. Section III shows that section 8(a)(1) does not bar later Con\xc2\xad\ngresses from authorizing military operations through appropriations (an interpreta\xc2\xad\ntion that would be unconstitutional), but instead has the effect of creating a back\xc2\xad\nground principle that may inform the interpretation of later Acts of Congress.\nSection IV shows that by enacting Pub. L. No. 106-31, Congress intended to\nenable the President to continue U.S. participation in Operation Allied Force.\nFinally, Section V presents this Office\xe2\x80\x99s conclusion that, even taking account of\nthe background principle established by section 8(a)(1), Pub. L. No. 106-31\nauthorized the President to continue military operations in Kosovo.1\n1Previous Administrations have expressed different views concerning the constitutionality of the W PR. Compare\nPresident Nixon\xe2\x80\x99s Veto o f the War Powers Resolution, H.R. Doc. No 93-171, at 1 (1973) (calling \xe2\x80\x9c unconstitutional\xe2\x80\x9d\nContinued\n\n327\n\n\x0cOpinions o f the Office o f Legal Counsel in Volume 24\n\nI. The War Powers Resolution and Authorization o f Hostilities\n\nThe W PR is framework legislation that sets forth procedures for reporting and\nauthorizing hostilities. The statute begins with a congressional declaration of pur\xc2\xad\npose:\nIt is the purpose of this chapter to fulfill the intent of the framers\nof the Constitution of the United States and insure that the collec\xc2\xad\ntive judgment of both the Congress and the President will apply\nto the introduction of United States Armed Forces into hostilities,\nor into situations where imminent involvement in hostilities is\nclearly indicated by the circumstances, and to the continued use\nof such forces in hostilities o r in such situations.\n50 U.S.C. \xc2\xa7 1541(a).2 This section summarizes the most important provisions of\nthe statute.\nThe \xe2\x80\x9c core\xe2\x80\x9d of the WPR \xe2\x80\x9c resides in sections 4(a)(1) and 5(b).\xe2\x80\x9d John Hart Ely,\nWar and R esponsibility 48 (1993).3 Section 4(a)(1) of the WPR requires the Presi\xc2\xad\ndent to submit a report to Congress whenever, \xe2\x80\x9c [i]n the absence of a declaration\nof w ar,\xe2\x80\x9d United States Armed Forces are introduced \xe2\x80\x9c into hostilities or into situa\xc2\xad\ntions where imminent involvement in hostilities is clearly indicated by the cir\xc2\xad\ncumstances.\xe2\x80\x9d 50 U.S.C. \xc2\xa7 1543(a)(1). Section 5(b) requires the President to\n\xe2\x80\x9c terminate any use o f the United States Armed Forces with respect to which [a]\nreport [under section 4(a)(1)] was submitted (or required) [within 60 days there\xc2\xad\nafter]\xe2\x80\x9d unless the Congress takes certain enumerated actions to authorize con\xc2\xad\ntinuing combat or \xe2\x80\x9c is physically unable to meet as a result of an armed attack\nupon the United States.\xe2\x80\x9d 50 U.S.C. \xc2\xa7 1544(b). The 60 day period may be extended\nthe provision in the W PR that \xe2\x80\x9c would automatically cut off certain authorities after sixty days unless the Congress\nextended them \xe2\x80\x9d ), with \xe2\x80\x9c Ask President Carter\xe2\x80\x9d . Rem arks Dunng a Telephone Call \xe2\x80\x94 in Program on the CBS Radio\nNetwork,\xe2\x80\x9d 1 Pub Papers o f Jimmy Carter 324 (M ar 5, 1977) (noting that W PR is an \xe2\x80\x9c appropriate reduction\xe2\x80\x9d\nin the President\xe2\x80\x99s power), Presidential Power to U se the Arm ed Forces Abroad Without Statutory Authorization,\n4 A Op. O.L.C. 185, 196 (1980) ( \xe2\x80\x9c We believe that Congress may, as a general constitutional matter, place a 60day limit on the use o f our armed forces as required by the provisions of \xc2\xa7 1544(b) of the Resolution \xe2\x80\x9d ). In light\nof our conclusion that Congress lawfully authonzed continued hostilities beyond the 60-day statutory limit, we have\nno occasion to consider any constitutional arguments that might be made.\n2The W PR had its origins in the Vietnam War. See 119 Cong. Rec. 1394 (1973) (statement of Senator Javits)\n( \xe2\x80\x9c [WPR was] an effort to leam from the lessons o f the last tragic decade of war in Vietnam which has cost our\nNation so heavily in blood, treasure, and morale. T he War Powers Act would assure that any future decision to\ncommit the U nited States to any warmaking must be shared in by the Congress to be lawful \xe2\x80\x9d ); see also Thomas\nF. Eagleton, War and Presidential Power 107-123 (1974) (discussing background of WPR in Vietnam War). For\ndiscussion o f initial attempts to enact war powers legislation, see Thomas F. Eagleton, Congress and the War Powers,\n37 Mo. L. Rev 1, 18-20 (1972); W illiam B. Spong. Jr., Can Balance Be Restored in the Constitutional War Powers\no f the President and C ongress7, 6 U Rich L Rev 1, 18-28 (1971). Senator Eagleton introduced a war powers\nbill into the Senate in 1971 and played a prominent role in the Senate debates over war powers legislation Senator\nSpong, in conjunction with Senators Javits and Eagleton, managed the Senate War Powers legislation for the Foreign\nRelations Com m ittee See Eagleton, supra, at 134\n3 We have outlined the general structure of the W ar Powers Resolution in Overview o f the War Powers Resolution,\n8 Op. O L.C. 271 (1984).\n\n328\n\n\x0cAuthorization fo r Continuing Hostilities in Kosovo\n\nfor an additional 30 days if the President certifies to Congress that \xe2\x80\x9c unavoidable\nmilitary necessity respecting the safety of United States Armed Forces requires\nthe continued use of such armed forces in bringing about a prompt removal of\nsuch forces.\xe2\x80\x9d Id. Thus, when a report under section 4(a)(1) is filed (or required\nto be filed), section 5(b)\xe2\x80\x99s 60 day (or, in appropriate circumstances, 90 day)\n\xe2\x80\x9c clock\xe2\x80\x9d begins to run.4\nUnder section 5(b), Congress may, within the 60 day period, authorize con\xc2\xad\ntinuing hostilities after that period by any one of three methods: (1) by a declara\xc2\xad\ntion of war; (2) by enacting a \xe2\x80\x9c specific authorization for such use of United States\nArmed forces\xe2\x80\x9d ; or (3) by \xe2\x80\x9c extend[ing] by law such sixty-day period.\xe2\x80\x9d 50 U.S.C.\n\xc2\xa7 1544(b). The section thus functions essentially as a burden-shifting device. As\nJudge Joyce Hens Green has observed:\n[T]he automatic cutoff after 60 days was intended to place the bur\xc2\xad\nden on the President to seek positive approval from the Congress,\nrather than to require the Congress positively to disapprove the\naction, which had proven so politically difficult during the Vietnam\nwar. To give force to congressional power to declare war, Presi\xc2\xad\ndential warmaking would not be justified by congressional silence,\nbut only by a congressional initiative . . . .\nCrockett v. Reagan, 558 F. Supp. 893, 899 (D.D.C. 1982), o ffd , 720 F.2d 1355\n(D.C. Cir. 1983).5 In addition to requiring the President to seek approval for con\xc2\xad\ntinuing hostilities, section 5(b) is also designed to hold Congress responsible for\nthe ultimate decision over war and peace.6\n4 The full text of section 5(b) reads as follows1\nWithin sixty calendar days after a report is submitted or is required to be submitted pursuant to section\n1543(a)(1) of this title, whichever is earlier, the President shall terminate any use of United States Armed\nForces with respect to which such report was submitted (or required to be submitted), unless the Congress\n(1) has declared war or has enacted a specific authorization for such use of United States Armed Forces,\n(2) has extended by law such sixty-day penod, or (3) is physically unable to meet as a result of an armed\nattack upon the United States Such sixty-day penod shall be extended for not more than an additional\nthirty days if the President determines and certifies to the Congress in w nting that unavoidable military\nnecessity respecting the safety o f United States Armed Forces requires the continued use of such armed\nforces in the course o f bnnging about a prompt removal o f such forces\n50 U S.C \xc2\xa7 1544(b)\n5 See also S Rep. No 93-220, at 28 (J973) ( \xe2\x80\x9c The way the bill is constructed\n. the burden for obtaining\nan extension under section 5 rests on the President He must obtain specific, affirmative, statutory action by the\nCongress in this respect.\xe2\x80\x9d ), War Powers Legislation, 1973* Heanngs Before the Senate Comm on Foreign Relations,\n93d Cong 243 (1973) (statement by Senator Jacob K. Javits) ( \xe2\x80\x9c The Senate bill, in Section 5 particularly, is very\ndeliberately constructed so as to throw the burden of proof on the President to convince the Congress, with respect\nto the question o f authorizing an extension of his \xe2\x80\x98emergency\xe2\x80\x99 involvement of the Armed Forces in hostilities. I\nthink it is essential, when the President has acted in the absence o f a declarauon of war, that the burden be on\nhim to convince the Congress that he has acted in response to a bona fide emergency \xe2\x80\x99\xe2\x80\x99); 119 Cong Rec. 24,541\n(1973) (remarks o f Sen. Javits).\n6See S. Rep. No 93-220, at 19 (WPR \xe2\x80\x9c would not have been necessary if Congress had defended and exercised\nits responsibility in matters of war and peace\xe2\x80\x9d ); 119 Cong Rec. 24,544-45 (1973) (statement of Sen. Stennis) ( \xe2\x80\x9c [l]f\nthis bill becomes law it will signal that the members of Congress are willing to assume a heavy duty \xe2\x80\x94 the duty\nContinued\n\n329\n\n\x0cOpinions o f the Office o f Legal Counsel in Volume 24\n\nBy its terms, the statute contemplates possible mechanisms for authorizing hos\xc2\xad\ntilities other than a declaration of war. The decision as to which legal vehicle\nto choose is within Congress\xe2\x80\x99s power: it is well established that \xe2\x80\x9c it is constitu\xc2\xad\ntionally permissible for Congress to use another means than a formal declaration\nof war to give its approval to a w ar.\xe2\x80\x9d Mitchell v. Laird, 488 F.2d 611, 615 (D.C.\nCir. 1973). See also M ontoya v. U nited States, 180 U.S. 261, 267 (1901) (\xe2\x80\x9c We\nrecall no instance where Congress has made a formal declaration of war against\nan Indian nation or tribe; but the fact that Indians are engaged in acts of general\nhostility to settlers, especially if the government has deemed it necessary to des\xc2\xad\npatch a military force for their subjugation, is sufficient to constitute a state of\nwar.\xe2\x80\x9d ); Berk v. Laird, 317 F. Supp. 715, 722 (E.D.N.Y. 1970) (noting that plain\xc2\xad\ntiffs memorandum of law had listed 159 instances of the use of U.S. forces abroad\nfrom 1798 to 1945, o f which only six involved formal declarations of war by\neither side), a j f d sub nom., Orlando v. Laird, 443 F.2d 1039 (2d Cir. 1971);\nHamilton v. M cClaughry, 136 F. 445, 449 (D. Kan. 1905) (\xe2\x80\x9c A formal declaration\nof war . . . is unnecessary to constitute a condition of war.\xe2\x80\x9d ); United States v.\nCastillo, 34 M.J. 1160, 1164 (N.M.C.M.R. 1992) (\xe2\x80\x9c Congress may assent to the\nwaging of war by means other than a formal declaration of war, and what form\nit chooses to record that assent is within its discretion to decide.\xe2\x80\x9d ). Moreover,\nin the period since the WPR was enacted, Congress has explicitly authorized hos\xc2\xad\ntilities under the statute without declaring war.7 Congress has in fact often author\xc2\xad\nized hostilities by legislative measures other than formal \xe2\x80\x9c declarations of war\xe2\x80\x9d\nsince the days of the early republic.8 Indeed, at the time of the Founding, formal\nto use their best judgm ent and to share with the President the responsibility for the most important decision a nation\ncan make, the decision o f w hether or not to go to w ar.4\xe2\x80\x99); Thomas F. Eagleton, The August 15 Compromise and\nthe War Powers o f Congress, 18 St. Louis U L J . 1, 8 (1973) ( \xe2\x80\x9c [I]t should be more apparent now than ever that\nCongress will not exercise its war powers unless legislation is enacted clearly reaffirming that Congress alone must\nbear the responsibility for authorizing the commitment of American forces to hostile action.\xe2\x80\x9d ). War Powers Legisla\xc2\xad\ntion, 1973: Hearings Before the Senate Comm on Foreign Relations, 93d Cong. 20 (1973) (statement of Prof Alex\xc2\xad\nander M Bickel, Yale University Law School) ( \xe2\x80\x9c Congress will not tikely\xe2\x80\x94 I had nearly said, cannot ever\xe2\x80\x94 be\nbrought to resume exercise o f its share o f the war pow er through specific actions until it has in declarative fashion\nreallocated a share o f the responsibility to itself. T he people tend not to hold Congress responsible, and its own\nMembers tend to avoid the responsibility.\xe2\x80\x9d ), Ely, supra, at 48 ( \xe2\x80\x9c Like the Gramm-Rudman-Hollings Budget Control\nAct o f 1985 and other recent \xe2\x80\x98fram ew ork\xe2\x80\x99 legislation, the W ar Powers Resolution is designed to force a decision\nregarding matters that Congress has in the past show n itself unwilling to face up to . . . [Section 5(b)] provides\nthat once the Resolution is triggered by the commitment o f troops, Congress itself has sixty days to make the critical\ndecision on war and peace \xe2\x80\x9d )\n7The joint resolution authorizing the Persian G ulf War in 1991, Pub L No. 102-1, 105 Stat. 3 (1991) (reprinted\nat note following 50 U S C \xc2\xa7 1541), for example, \xe2\x80\x9c is not styled a declaration of war and does not appear to be\nso,\xe2\x80\x9d Castillo, 34 M.J. at 1164; nonetheless, it unquestionably (and in terms) provided specific statutory authorization\nwithin the meaning o f section 5(b) for the conflict that ensued, see note at \xc2\xa7 2(c)(1) ( \xe2\x80\x9c Consistent with section 8(a)(1)\nof the W ar Powers Resolution, the Congress declares that this section is intended to constitute specific statutory\nauthorization within the meaning o f section 5(b) o f the War Powers Resolution.\xe2\x80\x9d ) (internal citations omitted). Simi\xc2\xad\nlarly, the M ultinational Force in Lebanon Resolution, Pub. L. No 98-119, 97 Stat 805 (1983), reprinted at note\nfollowing 50 U S.C. \xc2\xa7 1541, expressly authonzed the continued presence o f United States Armed Forces in Lebanon\nfor 18 months following the date o f the statute\xe2\x80\x99s enactment and did not involve a declaration of war See id. \xc2\xa72(c)\n(\xe2\x80\x9c The Congress intends this joint resolution lo constitute the necessary specific statutory authorization under the\nW ar Powers Resolution for continued participation by United States Armed Forces in the Multinational Force in\nLebanon \xe2\x80\x9d )\ns See, e.g., Bas v. Tingy, 4 U S (4 Dali.) 37 (1800) (awarding compensation under Act of Congress dealing with\nrecapture o f ships from \xe2\x80\x9c the enem y\xe2\x80\x9d , France deem ed \xe2\x80\x9c the enem y\xe2\x80\x9d although Congress had not declared war dunng\n\n330\n\n\x0cAuthorization fo r Continuing Hostilities in Kosovo\n\n\xe2\x80\x9c declarations\xe2\x80\x9d of war were increasingly rare in state practice,9 and prominent\nlegal theorists known to the Founders had analyzed other legal devices for author\xc2\xad\nizing war.10 Moreover, whatever their view of the scope of the President\xe2\x80\x99s\nauthority to conduct hostilities, scholars agree that Congress could authorize con\xc2\xad\nflict through measures other than a formal declaration of war.11\nFinally, section 8(a) of the WPR elaborates on the \xe2\x80\x9c specific authorization\xe2\x80\x9d\noption:\nAuthority to introduce United States Armed Forces into hostilities\nor into situations wherein involvement in hostilities is clearly\nindicated by the circumstances shall not be inferred \xe2\x80\x94\nperiod o f quasi-war with France after 1798), Abraham D. Sofaer, War, Foreign Affairs and Constitutional Power\nThe Origins 139, 164 (1976) (noting lhat, with respect to the quasi-war with France, President Adams \xe2\x80\x9c gradually\nconvinced Congress to authonze hostilities without a declaration\xe2\x80\x9d and that, in Bas v. 7i#igy,\xe2\x80\x9c [t]he Supreme Court\nunambiguously confirmed the power o f Congress to authorize hostilities in any degree without declaring war\xe2\x80\x9d ),\nGerhard Casper, Separating Power Essays on the Founding Period 62 (1997) (discussing Congress\xe2\x80\x99s decision not\nto declare war with Algiers, as requested by President Madison, but to authonze limited naval warfare instead),\nLouis Fisher, Presidential War Power 17\xe2\x80\x9418 (1995) (arguing that Congress had authonzed quasi-war with France\nthrough several dozen bills supporting military action by President Adams); id at 13 (noting that Congress authonzed\nearly Indian wars through legislation authonzing protection o f frontier); Erwin N. Griswold, The Indochina W ar\xe2\x80\x94\nIs It Legal, reprinted in 117 Cong Rec 28,977 (1971) ( \xe2\x80\x9c The notion of a war authonzed by Congress in a fashion\nless dramatic than a formal declaration of war has been accepted slr.cc\nearliest years of our national existence.\xe2\x80\x9d ).\nMemorandum from William H. Rehnquist, Assistant Attorney G c .^ u l, Office of Legal Counsel, Re: The President\n(The G u lf o f Tonkin\nand the War Power\' South Vietnam and the Cambodian Sanctis---- r z* 25 (May 22.\nResolution \xe2\x80\x9c expressly authorized extensive military involvement bv the United States . . To reason that if the\ncaption \xe2\x80\x98Declaration of W ar\xe2\x80\x99 had appeared at the top o f the resolution, this involv^r.w.i would be permissible,\nbut that the identical language without such a caption does not give effective congressional sanction to it at all,\nwould be to treat this most nebulous and ill defined o f all areas o f the law as if i* were a problem in common\nlaw pleading.\xe2\x80\x9d ), Alexander M. Bickel, Congress, the President and the Power to Wage w ar, 48 Chi -Kent L Rev.\n131, 139-40 (1971) ( \xe2\x80\x9c ITJhere is utterly no reason to think that Congress ha\xc2\xab \xe2\x80\xa2\xe2\x80\xa2-\xe2\x80\x99. j the mega-power to declare war\n. . . and no mini- or intermediate power to commit the country io 5>uineiiung less than a declared war. Congress\n. . . has the necessary-and-proper power, the power to do anything that is necessary and proper to carry out the\nfunctions conferred upon it and upon any other department or officer of the government. If in the conditions of\nour day it is necessary to carry out the power to declare war by taking measures short of a declaration of war,\neverything in the scheme o f government set up by the Constitution indicates that Congress has the needed\nauthonty.\xe2\x80\x9d ).\n9Thus, when France in 1778 entered the Revolutionary War as an ally of the Colonies against Great Bntain,\nit did not issue a \xe2\x80\x9c Declaration of W ar\xe2\x80\x9d \xe2\x80\x94 although it did so in June, 1779 See Samuel Flagg Bemis, The Diplomacy\no f the American Revolution 136, 145 (1967 repnnt o f 1935 ed )\n10 See W. Taylor Reveley III, War Powers o f the President and Congress: Who Holds the Arrows and Olive\nBranch? 54-55 (1981) (Legal theonsts known to Founders had \xe2\x80\x9c examined in detail undeclared or \xe2\x80\x98imperfect\xe2\x80\x99 war,\nnoting that it was generally limited in scope, designed to redress gnevances, and prosecuted through restncted govern\xc2\xad\nment action or private war making under letters of marque and repnsal\n[UJndeclared war was the norm in\neighteenth-century European practice, a reality brought home to A mencans when Bntain\xe2\x80\x99s Seven Years\xe2\x80\x99 War with\nFrance began on this continent.\xe2\x80\x9d ) See also The Federalist No. 25, at 161 (A. Hamilton) (Jacob E. Cooke e d ,\n1961) ( \xe2\x80\x9c [TJhe ceremony o f a formal denunciation o f war has of late fallen into disuse\n\xe2\x80\x9d ), W illiam Michael\nTreanor, Fame, The Founding, and The Power to Declare War, 82 Cornell L Rev. 695, 709 (1997).\niy See, e g , Ely, supra, at 25 (noting that the idea that congressional combat authorizations must be labeled \xe2\x80\x9c dec\xc2\xad\nlarations of w ar\xe2\x80\x9d is \xe2\x80\x9c manifestly out o f accord with the specific intentions of the founders\xe2\x80\x9d and that \xe2\x80\x9c most eight\xc2\xad\neenth-century wars were not \xe2\x80\x98declared\xe2\x80\x99 in so many words, a fact o f which the founders took specific and approving\nnote \xe2\x80\x9d ), Fisher, supra, at 9 (1995) ( \xe2\x80\x9c The framers were well aware that nations approved war either by declaration\nor authorization \xe2\x80\x9d ), Charles A Lofgren, War-Making Under the Constitution: The Original Understanding, 81 Yale\nL J . 672, 694 (1972) (\xe2\x80\x9c In sum, familianty with Grotius and his successors and with then-recent history would have\nsuggested to one in the late 1780\'s that undeclared war was no oddity\n.\xe2\x80\x9d ).\n\n331\n\n\x0cOpinions o f the Office o f Legal Counsel in Volume 24\n\n(1) from any provision of law . . . including any provision con\xc2\xad\ntained in any appropriations Act, unless such provision specifically\nauthorizes the introduction o f United States Armed Forces into hos\xc2\xad\ntilities or into such situations and states that it is intended to con\xc2\xad\nstitute specific statutory authorization within the meaning of this\nchapter.\n50 U.S.C. \xc2\xa7 1547(a)(1).\nLike section 5(b), section 8(a) implicitly recognizes that Congress may authorize\nhostilities by means other than a declaration of war. Because it purports to allow\nCongress to authorize hostilities through appropriation statutes that specifically\ninvoke the WPR, section 8(a) further recognizes that appropriation statutes may,\nunder some circumstances, authorize hostilities.\nII. Appropriations and Authorization o f M ilitary Combat\n\nThe Supreme Court has recognized that, as a general matter, appropriation stat\xc2\xad\nutes may \xe2\x80\x9c stand[] as confirmation and ratification of the action of the Chief\nExecutive.\xe2\x80\x9d Fleming v. Mohawk Wrecking & Lumber Co., 331 U.S. I l l , 116\n(1947). Congress may also \xe2\x80\x9c amend substantive law in an appropriations statute,\nas long as it does so clearly.\xe2\x80\x9d Robertson v. Seattle Audubon Soc., 503 U.S. 429,\n440 (1992). \xe2\x80\x9c [W]hen Congress desires to suspend or repeal a statute in force,\n\xe2\x80\x98[t]here can be no doubt that . . . it could accomplish its purpose by an amend\xc2\xad\nment to an appropriation bill, or otherwise.\xe2\x80\x99 United States v. Dickerson, 310 U.S.\n554, 555 (1940). \xe2\x80\x98The whole question depends on the intent of Congress as\nexpressed in the statutes.\xe2\x80\x99 United States v. Mitchell, 109 U.S. 146, 150 (1883).\xe2\x80\x9d\nUnited States v. Will, 449 U.S. 200, 222 (1980).\nIndeed, on numerous occasions, the Supreme Court has applied this general\nprinciple to find that Congress had authorized or ratified executive branch action\nthrough appropriation measures. For example, in Isbrandtsen-Moller Co. v. United\nStates, 300 U.S. 139, 147 (1937), the Court held that Congress had ratified the\nabolition of the Shipping Board and the transfer o f its functions to the Department\no f Commerce by a series of subsequent appropriation acts. Likewise, in Wells\nv. Nickles, 104 U.S. 444, 447 (1881), the Court found that Congress had author\xc2\xad\nized the Department of the Interior to appoint agents to protect timber on govern\xc2\xad\nment land through \xe2\x80\x9c appropriations made to pay for the services of these special\ntimber agents.\xe2\x80\x9d And in Ludecke v. Watkins, 335 U.S. 160, 173 n.19 (1948), the\nCourt explained that Congress had \xe2\x80\x9c recognized . . . the President\xe2\x80\x99s powers under\nthe Alien Enemy Act of 1798\xe2\x80\x9d to remove enemy aliens summarily in time of\ndeclared war \xe2\x80\x9c by appropriating funds\xe2\x80\x9d for the maintenance, care, detention,\nsurveillance, and transportation of such aliens. See also Ex Parte Mitsuye Endo,\n323 U.S. 283, 303 n.24 (1944) (noting that to authorize executive action through\n332\n\n\x0cAuthorization fo r Continuing Hostilities in Kosovo\n\nappropriations, Congress \xe2\x80\x9c must plainly show a purpose to bestow the precise\nauthority which is claimed\xe2\x80\x9d ); Myres S. McDougal & Asher Lans, Treaties and\nCongressional-Executive o r Presidential Agreements: Interchangeable Instruments\no f National Policy , 54 Yale L J. 181, 271 (1945) (noting that Congressional\n\napproval of American membership in international organizations such as the PanAmerican Union \xe2\x80\x9c may readily be inferred from [a] long series of acts appro\xc2\xad\npriating funds to defray the United States\xe2\x80\x99 aliquot portion of operating expenses\xe2\x80\x9d ).\nThe notion that Congress can authorize hostilities through appropriation laws\nfollows directly from this general principle. As Ely explains:\nThroughout the course of the [Vietnam] war, hundreds o f billions\nof dollars were appropriated to support it, and the draft was repeat\xc2\xad\nedly extended. Supporters understandably cited these measures as\nfurther congressional authorization.\nThe law generally pertaining to authorization by appropriation is\nabout what first-order common sense suggests it should be. If there\nis no reason to infer that Congress knew what the agency or pro\xc2\xad\ngram in question was about, the fact that it was buried in an appro\xc2\xad\npriations measure is typically not taken to constitute authorization\nof it. If the program was conspicuous, it is. Indeed, assuming suffi\xc2\xad\ncient notice of what was going on, appropriations may in some\nways constitute unusual evidence of approval, in that typically Con\xc2\xad\ngress acts twice \xe2\x80\x94 once lo authorize the expenditure and again to\nappropriate the money.\nEly, supra, at 27. Indeed, Congress has on numerous occasions authorized U.S.\ninvolvement in armed conflict at least in part through appropriation laws. As we\nexplained in our 1984 overview of the WPR, \xe2\x80\x9c [p]rior to the enactment of the\nWPR, many enactments of Congress, especially appropriations measures, could\njustifiably have been regarded by the Executive as constituting implied authority\nto continue the deployment of our armed forces in hostilities.\xe2\x80\x9d 8 Op. O.L.C. at\n273 n.4. In several instances in early Administrations, appropriation laws played\nan important role in authorizing or ratifying presidential use of the Armed Forces\nin situations of conflict. For example, President George Washington \xe2\x80\x9c used force\nagainst the Wabash Indians pursuant to a statute that provided forces and author\xc2\xad\nized the call-up of militia to protect frontier inhabitants from the hostile incursions\nof Indians. This statute, along with the requests and debates that accompanied\nit, and the appropriations that follow ed its adoption, made clear that Congress\napproved the military engagements Washington undertook against the Wabash.\xe2\x80\x9d\nAbraham D. Sofaer, The Power O ver War, 50 U. Miami L. Rev. 33, 41 (1995)\n(emphasis added) (footnote omitted); see also John C. Yoo, The Continuation o f\n333\n\n\x0cOpinions o f the Office o f Legal Counsel in Volume 24\n\nPolitics By Other M eans: The O riginal Understanding o f War Pow ers , 84 Cal.\n\nL. Rev. 167, 291 (1996) (noting o f Washington\xe2\x80\x99s campaign against the Indians\nin the Northwest that \xe2\x80\x9c Congress\xe2\x80\x99 approval of the appropriation . . . constituted\nan explicit authorization of the President\xe2\x80\x99s war plans.\xe2\x80\x9d ). Congress also authorized\nPresident Adams to conduct the undeclared Quasi-War against France in part by\nappropriating funds to strengthen the military. See Sofaer, War, Foreign Affairs\nand Constitutional Power, supra at 139-66 (describing appropriation laws and\nother measures by which Congress authorized hostilities against France); Yoo,\nsupra, at 292 ( \xe2\x80\x9c Congress approved Adams\xe2\x80\x99 designs to wage a naval war against\nFrance by supplying the funds for the bulked up military.\xe2\x80\x9d ). Another instance\nin which appropriation laws or procurement statutes were thought by some mem\xc2\xad\nbers of Congress to provide some measure of authority for the use of force\noccurred in the course of the Monroe Administration\xe2\x80\x99s efforts to annex Florida.\nSee Sofaer, The P ow er Over War, supra, at 47-48 ( \xe2\x80\x9c A long and important\nCongressional debate followed these events. . . . The classic arguments con\xc2\xad\ncerning the meaning of the power to declare war were made on both sides of\nthe issue, including the argument that Congress had authorized the actions in\nFlorida by providing the funds to pay the m ilitia.\xe2\x80\x9d ); see also David P. Currie,\nRumors o f Wars: Presidential and Congressional War Powers, 1809-1829, 67\nU. Chi. L. Rev. 1, 14\xe2\x80\x9415 (2000) (noting George Poindexter\xe2\x80\x99s argument that Con\xc2\xad\ngress had authorized President M onroe to order General Jackson to cross into\nSpanish territory to wage defensive war on the Seminoles by appropriating funds\nfor the action).\nSo-called \xe2\x80\x9c Indian\xe2\x80\x9d wars, which were common in American history, were also\nnot declared wars; rather, Congress was said to have authorized or ratified them\nby a variety of means, including voting appropriations to pay the troops called\nout and to defray the expenses of campaigns. See Alire v. United States, 1 Ct.\nCl. 233, 238 (1865) (quoting report o f the Secretary of W ar that says: \xe2\x80\x9c And Con\xc2\xad\ngress has seldom failed to recognize and ratify [the so-called \xe2\x80\x98Indian wars\xe2\x80\x99], by\nvoting appropriations and to pay the troops called out and defray the expenses\nincident to such expeditions.\xe2\x80\x9d ), r e v \xe2\x80\x99d on other grounds, 73 (6 Wall.) U.S. 573\n(1867). In 1838, Attorney General Butler opined that war had been waged on\nthe Seminole Indians \xe2\x80\x9c by authority of the legislative department, to whom the\npower o f making war has been given by the constitution,\xe2\x80\x9d because Congress had\nboth \xe2\x80\x9c recognised the commencement of these hostilities, and appropriated money\nto suppress them ,\xe2\x80\x9d and because it had later made \xe2\x80\x9c [s]everal appropriations for\nthe same object.\xe2\x80\x9d Existence of W ar With the Seminoles, 3 Op. Att\xe2\x80\x99y Gen. 307\n(1838). In 1905, a district court held that President McKinley\xe2\x80\x99s intervention in\nChina during the Boxer Rebellion constituted war, and was ratified by Congress\xe2\x80\x99s\ndecision to vote wartime pay to the troops who served on the expedition. See\nHamilton, 136 F. at 451. It has also been argued that Congress ratified the Korean\nWar by enacting several major pieces of war-related legislation during that con\xc2\xad\n334\n\n\x0cAuthorization fo r Continuing Hostilities in Kosovo\n\nflict, including a bill to increase taxes by $4.7 billion to help pay for the war.\nSee Ely, supra, at 11 (\xe2\x80\x9c [B]efore the war was over Congress had voted draft exten\xc2\xad\nsions and special appropriations which by some people\xe2\x80\x99s lights constituted suffi\xc2\xad\ncient authorization . . . .\xe2\x80\x9d ).\nThe most conspicuous example of Congress authorizing hostilities through its\nappropriations power occurred during the War in Vietnam. See William C. Banks\n& Peter Raven-Hansen, National Security Law and the Power o f the Purse 119\n(1994) (\xe2\x80\x9c The paradigm of what we have called legitimating appropriations \xe2\x80\x94\nappropriation measures from which the executive infers authority for national\nsecurity actions \xe2\x80\x94 is the succession of appropriations for military activities in\nSoutheast Asia during the Vietnam War.\xe2\x80\x9d ). In that war, the State Department\nLegal Adviser argued that Congress had authorized the conflict, not only through\nthe Gulf of Tonkin Resolution, 78 Stat. 384 (1964), but also by enacting supple\xc2\xad\nmental appropriations bills. Noting that the Gulf of Tonkin Resolution provided\nthat Congress could terminate that statute by concurrent resolution, and that Con\xc2\xad\ngress had not in fact done so, Leonard Meeker, the State Department\xe2\x80\x99s Legal\nAdviser during the Johnson Administration, pointed out that\n[i]nstead, Congress in May 1965 approved an appropriation of $700\nmillion to meet the expense of mounting military requirements in\nViet-Nam. (Public Law 89-18, 79 Stat. 109.) The President\xe2\x80\x99s mes\xc2\xad\nsage asking for this appropriation state[s] that .this was \xe2\x80\x9c not a rou\xc2\xad\ntine appropriation. For each Member of Congress who supports this\nrequest is also voting to persist in our efforts to halt Communist\naggression in South Vietnam.\xe2\x80\x9d The appropriation act constitutes a\nclear congressional endorsement and approval of the actions taken\nby the President.\nOn March 1, 1966, the Congress continued to express its support\nof the President\xe2\x80\x99s policy by approving a $4.8 billion supplemental\nmilitary authorization by votes of 392-4 and 93-2. An amendment\nthat would have limited the President\xe2\x80\x99s authority to commit forces\nto Viet-Nam was rejected by a vote of 94-2.\nLeonard C. Meeker, The Legality o f United States Participation in the Defense\no f Viet-Nam, 54 Dep\xe2\x80\x99t St. Bull. 474, 487-88 (1966) (footnote omitted).12\nFive years later, the Solicitor General Erwin Griswold made similar arguments.\nMaintaining that the Vietnam War was congressionally authorized, Griswold said:\n12Senator Eagleton objected to the State Department\xe2\x80\x99s reasoning because \xe2\x80\x9c I could not accept the idea that broad\nappropriations acts authorizing money for a large number o f vital governmental functions could be read as specific\nauthorizations for hostilities.\xe2\x80\x9d Eagleton, supra, at 125. However, the Slate Department\xe2\x80\x99s argument rested, not on\nsuch broad appropriation acts, but on specific appropriations for the war in Vietnam See Pub L No 89-18, 79\nStat 109 (1965) (appropriating $700 million \xe2\x80\x9c upon determination by the President that such action is necessary\nin connection with military activities in southeast Asia\xe2\x80\x9d )\n\n335\n\n\x0cOpinions o f ihe Office o f Legal Counsel in Volume 24\n\nPerhaps even more important than the Tonkin Gulf Resolution is\nthe fact that Congress has consistently backed and supported the\nactions of the President in all the intervening years. Early in 1965,\nPresident Johnson asked for and obtained a special appropriation\nof seven hundred million dollars, for the express purpose of car\xc2\xad\nrying on military action in Southeast Asia. This was granted by\nan Act of Congress approved on May 7, 1965. The vote in Congress\nwas 408 to 7 in the House, and 83 to 3 in the Senate. This is\nan unusual appropriations act, in that it consists of a single item.\nThus, there is no possibility that it passed through Congress by\ninadvertence, or that the report for it may have been coerced, as\nin the case of a rider. . . . After this, there were many legislative\nacts by Congress, taken in full knowledge of the situation in South\xc2\xad\neast Asia, and in support of the President\xe2\x80\x99s actions.\nErwin N. Griswold, The Indochina W ar\xe2\x80\x94 Is It Legal?, reprinted in 117 Cong.\nRec. 28,978 (1971).\nSeveral courts and legal scholars have agreed that the appropriations provided\nby Congress to fund the war played an important (and in some cases dispositive)\nrole in authorizing armed conflict in Vietnam. For example, directly following\nhis observation that Congress can authorize executive action through appropria\xc2\xad\ntions if the program in question is \xe2\x80\x9c conspicuous,\xe2\x80\x9d Professor Ely notes: \xe2\x80\x9c In this\ncase, it would be an understatement to say that the program for which Congress\nwas appropriating funds (and extending the draft) was conspicuous. In May of\n1965 Congress enacted a special appropriation of $700 million for \xe2\x80\x98military activi\xc2\xad\nties in southeast Asia.\xe2\x80\x99 \xe2\x80\x9d Ely, supra, at 27; see also id. at 27-30 (explaining why\nappropriations constituted authorization and rejecting arguments to the contrary);\nDa Costa v. Laird, 448 F.2d 1368, 1369 (2d Cir. 1971) ( \xe2\x80\x9c [T]here was sufficient\nlegislative action in extending the Selective Service Act and in appropriating bil\xc2\xad\nlions o f dollars to carry on military and naval operations in Vietnam to ratify\nand approve the measures taken by the Executive, even in the absence of the\nGulf o f Tonkin resolution.\xe2\x80\x9d ); Berk, 317 F. Supp. at 724-28 (reviewing appropria\xc2\xad\ntions acts for Vietnam War, and holding that they authorized hostilities); Orlando,\n443 F.2d at 1042 (identifying appropriation bills, as well as the Tonkin Gulf Reso\xc2\xad\nlution and the extension of the Military Selective Service Act, as demonstrating\nthat \xe2\x80\x9c [t]he Congress and the Executive have taken mutual and joint action in\nthe prosecution and support of military operations in Southeast Asia from the\nbeginning o f those operations\xe2\x80\x9d ); M itchell, 488 F.2d at 615 (concluding otherwise\nbut noting that \xe2\x80\x9c [t]he overwhelming weight of authority . . . holds that the appro\xc2\xad\npriation, draft extension, and cognate laws enacted with direct or indirect reference\nto the Indo-China war . . . did constitute a constitutionally permissible form of\nassent.\xe2\x80\x9d ); Philip Bobbitt, War Powers: An Essay on John Hart E ly \xe2\x80\x99s War and\n336\n\n\x0cAuthorization fo r Continuing Hostilities in Kosovo\n\nResponsibility: Constitutional Lessons o f Vietnam and Its Aftermath, 92 Mich. L.\nRev. 1364, 1392 (1994) ( \xe2\x80\x9c [Sjtatutes \xe2\x80\x94 defense appropriation acts, defense\nauthorizations \xe2\x80\x94 can serve as the basis on which the President may validly commit\nU.S. forces without further returning to Congress for fresh mandates beyond those\ngiven by statute. This was the history of the entirely valid constitutional authoriza\xc2\xad\ntion of the Vietnam War, and Ely forthrightly, and, I think, courageously,\nacknowledges this.\xe2\x80\x9d ); Norman A. Graebner, The President As Commander in\nChief: A Study in Power, in Commander in Chief: Presidential Leadership in\nModern Wars 42 (Joseph G. Dawson, III ed., 1993) ( \xe2\x80\x9c A congressional majority\nunderwrote the war in Vietnam from 1961 until 1973 through its power of the\npurse; that war always belonged to Congress as much as to the presidents. They\nfought it together.\xe2\x80\x9d ).13\nFinally, although the court of appeals in Holtzman v. Schlesinger, 484 F.2d\n1307, 1313 (2d Cir. 1973), invoked the political question doctrine and thus did\nnot reach the merits of the claim that President Nixon lacked the authority for\nthe bombing of Cambodia after the cease-fire in Vietnam and the removal of\nUnited States prisoners of war from that country, it indicated that, if it had reached\nthe merits, it would have found that a provision of the Joint Resolution Continuing\nAppropriations for Fiscal 1974, Pub. L. No. 93-52 (1973), \xe2\x80\x9c support[ed] the propo\xc2\xad\nsition that the Congress has approved the Cambodian bombing.\xe2\x80\x9d See also Thomas\nF. Eagleton, The August 15 Compromise and the War Powers o f Congress, 18\nSt. Louis U. L.J. at 1 (\xe2\x80\x9c On June 29 . . . [i]t was clear that neither the American\npeople nor Congress wanted a continuation of the bombing. But before that legis\xc2\xad\nlative day was over, Congress would authorize a forty-five day war in Indo\xc2\xad\nchina.\xe2\x80\x9d ).\nSome have argued that, on the contrary, appropriation statutes that fund ongoing\nwar efforts do not constitute authorization of those war efforts. See Francis D.\nWormuth & Edwin B. Firmage, To Chain the Dog o f War: The War Pow er of\nCongress in H istory and Law 227-34 (2d ed. 1989); War Powers Legislation:\nHearings Before the Senate Comm, on Foreign Relations, 92d Cong. 23 (1973)\n(statement of Professor Alexander M. Bickel) ( \xe2\x80\x9c To appropriate money in support\nof a war the President is already waging, it seems to me, is no more to ratify\nhis action in responsible fashion than to appropriate money for the payment of\n13 It has also been suggested that even after the repeal o f the G ulf of Tonkin Resolution, See Pub. L No. 91672, \xc2\xa712, 84 Stat. 2053, 2055 (1971) (repealing Gulf o f Tonkin Resolution), C ongress\xe2\x80\x99 continuing appropriations\nfor the war effort were sufficient to authonze continuing hostilities in Vietnam. As Ely notes\n[The intentions o f those who voted to repeal the Tonkin Gulf Resolution] would not have mattered, had\nthe Tonkin G ulf Resolution stood as o f 1971 as the only congressional authorization for the war- When\nthe only authorization goes, the war goes, irrespective o f what people think they are up to However,\nby 1971 the situation was far from that: Congress had by then, by a number of appropriations measures,\nquite pointedly reiterated its authorization of the war. Moreover, and not surprisingly under the cir\xc2\xad\ncumstances, it continued after its repeal of the Tonkin Gulf Resolution to appropriate funds for military\nactivities in Southeast Asia, and to extend the draft\nTantalizing as the repeal must thus have seemed to those wishing to mount a legal attack on the war,\nit unfortunately was just more o f C ongress\xe2\x80\x99s playing Pontius Pilate\nEly, supra, at 33\n\n337\n\n\x0cOpinions o f the Office o f Legal Counsel in Volume 24\n\nhis salary.\xe2\x80\x9d ); M itchell, 488 F.2d at 615 (\xe2\x80\x9c This court cannot be unmindful of what\nevery schoolboy knows: that in voting to appropriate money or to draft men a\nCongressman is not necessarily approving of the continuation of a war no matter\nhow specifically the appropriation or draft act refers to that war.\xe2\x80\x9d ); Campbell,\n203 F.3d at 31 n.10 (Randolph, J., concurring) (citing and quoting Mitchell for\nthe same proposition). This argument can take one of two forms. First, one could\nargue that a general defense-related appropriation statute does not authorize the\nongoing hostilities because it provides only general defense-related funds and does\nnot indicate any approval o f the specific hostilities at issue. While this might be\ntrue, it does not undermine the basic principle explained above \xe2\x80\x94 that an appro\xc2\xad\npriation statute specifically and conspicuously aimed at funding hostilities may\nconstitute authorization of those hostilities. Second, some have argued that appro\xc2\xad\npriations, regardless of how specific they may be with respect to ongoing war\nefforts, should not be interpreted to authorize continuing military operations\nbecause those appropriations could just as easily be understood as providing\nresources for men and women already in combat, simply to ensure that they do\nnot suffer as a result of a disagreement between the Executive and the Congress\nregarding the wisdom of the deployment. See, e.g., Mitchell, 488 F.2d at 615\n(declining to decide whether President Nixon had exceeded his constitutional\npower on political question grounds, but noting that, \xe2\x80\x9c in voting to appropriate\nmoney or to draft men a Congressman is not necessarily approving the continu\xc2\xad\nation of a war no matter how specifically the appropriation or draft act refers\nto that war. . . . An honorable, decent, compassionate act of aiding those already\nin peril is no proof of consent to the actions that placed and continued them in\nthat dangerous posture.\xe2\x80\x9d ).14 Although this may be true in some cases, in other\ncases, as Ely explains, this proposition \xe2\x80\x9c doesn\xe2\x80\x99t make sense . . . [because] Con\xc2\xad\ngress could [phrase] its funds cut-off as a phase out, providing for the protection\nof the troops as they [are] withdrawn.\xe2\x80\x9d Ely, supra, at 29. Congress took such\na step with respect to hostilities in Somalia in November of 1993, when it provided\nthat funds could be obligated beyond March of 1994 only \xe2\x80\x9c to protect American\ndiplomatic facilities and American citizens, and noncombat personnel to advise\nthe United Nations commander in Somalia.\xe2\x80\x9d Pub. L. No. 103-139,\n\xc2\xa7 8151(b)(2)(B), 107 Stat. 1418, 1476 (1993). Alternatively, Congress could pre\xc2\xad\nclude the use o f funds to introduce additional troops, as it did through the 1971\nCooper-Church Amendment, which provided that \xe2\x80\x9c none of the funds authorized\nor appropriated pursuant to this or any other Act may be used to finance the\nintroduction of United States ground combat troops into Cambodia, or to provide\nUnited States advisers to or for Cambodian military forces in Cambodia.\xe2\x80\x9d Pub.\n14 See also Note, Congress, The President, and the Power to Commit Forces to Combat, 81 Harv. L Rev 1771,\n1801 (1968) ( \xe2\x80\x9c The difficulty with the argument [that appropriations constitute approval of warmaking] is that since\nsuch appropriations must generally come after the hostilities have already begun, the effective choice remaining\nto Congress is likely to be severely limited \xe2\x80\x9d )\n\n338\n\n\x0cAuthorization fo r Continuing Hostilities in Kosovo\n\nL. No. 91-652, \xc2\xa77(a), 84 Stat. 1942, 1943 (1971).15 In the end, the question\nwhether a particular targeted appropriation constitutes authorization for continuing\nhostilities will turn on the specific circumstances of each case.16\nIn sum, basic principles of constitutional law \xe2\x80\x94 and, in particular, the fact that\nCongress\'may express approval through the appropriations process \xe2\x80\x94 and histor\xc2\xad\nical practice in the war powers area, as well as the bulk of the case law and\na substantial body of scholarly opinion, support the conclusion that Congress can\nauthorize hostilities through its use of the appropriations power. Although it might\nbe the case that general funding statutes do not necessarily constitute congressional\napproval for conducting hostilities, this objection loses its force when the appro\xc2\xad\npriations measure is directly and conspicuously focused on specific military action.\nIII. Appropriations and the War Powers Resolution\n\nThis section analyzes whether the WPR bars Congress from authorizing military\noperations through an appropriation measure unless the appropriation measure\n\xe2\x80\x9c states that it is intended to constitute specific statutory authorization within the\nmeaning of this chapter.\xe2\x80\x9d 50 U.S.C. \xc2\xa7 1547(a)(1) (section 8(a)(1) of the WPR).\nWe conclude that the WPR does not constitute such a bar, but instead has the\neffect of establishing a background principle against which to interpret later Acts\nof Congress.\nSection 5(b) of the WPR permits continuation of hostilities when a congres\xc2\xad\nsional enactment represents \xe2\x80\x9c specific authorization for such use of United States\nArmed Forces.\xe2\x80\x9d 50 U.S.C. \xc2\xa7 1544(b). As has been discussed, courts, government\nofficials, and scholars have repeatedly (although not uniformly) recognized that\nappropriation statutes may constitute authorization for conflict. Thus, if the WPR\ndid not provide any further interpretive gloss on the question, it would appear\nthat an appropriation statute \xe2\x80\x94 if enacted for the purpose of continuing hos\xc2\xad\ntilities\xe2\x80\x94 would be \xe2\x80\x9c specific authorization.\xe2\x80\x9d Section 8(a) of the WPR, however,\nprovides that authority \xe2\x80\x9c shall not be inferred . . . from any provision of law\n15 Banks and Raven-Hansen explain ihe difficulty with the objection lhat it is impossible to construe national\nsecurity appropriations as ratification because of the circumstances o f their enactment\'\nThe objection is exaggerated and ahistoncal It seems to proceed on the assumption that Congress\xe2\x80\x99s choices\nare all or nothing, fund or deny all funding. But the Vietnam War itself showed lhat Congress has inter\xc2\xad\nmediate options, including funding phaseouts, prospective cutoffs, and, subject to separation o f powers\nlimits, area limitations. In fact, given ihe scope o f ihe president\xe2\x80\x99s commander-in-chief powers, it is doubtful\nthat Congress constitutionally could eul off the funds so abruptly that American lives would be placed\nai grave risk\nBanks & Raven-Hansen, supra, at 135 In addition to the Vietnam phase-out appropriations, Banks and RavenHansen also point to the Boland Amendments, which limited how funds appropriated for support of the Contras\ncould be used, see, e g .. Pub. L. No. 97-377, \xc2\xa7793, 96 Stat. 1830, 1865 (1982) (providing that funds could not\nbe used by the Central Intelligence Agency or the Department o f Defense to \xe2\x80\x9c furnish military equipment, military\ntraining o r advice . . . for the purpose o f overthrowing the Government of Nicaragua or provoking a military\nexchange between Nicaragua and Honduras\xe2\x80\x9d ), as an example o f such a \xe2\x80\x9c restrictive appropriation \xe2\x80\x9d See Banks &\nRaven-Hansen, supra, at 137-48.\n16 We explain in Part IV, infra, why the circumstances here lead us to conclude that Pub L No 106-31 constituted\nauthorization for continuing hostilities in the Federal Republic of Yugoslavia\n\n339\n\n\x0cOpinions o f the Office o f Legal Counsel in Volume 24\n\n. . . including any provision contained in any appropriations Act, unless such\nprovision specifically authorizes the introduction of United States Armed Forces\ninto hostilities or into such situations and states that it is intended to constitute\nspecific statutory authorization within the meaning of this chapter.\xe2\x80\x9d 50 U.S.C.\n\xc2\xa7 1547(a). In assessing whether an appropriation statute can constitute authoriza\xc2\xad\ntion, the critical question thus becomes how to understand section 8(a)(1).\nThe precursor of section 8(a)(1) is section 3(4) of S. 440, the version of the\nWPR passed by the Senate. That section provided that a specific statutory\nauthorization shall not be inferred (A) from any provision of law hereafter enacted,\nincluding any provision contained in any appropriations Act, unless such provision\nspecifically authorizes the introduction of such Armed Forces in hostilities . . .\nand specifically exempts the introduction of such Armed Forces from compliance\nwith the provisions of this Act.17\nThe most significant interpretive guide to this language is the Senate Report,\nwhich stated: \xe2\x80\x9c The purpose of this clause is to counteract the opinion in the\nOrlando v. Laird decision of the Second Circuit Court holding that passage of\ndefense appropriations bills, and extension of the Selective Service Act, could\nbe construed as implied Congressional authorization for the Vietnam war.\xe2\x80\x9d S.\nRep. No. 93-220, at 25. In Orlando, the court o f appeals had rejected the argument\nof the plaintiff enlisted men that \xe2\x80\x9c congressional authorization cannot, as a matter\nof law, be inferred from military appropriations or other war-implementing legisla\xc2\xad\ntion that does not contain an express and explicit authorization for the making\nof war by the President.\xe2\x80\x9d 443 F.2d at 1043.\nThe House version of the WPR did not contain an analogous provision.18 The\nConference Report indicates that the Senate version was the source of the \xe2\x80\x9c spe\xc2\xad\ncific statutory authorization\xe2\x80\x9d language in the final bill. See H.R. Conf. Rep. No.\n93-547, at 2 (1973). That language, according to the Senate report on S. 440,\nwas intended to \xe2\x80\x9c guard against the passage of another resolution of the Tonkin\nGulf type\xe2\x80\x9d by requiring that \xe2\x80\x9c any area resolutions, to qualify under this bill as\na grant o f authority to introduce the armed forces into hostilities . . . meet certain\ncarefully drawn criteria \xe2\x80\x94 as spelled out in the language of [\xc2\xa7 8(a)(1)].\xe2\x80\x9d S. Rep.\nNo. 93-220, at 24. The Report further explained that \xe2\x80\x9c authorization to continue\nusing the Armed Forces is to come in the form o f specific statutory [authorization]\nfor this purpose. This is to avoid any ambiguities such as possible efforts to con\xc2\xad\nstrue general appropriations or other such measures as constituting the necessary\n17 S 440, as passed by the Senate on July 20, 1973, is reprinted in William B Spong, Jr., The War Powers\nResolution Revisited: Historic Accomplishment or S u r r e n d e r 16 W m & Mary L. Rev 823, 878-82 (1975).\nl8Section 4(b) o f H.J. Res. 542, passed by the House on July 18, 1973, provided that \xe2\x80\x9c [w]ithin one hundred\nand twenty calendar days after a report is submitted o r is required to be submitted pursuant to section 3, the President\nshall term inate any commitment and remove any enlargement o f United States Armed Forces with respect to which\nsuch report was submitted, unless the Congress enacts a declaration o f war or a specific authorization for the use\nof United States Armed Forces,\xe2\x80\x9d but the House version neither defined \xe2\x80\x9c specific authorization\xe2\x80\x9d nor provided that\nan appropriations measure not refem n g back to th e WPR could not constitute such an authorization. See Spong,\nsupra, at 874\xe2\x80\x9477 (reprinting H J. Res. 542)\n\n340\n\n\x0cAuthorization fo r Continuing Hostilities in Kosovo\n\nauthorization for such \xe2\x80\x98continued use.\xe2\x80\x99 \xe2\x80\x9d Id. at 29. Congress thus required that\nauthorizing legislation expressly reference the WPR to avoid \xe2\x80\x9c any ambiguities\xe2\x80\x9d\nregarding congressional intent to sanction continued hostilities.\nTo the extent, however, that this interpretation would take from Congress a\nconstitutionally permissible method of authorizing war, it runs afoul of the axiom\nthat one Congress cannot bind a later Congress. See, e.g., Marbury v. Madison,\n5 U.S. (1 Cranch) 137, 177 (1803) (noting that, in contrast to a constitution, legis\xc2\xad\nlative acts are \xe2\x80\x9c alterable when the legislature shall please to alter [them]\xe2\x80\x9d );\nFletcher v. Peck, 10 U.S. (6 Cranch) 87, 135 (1810) (noting that \xe2\x80\x9c [t]he correctness\nof [the] principle,\xe2\x80\x9d \xe2\x80\x9c that one legislature is competent to repeal any [law] which\na former legislature was competent to pass, and that one legislature cannot abridge\nthe powers of a succeeding legislature,\xe2\x80\x9d \xe2\x80\x9c can never be controverted\xe2\x80\x9d ); Street\nv. United States, 133 U.S. 299, 300 (1890) (statute \xe2\x80\x9c was not intended to have,\n[and] could not have, any effect on the power of a subsequent Congress\xe2\x80\x9d to enact\na different policy).19 Underlying this axiom is the principle that one Congress\ncannot surrender through legislation power that the Constitution vests in Congress.\nTo believe otherwise would be to assume that \xe2\x80\x9c new legislators [could] automati\xc2\xad\ncally be bound by the policies and undertakings of earlier days.\xe2\x80\x9d United States\nTrust Co., 431 U.S. at 45 (Brennan, J., dissenting).\nApplying this general principle to the issue of section 8(a)(l)\xe2\x80\x99s constitutionality,\nProfessor Philip Bobbitt has argued that, were section 8(a)(1) read to bind subse\xc2\xad\nquent Congresses, it would be unconstitutional:\n[F]ramework statutes \xe2\x80\x94 like Gramm-Rudman, for example \xe2\x80\x94\ncannot bind future Congresses. If Congress can constitutionally\nauthorize the use of force through its appropriations and authoriza\xc2\xad\ntion procedures, an interpretive statute that denies this inference \xe2\x80\x94\nas does . . . the original War Powers Resolution \xe2\x80\x94 is without legal\neffect. On the other hand, if one Congress could bind subsequent\nCongresses in this way, it\'would effectively enshrine itself in defi\xc2\xad\nance of [an] electoral mandate. Imagine, for example, a statute that\nprovided that no appropriations or authorization provision shall\nexceed a term of six months or an act that forbade the President\nfrom interpreting any subsequent statute as permitting him to issue\nregulations to enforce that statute unless specifically authorized to\n]9 See also U nited Stales Trust Co v. New Jersey, 431 U.S 1, 45 (1977) (Brennan, J., dissenting); CommunityService Broad, o f Mid-America, Inc. v. FCC, 593 F 2 d 1102, 1113 (D C Cir. 1978) ( \xe2\x80\x9c Congress is generally free\nto change its mind, in amending legislation Congress is not bound by the intent of an earlier body \xe2\x80\x9c ), Puerto R ico\xe2\x80\x94\nUnited States Bilateral Pact o f Non-territorial Permanent Union and Guaranteed Citizenship Act. Hearing on H.R.\n4751, Before the H ouse Comm, on Resources, 107th Cong. 17 (2000) (Statement of W illiam M Treanor, Deputy\nAssistant Attorney General, Office of Legal Counsel) (\xe2\x80\x9c [A]s a general matter, one Congress cannot bind a subsequent\nC ongress\xe2\x80\x9d ); M emorandum for the Special Representative for Guam Commonwealth, from Teresa Wynn\nRoseborough, Deputy Assistant Attorney General, Re. M utual Consent Provisions m The Guam Commonwealth\nLegislation 6 (July 28, 1994) ( \xe2\x80\x9c [0]ne Congress cannot bind a subsequent Congress, except where it creates vested\nnghts enforceable under the Due Process Clause of the Fifth Amendment \xe2\x80\x9c )\n\n341\n\n\x0cOpinions o f the Office o f Legal Counsel in Volume 24\n\ndo so therein. A rule of interpretation, if it contravenes a valid con\xc2\xad\nstitutional power \xe2\x80\x94 in this case, . . . that a subsequent Congress\ncould constitutionally endorse a war by an appropriations and\nauthorization statute \xe2\x80\x94 would amount to a restriction on the ability\nof a Congress to repeal by inference preexisting law. Such a fresh\nhurdle to later legislation is nowhere authorized by the Constitution\nand is inconsistent with the notion of legitimacy derived through\nthe mandate o f each new Congress.\n92 Mich. L. Rev. at 1399.20\nThis argument is compelling. If section 8(a)(1) were read to block all possibility\nof inferring congressional approval of military action from any appropriation,\nunless that appropriation referred in terms to the WPR and stated that it was\nintended to constitute specific authority for the action under that statute, then it\nwould be unconstitutional. As discussed in the previous section, under the Con\xc2\xad\nstitution, Congress can authorize or ratify presidential engagement in hostilities\nthrough an appropriation law. One statute, such as the WPR, cannot mandate that\ncertain types of appropriation statutes that would otherwise constitute authorization\nfor conflict cannot do so simply because a subsequent Congress does not use\ncertain \xe2\x80\x9c magical passwords.\xe2\x80\x9d M arcello v. Bonds , 349 U.S. 302, 310 (1955)\n(holding that detailed procedures established by the Immigration and Naturaliza\xc2\xad\ntion Act applied despite discrepancies between that Act and the Administrative\nProcedure Act (\xe2\x80\x9c APA\xe2\x80\x9d ) and despite the fact that the APA provided that exemp\xc2\xad\ntions from its requirements must be expressly indicated). As Banks and RavenHansen have put it, \xe2\x80\x9c [i]t follows that the 93d Congress that enacted the War\nPowers Resolution cannot control the way in which [a later] Congress expressfes]\ntheir intent.\xe2\x80\x9d Banks & Raven-Hansen, supra, at 131.\nIn order to avoid this constitutional problem, we do not interpret section 8(a)(1)\nas binding future Congresses but instead as having the effect of estabUshing a\nbackground principle against which Congress legislates. In our view, section\n8(a)(1) continues to have operative legal effect, but only so far as it operates\nto inform how an executive or judicial branch actor should interpret the intent\n20 In Congressional testimony in 1986, the Legal Adviser to the State Department, Abraham Sofaer, found that\n\xe2\x80\x9c senous constitutional problems exist with respect to Section 8(a),\xe2\x80\x9d because \xe2\x80\x9c one Congress by statute can[not]\nso limit the constitutional options o f future Congresses.\xe2\x80\x9d See Abraham D. Sofaer, The War Powers Resolution and\nAntiterronst Operations, 86 Dept St. Bull 68, 69 (Aug 1986). In 1988, however, Judge Sofaer cast the problem\nprim anly as a matter o f construction, not of constitutionality, although it would appear that Judge Sofaer\xe2\x80\x99s construc\xc2\xad\ntion o f the statute was intended to avoid constitutional concerns See The War Power After 200 Years Congress\nand the President at a Constitutional Impasse H earings Before the Special Subcomm. On War Powers o f the Senate\nComm. On Foreign Relations, 100th Cong 148 (1988) (testimony o f Legal Adviser Sofaer) ( \xe2\x80\x9c Section 8. The problem\nthere is not so much constitutional\nSection 8 was an effort to get people to focus on the W ar Powers Resolu\xc2\xad\ntion, but not an effective effort in limiting the types o f approvals that can be obtained.\xe2\x80\x9d ), id. at 1066 (\xe2\x80\x9c In our\nview, Section 8(a) ineffectively attempts to restnct the rights o f future Congresses to authorize deployments in any\nway they choose \xe2\x80\x9d ). As President Nixon correctly said in his Veto M essage following initial passage of the WPR,\nCongress can affect the Executive\xe2\x80\x99s conduct of m ilitary operations through a vanety of means, and \xe2\x80\x9c Itjhe authonzation and appropnations process represents one o f the ways in which such influence can be exercised.\xe2\x80\x9d Pub Papers\nof Richard Nixon 893, 895 (1973).\n\n342\n\n\x0cAuthorization fo r Continuing Hostilities in Kosovo\n\nof subsequent Congresses that enact appropriation statutes that, do not specifically\nreference the WPR.21 On the question whether an appropriation statute enacted\nby a subsequent Congress constitutes authorization for continued hostilities, it is\nthe intent of the subsequent Congress, as evidenced by the text and legislative\nhistory of the appropriation statute, that controls the analysis. The existence of\nsection 8(a)(1) might affect this analysis. If the appropriation statute is entirely\nambiguous as to whether it constitutes authorization for continuing hostilities, for\nexample, it might be proper for a judicial or executive branch actor to conclude\nthat, because the subsequent Congress was aware of the background principle\nestablished by section 8(a)(1), its failure to refer specifically back to the WPR\nevidences an intent not to authorize continuing hostilities. If, however, Congress,\nin enacting an appropriation statute, demonstrates a clear intent to authorize con\xc2\xad\ntinuing hostilities, then it would be appropriate to conclude that the appropriation\nstatute does authorize those hostilities, even though the statute does not specifi\xc2\xad\ncally refer back to the WPR. Under these circumstances, the appropriation statute\nwould supersede or work an implied partial repeal of section 8(a)(1).22 In other\nwords, section 8(a)(1) establishes procedural requirements that, under the statute,\nCongress must follow to authorize hostilities; nonetheless, a subsequent Congress\nremains free to choose in a particular instance to enact legislation that clearly\nauthorizes hostilities and, in so doing, it can decide not to follow the W PR\xe2\x80\x99s\nprocedures. This position is consistent with the approach taken by our Office at\nabout the time of the WPR\xe2\x80\x99s enactment. In a 1973 opinion, we stated:\nStrictly speaking, such a provision [\xc2\xa7 8(a)(1)] is probably not\nbinding on future Congresses. For example, should the legislative\nhistory of a future appropriations statute make it clear that particular\nhostilities are authorized, that should constitute a valid authoriza\xc2\xad\ntion, because future Congresses are free to adopt any of the cus\xc2\xad\ntomary modes of manifesting their intention. However, as a prac\xc2\xad\ntical matter, a court would probably attach some significance to\nthis subsection should a claimed statutory authorization for hos\xc2\xad\ntilities be doubtful.\n\n21 C f Cass R Sunstein, Interpreting Statutes in the Regulatory State, 103 Harv L. Rev 405, 452 (1989) (noting\nthat canons of construction have \xe2\x80\x9c actually influenced judicial behavior insofar as they reflected background norms\nlhat helped to give meaning to statutory words or to resolve hard cases\xe2\x80\x9d )\n22 Although the law disfavors implied repeals, particularly with respect to appropriation statutes, see Tennessee\nAuthority v. Hill, 437 U.S. 153, 190 (1978), the presumption against implied repeals can be overcome if the statutory\nlanguage o r legislative history evidences an intent ro repeal the prior statute. See WiU, 449 U.S at 222 ( \xe2\x80\x9c [WJhen\nCongress desires to suspend or repeal a statute in force, there can be no doubt that . . it could accomplish its\npurpose by an amendment to an appropriation bill, or otherwise . . The whole question depends on the intention\nof Congress as expressed in the statutes.\xe2\x80\x9d (citations and internal quotation marks omitted)) As described below,\nthis standard is satisfied here.\n\n343\n\n\x0cOpinions o f the Office o f Legal Counsel in Volume 24\n\nMemorandum for the Hon. William E. Timmons, Assistant to the President for\nLegislative Affairs, from Robert G. Dixon, Assistant Attorney General, Office of\nLegal Counsel, Re: The \xe2\x80\x9c War Powers Resolution" at 15 (Nov. 16, 1973).\nThis reading of section 8(a)(1) finds support in a series of cases interpreting\nstatutes similar in form to section 8(a)(1). For example, in the case of Great N.\nRy. Co. v. United States, 208 U.S. 452 (1908), the Court addressed whether one\ncriminal law repealed a prior criminal law so as to deprive the government of\nthe right to prosecute for violations o f the prior law committed before the subse\xc2\xad\nquent law was enacted. The Court considered this question in light of section\n13 of the Revised Statutes,23 which provided that \xe2\x80\x9c [t]he repeal of any statute\nshall not have the effect to release or extinguish any penalty . . . incurred under\nsuch statute, unless the repealing act shall so expressly provide.\xe2\x80\x9d Id. at 465. In\naddressing the effect of section 13 on the interpretation of the subsequent criminal\nlaw, the Court wrote: \xe2\x80\x9c As the section of the Revised Statutes in question has\nonly the force of a statute, its provisions cannot justify a disregard of the will\nof Congress as manifested, either expressly or by necessary implication, in a sub\xc2\xad\nsequent enactment.\xe2\x80\x9d Id. The Court observed that section 13 \xe2\x80\x9c must be enforced\nunless, either by express declaration or necessary implication, arising from the\nterms of the law as a whole, it results that the legislative mind will be set at\nnaught by giving effect\xe2\x80\x9d to that section. Id. See also Hertz v. Woodman, 218\nU.S. 205, 218 (1910) (\xe2\x80\x9c The repealing act here involved includes a saving clause,\nand if it necessarily, or by clear implication, conflicts with the general rule\ndeclared in \xc2\xa7 13, the latest expression of the legislative will must prevail.\xe2\x80\x9d ); War\xc2\xad\nden v. M arrero, 417 U.S. 653, 659 n.10 (1974) (\xe2\x80\x9c [0]nly if [the subsequently\nenacted statute] can be said by fair implication or expressly to conflict with [the\npreviously enacted saving clause] would there be reason to hold that [the subse\xc2\xad\nquently enacted statute] superseded [the saving clause].\xe2\x80\x9d ); Passamaquoddy Tribe\nv. M aine, 75 F.3d 784, 787, 789 (1st Cir. 1996) (characterizing a law that provided\nthat \xe2\x80\x9c [t]he provisions of any federal law . . . for the benefit of Indians . . . shall\nnot apply within the State of Maine, unless such provision of such subsequently\nenacted Federal law is specifically made applicable within the State of Maine\xe2\x80\x9d\nas \xe2\x80\x9c an interpretive aid [that] serves both to limn the manner in which subsequendy\nenacted statutes should be written to accomplish a particular goal and to color\nthe way in which such statutes thereafter should be read,\xe2\x80\x9d and noting that \xe2\x80\x9c [the\nlaw] binds subsequent Congresses only to the extent that they choose to be\nbound\xe2\x80\x9d ). The Supreme Court\xe2\x80\x99s observation that a statute should not be given\neffect if, \xe2\x80\x9c by express declaration o r necessary implication, arising from the terms\nof the law as a whole, it results that the legislative mind will be set at naught,\xe2\x80\x9d\nG reat N. Ry. Co., 208 U.S. at 465, is consistent with the view expressed in our\n1973 opinion that a statute evidencing a \xe2\x80\x9c clear\xe2\x80\x9d intent to authorize hostilities\nwill operate to authorize those hostilities even though it does not refer back to\n23 Rev. Stat \xc2\xa7 13, U.S. Comp. Stat 1901, p 6.\n\n344\n\n\x0cAuthorization fo r Continuing Hostilities in Kosovo\n\nthe WPR. To interpret section 8(a)(1) to bar such a statute from authorizing hos\xc2\xad\ntilities would set the \xe2\x80\x9c legislative mind\xe2\x80\x9d that enacted the appropriation statute \xe2\x80\x9c at\nnaught.\xe2\x80\x9d 24\nAcademic commentators have understood section 8(a)(1) in a similar fashion.\nProfessors Banks and Raven-Hansen, for example, have argued that although sec\xc2\xad\ntion 8(a)(1) counsels against inferring authorization from an ambiguous appropria\xc2\xad\ntion law, an appropriation statute that clearly authorizes hostilities nonetheless con\xc2\xad\nstitutes authorization for those hostilities despite section 8(a)(1):\nWe conclude . . . that the resolution\xe2\x80\x99s clear statement requirement\ndoes not control the construction of subsequent appropriations or\nother legislation. Instead, absent ambiguities, it is their own plain\nwords and their enactors\xe2\x80\x99 legislative intent that controls their\nconstruction. As a result, a legitimating appropriation may authorize\nor ratify a deployment of U.S. armed forces into hostilities even\nif it omits the resolution\xe2\x80\x99s magic passwords and thus violates its\nclear statement provision. . . . This is not to make a dead letter\nout of the whole of the War Power Resolution\xe2\x80\x99s rule of construc\xc2\xad\ntion. Its self-referential insistence on \xe2\x80\x9c passwords\xe2\x80\x9d is without effect.\nWe never have occasion to need the rest of it, if we can ascertain\nthe meaning and intent of a legitimating appropriation from its plain\nwords or clear legislative history. If we cannot, then the resolution\xe2\x80\x99s\nclear statement requirement sounds a useful advisory caution\nagainst inferring authority from ambiguous appropriations meas\xc2\xad\nures, and thus operates like any canon of statutory construction,\nby supplying helpful, but not controlling guidance in statutory\nconstruction.\nBanks & Raven-Hansen, supra, at 129, 131. Similarly, Professor Ely writes that\nsection 8(a)(1) \xe2\x80\x9c gave us [] a strong rule of construction, telling us how to read\nthe intent of later congresses,\xe2\x80\x9d although he further notes that unless the Resolution\nis repealed, a subsequent congress can only authorize hostilities through an appro\xc2\xad\npriation statute under \xe2\x80\x9c extreme circumstances.\xe2\x80\x9d Ely, supra, at 129.25\n24 The Great Northern Court looked solely to the subsequent statute\xe2\x80\x99s text to determine whether it conflicted\nwith the prior statute See 208 U S at 466-70. As we explain below, under a pure textual analysis. Pub L No.\n106-31 evidences a clear intent to authorize hostilities despite section 8(a)(1) In at least one recent case, however,\na court looked both to text and legislative history to determine whether a subsequent statute repealed a pn o r statute\nSee Passamaquoddy, 75 F.3d at 790-91 (analyzing Senate Report), see also Will, 499 U S at 222 In our view,\nthis approach is more consistent with the current practice o f statutory interpretation See, e g , Murphy Bros, Inc\nv. Michetti Pipe Stringing, In c , 526 U S 344, 351-55 (1999) (analyzing text and legislative history in resolving\nstatutory interpretation question) We explain below why the legislative history also supports our interpretation of\nCongress\xe2\x80\x99s intent in enacting Pub. L. No. 106-31\n25 Although we agree generally with the approach of Banks and Raven-Hansen, we are reluctant to characterize\nsection 8(a)(1) as a \xe2\x80\x9c rule o f construction \xe2\x80\x9d Such a charactenzauon might be read to suggest that the Congress\nthat enacted section 8(a)(1) intended it simply as one measure of how to interpret the intent of subsequent Congresses,\nContinued\n\n345\n\n\x0cOpinions o f the Office o f Legal Counsel in Volume 24\n\nThe determination of whether any particular appropriation statute that does not\nrefer back to the WPR constitutes authorization for continuing hostilities will nec\xc2\xad\nessarily depend on the facts of each case. Certain types of evidence will be highly\nprobative of an intent to authorize ongoing military operations. For example, evi\xc2\xad\ndence demonstrating that Congress was concerned with funding a specific military\neffort, as opposed to making general defense appropriations, would tend to show\nsuch an intention. Likewise, in a case where the President has requested an appro\xc2\xad\npriation in order to continue military operations, evidence showing that Members\nof Congress were specifically aware o f the purposes of the appropriation request\nwill tend to show that Congress intended to authorize continuing military oper\xc2\xad\nations as required by the WPR. Finally, if Congress appropriates funds only for\nprotection o f troops already committed or prohibits the use of appropriated funds\nfor the introduction of new troops, a presumption might arise that Congress did\nnot intend to authorize continuing hostilities but instead intended simply to protect\ntroops already on the ground. On the other hand, unlimited appropriations would\ntend to suggest an intent to authorize continuing hostilities. In short, where Con\xc2\xad\ngress, in passing an appropriations bill, clearly intends to authorize conflict, the\nWPR cannot be read to deny legal effect to that clear intent.\nIV. Pub. L. No. 106\xe2\x80\x9431 and Congressional Authorization o f the War in Kosovo\n\nThis section shows that, in passing Pub. L. No. 106-31, Congress clearly\nintended to authorize continuing military operations in Kosovo. The section begins\nby providing an overview of the events in Congress leading to the passage of\nPub. L. No. 106-31 and of the statute\xe2\x80\x99s text. It concludes that, in the absence\nof the WPR, Pub. L. No. 106-31 would have constituted congressional authoriza\xc2\xad\ntion of military operations in Kosovo. The following three parts look closely at\nthe statute\xe2\x80\x99s text and legislative history to determine whether Pub. L. No. 10631 constituted \xe2\x80\x9c specific authorization\xe2\x80\x9d under section 5(b)(2) of the WPR. It con\xc2\xad\ncludes that the statute constituted such \xe2\x80\x9c specific authorization.\xe2\x80\x9d\n1. O verview\n\nThe \xe2\x80\x9c clock\xe2\x80\x9d established in section 5(b) of the WPR began running in the\npresent case on March 26, 1999, when the President, citing national security cona view which seems in tension with the language and purpose o f the WPR. We nonetheless agree that, in effect,\nsection 8(a)(1) operates like a rule o f construction. Likewise, although we agree with Professor Ely that section\n8(a)(1) \xe2\x80\x9c tell[s] us how to read the intent of later congresses,\xe2\x80\x9d we are reluctant to agree with his characterization\nof the section as \xe2\x80\x9c a strong rule o f construction \xe2\x80\x9d Ely, supra, at 129. W e also do not agree with Ely that a subsequent\nCongress can authonze hostilities through appropriations only in \xe2\x80\x9c extreme circumstances.\xe2\x80\x9d Id In other words, section\n8(a)(1) establishes procedural requirements that a subsequent Congress must follow to authonze hostilities, unless\nthat subsequent Congress decides not to follow those procedures and instead chooses to enact legislation that\n\xe2\x80\x9c expressly o r by necessary im plication,\xe2\x80\x9d Great N Ry., 208 U S at 465, authorizes hostilities (A subsequent Con\xc2\xad\ngress could, o f course, also choose to repeal section 8(a)(1) o f the W PR o u tn g h t)\n\n346\n\n\x0cAuthorization fo r Continuing Hostilities in Kosovo\n\ncems, informed Congress that U.S. military forces had begun a series of air strikes\nin the Federal Republic of Yugoslavia. See Letter to Congressional Leaders\nReporting on Airstrikes Against Serbian Targets in the Federal Republic of Yugo\xc2\xad\nslavia (Serbia and Montenegro), 1 Pub Papers of William J. Clinton 459 (1999).\nAs the President explained to the Speaker of the House:\nAt approximately 1:30 p.m. eastern standard time, on March 24,\n1999, U.S. military forces, at my direction and in coalition with\nour NATO allies, began a series of air strikes in the Federal\nRepublic of Yugoslavia (FRY) in response to the FRY govern\xc2\xad\nment\xe2\x80\x99s continued campaign of violence and repression against the\nethnic Albanian population in Kosovo. The mission of the air\nstrikes is to demonstrate the seriousness of NATO\xe2\x80\x99s purpose so that\nthe Serbian leaders understand the imperative of reversing course;\nto deter an even bloodier offensive against innocent civilians in\nKosovo; and, if necessary, to seriously damage the Serbian mili\xc2\xad\ntary\xe2\x80\x99s capacity to harm the people of Kosovo. In short, if President\nMilosevic will not make peace, we will limit his ability to make\nwar.\nId. The President concluded the letter by informing the Speaker, as is customary,\n\nthat he was \xe2\x80\x9c providing th[e] report as part of [his] efforts to keep the Congress\nfully informed, consistent with the War Powers Resolution.\xe2\x80\x9d Id. at 460.\nApproximately three weeks after sending this letter, the President, through the\nWhite House budget officc, formally submitted a request to Congress for $6 billion\nto fund continuing efforts in Kosovo. See Guy Gugliotta & Helen Dewar, $6 Bil\xc2\xad\nlion Requested fo r Kosovo Emergency , The Washington Post, April 20, 1999, at\nA15. Of this amount, close to $5 billion was to be used for continued air oper\xc2\xad\nations and war material through September 30, 1999, and the rest was intended\nto assist the hundreds of thousands of ethnic Albanian refugees who were fleeing\nfrom Kosovo. Id. The congressional leadership promptly made clear their intention\nto use the request as a vehicle to augment defense spending more generally and\ncalled for defense funding far in excess of the requested $6 billion. Id. (indicating\nHouse Majority Leader Richard K. Armey\xe2\x80\x99s belief that \xe2\x80\x9c [e]ven $10 billion would\nbe insufficient\xe2\x80\x9d ).\nDebate over the continuing military operations in Kosovo intensified on April\n28, 1999, when the House considered and voted on four different Kosovo-related\nmeasures.26 First, the House defeated two measures introduced by Representative\n26Pnor lo these measures, the Senate, on March 23,\nPresident o f the United States is authonzed to conduct\nwith our NATO allies against the Federal Republic o f\n1999) (repnnting S. Con Res 21, 106th Cong (1999))\n\n1999, passed a concurrent resolution providing that \xe2\x80\x9c the\nmilitary air operations and missile stnkes in cooperation\nY ugoslavia\xe2\x80\x9d 145 Cong Rec. S3118 (daily ed. Mar. 23,\nThe following day, the House passed, by a vote of 42 4 Continued\n\n347\n\n\x0cOpinions o f the Office o f Legal Counsel in Volume 24\n\nTom Campbell: H. Con. Res. 82, 106th Cong. (1999), a concurrent resolution\ndirecting the President to remove the Armed Forces from Serbia within 30 days,\nand H.J. Res. 44, 106th Cong. (1999), declaring a state of war between the United\nStates and Serbia. See 145 Cong. Rec. H2414 (daily ed. Apr. 28, 1999) (reprinting\nH. Con. Res. 82); id. at H2426-27 (recording vote); id. at H2427 (reprinting H.J.\nRes. 44); id. at H2440-41 (recording vote). The House also voted 249-180 to\nsupport H.R. 1569, 106th Cong. (1999), blocking funding for ground troops with\xc2\xad\nout additional specific authorization from Congress, see 145 Cong. Rec. H2400\n(reprinting measure); id. at H2413-14 (recording votes), and tied, 213-213, on\nS. Con. Res. 21, 106th Cong. (1999), a concurrent resolution stating that the Presi\xc2\xad\ndent \xe2\x80\x9c is authorized to conduct military air operations and missile strikes\xe2\x80\x9d against\nSerbia. See id. at H2441 (reprinting resolution); id. at H2451-52 (recording vote).\nAs highlighted by the debates concerning these measures, there can be no doubt\nthat members of Congress were fully cognizant of the WPR and the 60-day time\nclock.27\nDespite these votes, the appropriation effort moved forward. Following testi\xc2\xad\nmony by Secretary of Defense Cohen before the Subcommittee on Defense on\nApril 21, and after a public markup on April 29, the House Appropriations Com\xc2\xad\nmittee reported H.R. 1664, 106th Cong. (1999), entitled \xe2\x80\x9c [a] bill making emer\xc2\xad\ngency supplemental appropriations for military operations, refugee relief, and\nhumanitarian assistance relating to the conflict in Kosovo, and for military oper\xc2\xad\nations in Southwest Asia for the fiscal year ending September 30, 1999, and for\nother purposes,\xe2\x80\x9d to the full House on May 4. 145 Cong. Rec. H2634 (daily ed.\nMay 4, 1999). The $12.9 billion bill provided the funds requested by the President\nfor military operations in Kosovo, as well as over $6 billion in other military\nfunding, for such things as spare parts, depot maintenance, recruiting, and readi\xc2\xad\nness training. See H.R. 1664, ch. 3; see also Andrew Taylor, Paying fo r the\nKosovo A ir War: H ow Much is Too Much?, CQ Weekly, at 1014 (May 1, 1999).\nFollowing a floor debate on May 6, the House passed H.R. 1664 the same day\nby a vote of 311-105. 145 Cong. Rec. H2895 (daily ed. May 6, 1999).\nI, a resolution noting the President\xe2\x80\x99s authorization o f U S. participation in NATO military operations and resolving\n\xe2\x80\x9c [t]hat the House o f Representatives supports th e members o f the United States Armed Forces who are engaged\nin military operations against the Federal Republic o f Yugoslavia \xe2\x80\x9d Id at H1660, H1668-69 (daily ed. Mar 24,\n1999) (reprinting H.R Res. 130, 106th Cong. (1999))\n27 For exam ple, Congressman Spratt pointed o u t that \xe2\x80\x9c [wjithin 60 days of a deployment, when we are notified\nby the President, we can enact a specific authorization o f such use o f the Armed Forces. That was laid out for\nus when we passed the W ar Powers Resolution \xe2\x80\x9d Id. at H2387. Other speakers made similar points See id at\nH 2386 (remarks o f Cong Cham bliss) (\xe2\x80\x9c I do not think that now is the time to have a constitutional showdown\non the W ar Powers Act \xe2\x80\x9d ), id at H2389 (remarks o f Cong. Stark) (H. Con. Res. 82 \xe2\x80\x9c is of the highest priority\nbecause we m ust exercise our obligation under the War Powers Act to debate the use of military force\xe2\x80\x9d ), id at\nH2423 (rem arks o f Cong. Leach) ( \xe2\x80\x9c The vote [w e take] on this resolution and the others we will take today are\nnecessitated by .\nthe W ar Powers Resoluuon \xe2\x80\x9d ). Still more pointedly, Congressman Kucinich reminded the House\nthat \xe2\x80\x9c Section 5 o f the W ar Powers Resolution states that the President must terminate the use o f force after 60\ndays unless Congress, first, declares war, second, enacts explicit authorization of the use of force; or third, extends\nthe 60-day period \xe2\x80\x9d Id. at H2446.\n\n348\n\n\x0cAuthorization fo r Continuing Hostilities in Kosovo\n\nThe next week, the House and Senate held a joint conference on H.R. 1664\nand H.R. 1141, 106th Cong. (1999), another emergency supplemental funding bill\nthat up to that point had focused on providing relief to Central American nations\ndevastated by hurricanes. During the three day conference, the conferees stripped\nH.R. 1664 of the appropriations relating to Kosovo and other military funding\nand added those appropriations to H.R. 1141. See H.R. Conf. Rep. No. 106-143,\nat 61 (1999) ( \xe2\x80\x9c The conferees have agreed to include in this conference report\non H.R. 1141 matters addressed in the House version of H.R. 1664 as an expedient\napproach to getting appropriations enacted into law for the important requirements\nrelated to the conflict in Kosovo and Southwest Asia (Operation Desert Fox).\xe2\x80\x9d ).\nAs the conference report explained, \xe2\x80\x9c the conference agreement recommend[ed]\na total of $10,196,495,000 in new budget authority for the Department of Defense,\nfor costs resulting from ongoing contingency operations in Southwest Asia and\nKosovo, as well as other urgent high priority military readiness matters.\xe2\x80\x9d Id. at\n75. Specifically, the conferees agreed to provide $5,007,300,000 \xe2\x80\x9c for the \xe2\x80\x98Over\xc2\xad\nseas Contingency Operations Transfer Fund\xe2\x80\x99 for costs relating to Operation Allied\nForce and related NATO activities concerning Kosovo, and operations in South\xc2\xad\nwest Asia. Of this amount, $3,907,300,000 is provided for personnel and oper\xc2\xad\nations costs stemming from these operations. An additional $1,100,000,000 is pro\xc2\xad\nvided on a contingent emergency basis to meet expected munitions and readinessrelated Kosovo expenses, and will be made available only to the extent funds\nare requested in a subsequent budget request by the President.\xe2\x80\x9d Id. at 76. The\nconferees further agreed to appropriate $984,300,000 for munitions procurement\n\xe2\x80\x9c associated with operations in Kosovo and Southwest Asia,\xe2\x80\x9d id., and $16,469,000\n\xe2\x80\x9c for additional military personnel pay and allowances in support of contingency\noperations in Southwest Asia,\xe2\x80\x9d id. They also agreed to appropriate $475,000,000\n\xe2\x80\x9c to be used for construction of mission, readiness and force protection items in\nrelation to the conflict in the Balkans, and other contingencies throughout the\nregion.\xe2\x80\x9d Id. at 81. Finally, the conferees appropriated over $1 billion for Kosovo\nhumanitarian assistance, including $149,200,000 for \xe2\x80\x9c humanitarian food aid in\nthe Balkans and other regions of need,\xe2\x80\x9d id. at 74, $105,000,000 \xe2\x80\x9c for assistance\nfor Albania, Macedonia, Bulgaria, Bosnia-Herzegovina, Montenegro, and\nRomania, and for investigations and related activities in Kosovo and in adjacent\nentities and countries regarding war crimes,\xe2\x80\x9d id. at 79, and $100,000,000 \xe2\x80\x9c for\ncosts related to assisting in the temporary resettlement of displaced Kosovar Alba\xc2\xad\nnians,\xe2\x80\x9d id. at 81.\nThe House debated H.R. 1141 on May 18 and passed the bill by a 269-158\nvote on the same day. See 145 Cong. Rec. H3269 (daily ed. May 18, 1999).\nThe Senate debated the bill on May 20 and passed it by a 64\xe2\x80\x9436 vote on the\nsame day. See 145 Cong. Rec. S5682 (daily ed. May 20, 1999).\nThe bill signed by the President, entitled \xe2\x80\x9c [a]n Act [mjaking emergency supple\xc2\xad\nmental appropriations for the fiscal year ending September 30, 1999, and for other\n349\n\n\x0cOpinions o f the Office o f Legal Counsel in Volume 24\n\npurposes,\xe2\x80\x9d appropriated well over $5 billion to fund efforts in Kosovo. The prin\xc2\xad\ncipal provision concerning funding, found in Chapter 3 of Title II of the bill (the\nTitle entitled \xe2\x80\x9c Emergency National Security Supplemental Appropriations\xe2\x80\x9d ),\nreads as follows:\nOPERATION AND MAINTENANCE\nOverseas Contingency Operations Transfer Fund\n(Including Transfer of Funds)\nFor an additional amount for \xe2\x80\x9c Overseas Contingency Operations\nTransfer Fund\xe2\x80\x9d , $5,007,300,000, to remain available until\nexpended: Provided, That the entire amount made available under\nthis heading is designated by the Congress as an emergency require\xc2\xad\nment pursuant to section 251(b)(2)(A) of the Balanced Budget and\nEmergency Deficit Control Act of 1985, as amended: Provided fu r\xc2\xad\nther, That of such amount, $1,100,000,000 shall be available only\nto the extent that the President transmits to the Congress an official\nbudget request for a specific dollar amou nt . . . .\n113 Stat. at 76-77. Another section o f Chapter 3 appropriates $300,000,000\nto remain available for obligation until September 30, 2000 . . .\nonly for the accelerated acquisition and deployment of military\ntechnologies and systems needed f o r the conduct o f Operation\nA llied Force, or to provide accelerated acquisition and deployment\nof military technologies and systems as substitute or replacement\nsystems for other United States regional commands which have had\nassets diverted as a result of Operation Allied Force.\nId. at 78 (emphasis added). The other relevant appropriations discussed in the\nConference Report are found in various Chapters of Title II of the bill. See, e.g.,\n\nChapter 1 (food assistance); Chapter 3 (personnel, procurement); Chapter 4\n(humanitarian assistance); Chapter 5 (resettlement); Chapter 6 (construction).28\nFinally, section 2006 of the bill provides as follows:\nSec. 2006. (a) Not more than 30 days after the date of the enact\xc2\xad\nment of this Act, the President shall transmit to Congress a report,\n28 For exam ple, Chapter Four o f the bill provides \xe2\x80\x9c [f]or an additional amount for \xe2\x80\x98Economic Support Fund,\xe2\x80\x99\n$105,000,000, to remain available until September 30, 2000, for assistance for Albania, Macedonia, BosniaH erzegovina, Bulgaria, Montengro, and Romania, and for investigations and related activities in Kosovo and in\nadjacent entities and countries regarding war c rim e s \xe2\x80\x9d 113 Stat. at 84. Chapter Five provides \xe2\x80\x9d [f]or an additional\namount for \xe2\x80\x98Refugee and Entrant Assistance,\xe2\x80\x99 such sums as necessary to assist in the temporary resettlement of\ndisplaced Kosovar Albanians, not to exceed $100,000,000, which shall remain available through September 30,\n2001 \xe2\x80\x9d Id at 85.\n\n350\n\n\x0cAuthorization fo r Continuing Hostilities in Kosovo\n\nin both classified and unclassified form, on current United States\nparticipation in Operation Allied Force. The report should include\ninformation on the following matters:\n(1) a statement of the national security objectives involved\nin United States participation in Operation Allied Force;\n(2) an accounting of all current active duty personnel\nassigned to support Operation Allied Force and related\nhumanitarian operations around Kosovo to include total\nnumber, service component and area of deployment (such\naccounting should also include total numbers of personnel\nfrom other NATO countries participating in the action);\n(3) additional planned deployment of active duty units in\nthe European Command area of operations to support Oper\xc2\xad\nation Allied Force, between the date of the enactment of\nthis Act and the end of fiscal year 1999;\n(4) additional planned Reserve component mobilization,\nincluding specific units to be called up between the date\nof the enactment of this Act and the end of fiscal year 1999,\nto support Operation Allied Force;\n(5) an accounting by the Joint Chiefs of Staff on the transfer\nof personnel and material from other regional commands to\nthe United States European Command to support Operation\nAllied Force and related humanitarian operations around\nKosovo, and an assessment by the Joint Chiefs of Staff of\nthe impact any such loss of assets has had on the warfighting capabilities and deterrence value of these other\ncommands;\n(6) levels of humanitarian aid provided to the displaced\nKosovar community from the United States, NATO member\nnations, and other nations (figures should be provided by\ncountry and the type of assistance provided whether finan\xc2\xad\ncial or in-kind); and\n(7) any significant revisions to the total cost estimate for\nthe deployment of United States forces involved in Oper\xc2\xad\nation Allied Force through the end of fiscal year 1999.\n351\n\n\x0cOpinions o f the Office o f Legal Counsel in Volume 24\n\n(b) OPERATION ALLIED FORCE. \xe2\x80\x94 In this section, the term\n\xe2\x80\x9c Operation Allied Force\xe2\x80\x9d means operations of the North Atlantic\nTreaty Organization (NATO) conducted against the Federal\nRepublic of Yugoslavia (Serbia and Montengro) during the period\nbeginning on March 24, 1999, and ending on such date as NATO\nmay designate, to resolve the conflict with respect to Kosovo.\n113 Stat. at 80.\nPub. L. No. 106-31 specifically appropriated over $5 billion to fund continuing\nhostilities in Kosovo, but it did not make specific reference to the WPR.29 The\nW PR\xe2\x80\x99s 60 day clock ran on May 25, four days after the President signed Pub.\nL. No. 106-31.30\nAs will be shown in greater detail in the following subparts, the congressional\ndebates and the text of Pub. L. No. 106-31 make clear that Congress was\nunquestionably aware that it was funding the hostilities in Kosovo. Moreover, the\nappropriations bill was specifically targeted in substantial degree to the President\xe2\x80\x99s\nrequest for funds to continue the military action in Kosovo. Congress, in other\nwords, used its constitutional authority to appropriate funds to allow the President\nto continue hostilities in the Federal Republic of Yugoslavia. In light of the nature\nof the bill and the historical precedent, discussed above, for Congress to authorize\nhostilities through appropriations measures, Pub. L. No. 106-31 would, in the\nabsence of the WPR, have constituted constitutionally adequate authorization for\ncontinued bombing in the region.\n2. Text\n\nOn its face, H.R. 1664 provided authorization, in the form of an appropriations\nmeasure, for continuing military operations \xe2\x80\x94 or, more specifically, for continuing\nUnited States participation in the NATO air campaign \xe2\x80\x94 in Kosovo. The bill itself\nwas entitled \xe2\x80\x9c [a]n Act Making emergency supplemental appropriations fo r mili\xc2\xad\ntary operations, refugee relief, and humanitarian assistance relating to the conflict\nin K osovo \xe2\x80\x9d (emphasis added). In bearing that title, H.R. 1664 plainly indicated\nthe main purpose for which the appropriated funds would be spent. Although H.R.\n29 In this respect, Pub. L No. 106-31 differs from sections 2 and 6 o f the Multinational Force in Lebanon Resolu\xc2\xad\ntion, 97 Stat. at 805, and from section 2(c)(1) o f the Authorization for Use of Military Force Against Iraq Resolution,\n105 Stat. at 4, both o f which referred back to section 5(b) of the W PR See supra note 7\n30 A lthough neither the distnct court nor the Court o f Appeals addressed the merits of the suit brought against\nthe President by 31 Members o f Congress, see supra p. 328, D istnct Court Judge Friedman did observe in dicta\nthat Pub. L No. 106-31 did not constitute an \xe2\x80\x9c authorization\xe2\x80\x9d within the meaning of the W PR See Campbell,\n52 F Supp.2d at 44 n 9 ( \xe2\x80\x9c W hile neither the d efeat of the House concurrent resolution nor the passage of the Appro\xc2\xad\npriations Act constitutes an \xe2\x80\x98authorization\xe2\x80\x99 within the meaning o f the W ar Powers Resolution, see 50 U S.C. \xc2\xa7 1547,\ncongressional action on those measures is relevant to the legislative standing analysis.\xe2\x80\x9d ) For reasons described\nin this opinion, w e conclude that the appropriation did constitute authorization to continue Operation Allied Force,\nregardless o f whether Congress complied with the legislative requirements specified by an earlier Congress in the\nW PR\n\n352\n\n\x0cAuthorization fo r Continuing Hostilities in Kosovo\n\n1141 did not bear a title explicitly referencing the conflict in Kosovo, its title\n(indicating that it was a \xe2\x80\x9c emergency supplemental appropriation]\xe2\x80\x9d ) as well as\nits direct connection to H.R. 1664, made it clear that it too was substantially,\nif not primarily, concerned with funding the ongoing military effort in Kosovo.\nFurthermore, particular provisions of the appropriation statute underscore that\nCongress, in enacting the appropriation, authorized the President to continue mili\xc2\xad\ntary operations in Kosovo for an indeterminate period, but at least to the end\nof Fiscal Year 1999.31 For example, section 2006(b) defines the phrase \xe2\x80\x9c Oper\xc2\xad\nation Allied Force\xe2\x80\x9d as the \xe2\x80\x9c operations of the North Atlantic Treaty Organization\n(NATO) conducted against the Federal Republic of Yugoslavia (Serbia and Mon\xc2\xad\ntenegro) during the period beginning on March 24, 1999, and ending on such\ndate as NATO may designate, to resolve the conflict with respect to Kosovo.\xe2\x80\x9d\n113 Stat. at 80. Moreover, section 2006(a) requires that the President, \xe2\x80\x9c[n]ot more\nthan 30 days after the enactment o f this Act, . . . transmit to Congress a report\n. . . on current United States participation in Operation Allied Force.\xe2\x80\x9d Id.\n(emphasis added). The report is to include a statement of national security objec\xc2\xad\ntives involved in Operation Allied Force, \xc2\xa7 2006(a)(1), as well as information\nregarding additional planned deployment of certain active duty units to support\nAllied Force between the date of enactment and the end of fiscal year 1999,\n\xc2\xa7 2006(a)(3), additional planned reserve component mobilization, including spe\xc2\xad\ncific units to be called up between the date of enactment and the end of fiscal\nyear 1999 to support Allied Force, \xc2\xa7 2006(a)(4), and any significant revisions to\nthe total cost estimate for the deployment of U.S. forces involved in Allied Force\nthrough the end of fiscal year 1999, \xc2\xa7 2006(a)(7).32\nThese reporting requirements make sense only on the assumption that the Presi\xc2\xad\ndent was authorized to continue United States participation in Operation Allied\nForce for at least thirty days after the enactment of Pub. L. No. 106-31, a period\nthat necessarily extended beyond May 25, when the 60 day \xe2\x80\x9c clock\xe2\x80\x9d had expired.\nIndeed, the reporting requirements assume that the President could deploy addi\xc2\xad\ntional active duty units in support of Operation Allied Force, and could mobilize\nreserves to that end, at various times between the enactment of the bill and the\nend o f Fiscal Year 1 9 9 9 \xe2\x80\x94 a period that again extended well beyond the 60 day\n\xe2\x80\x9c clock.\xe2\x80\x9d Finally, section 2006(a)(7) signaled that Congress wished to keep\ninformed of the estimated costs of deploying United States forces in Operation\nAllied Force through the end of the fiscal year. Taken together, these provisions\nshow that Members of Congress foresaw the possibility that the President would\n31 We note that Chapter 3 o f Title II, which substantially met the Administration\xe2\x80\x99s request for supplemental funding\nfor the Kosovo operation, appropnates $5,007,300,000 \xe2\x80\x9c to remain available until expended.\xe2\x80\x9d 113 Stat at 76 Thus,\nthese funds were to remain legally available for expenditure even after the end o f Fiscal Year 1999. Id Insofar\nas Congress authorized the continuation of hostilities by providing these funds, it therefore did not sunset that\nauthorization on September 30, 1999\n32 Id. We have been informed that the President submitted this report to Congress on August 19, 1999\n\n353\n\n\x0cOpinions o f the Office o f Legal Counsel in Volume 24\n\ncontinue the deployment after May 25, and that they were prepared to fund contin\xc2\xad\nued military hostilities through at least the end of Fiscal Year 1999.33\nMore generally, Pub. L. No. 106-31 m et the President\xe2\x80\x99s request for emergency\nsupplemental funding for the very explicit purpose of continuing military oper\xc2\xad\nations in Serbia and Kosovo. The obvious and stated purpose of the Administration\nin seeking this supplemental funding was to meet anticipated expenses of the cam\xc2\xad\npaign, including any expenses that would be incurred for operations after May\n25. In furnishing such funds, Congress clearly endorsed and authorized the\nAdministration\xe2\x80\x99s plans. Indeed, specific line items in the bill demonstrate\nCongress\xe2\x80\x99s belief that Operation Allied Force could continue after May 25. For\nexample, Chapter 3, dealing in part with procurement, appropriated $300 million\n\xe2\x80\x9c to remain available for obligation until September 30, 2000 . . . only for the\naccelerated acquisition and deployment of military technologies and systems\nneeded f o r the conduct o f Operation Allied Force, or to provide accelerated\nacquisition and deployment of military technologies and systems as [a] substitute\nor replacement systems for other United States regional commands which have\nhad assets diverted as a result of Operation Allied Force.\xe2\x80\x9d 113 Stat. 78 (emphasis\nadded). Again, the funding of \xe2\x80\x9c accelerated acquisition and deployment\xe2\x80\x9d of mili\xc2\xad\ntary technologies \xe2\x80\x9c needed for the conduct of Operation Allied Force\xe2\x80\x9d unquestion\xc2\xad\nably assumed that that need might exist, and could lawfully be met, after May\n25. Id.\nFurthermore, both H.R. 1141 and H.R. 1664 were plainly identified as emer\xc2\xad\ngency, supplem ental appropriations. Thus, Congress was well aware that the bill\nwas an extraordinary measure, wholly outside the routine budget process for the\nregular funding of Department of Defense activities. This was free-standing and\nwidely publicized legislation, introduced soon after several major Congressional\ndebates on the Administration\xe2\x80\x99s policy, for the explicit purpose of funding con\xc2\xad\ntinuing military operations in Kosovo. Congress decided to fund that operation.\n3. Legislative History\n\nThe legislative history of Pub. L. No. 106-31 strongly confirms this under\xc2\xad\nstanding of the bill\xe2\x80\x99s intent and effect. This part analyzes that history in four\nstages: (a) Secretary of Defense William S. Cohen\xe2\x80\x99s explanation of the Adminis\xc2\xad\ntration\xe2\x80\x99s request for emergency supplemental funding made on April 21, 1999,\nto the Defense Subcommittee of the House Appropriations Committee; (b) the\nHouse Appropriations Committee\xe2\x80\x99s consideration of H.R. 1664; (c) the first House\n33 Indeed, the House Appropriations Committee Report states that \xe2\x80\x9c [t]he Committee recognizes that the specific\nbudget estimates underlying the supplemental requests for Kosovo operations may require adjustments due to the\nevolvtng nature o f the air campaign, changes in deployment schedules and operational tempo, and other requirements\nassociated with current operations and currently planned forces which were not identified at the time the supplemental\nrequest was developed.\xe2\x80\x9d H.R. Rep. No 106-125, at 4 (1999)\n\n354\n\n\x0cAuthorization fo r Continuing Hostilities in Kosovo\n\nfloor debate on H.R. 1664 on May 6, 1999; and (d) the final House and Senate\nvotes on H.R. 1141 on May 18 and 20, 1999, respectively.\na. Secretary Cohen\'s Testimony\n\nThe Administration\xe2\x80\x99s statement to Congress of the purposes of seeking the\nsupplemental appropriation weigh heavily in favor of construing Pub. L. No. 10631 as an authorization to continue Operation Allied Force beyond the May 25\ncutoff.34 Of particular importance is Secretary of Defense William S. Cohen\xe2\x80\x99s\ntestimony at an April 21, 1999 hearing by the Subcommittee on Defense of the\nHouse Committee on Appropriations, in support of the Administration\xe2\x80\x99s request\nfor the supplemental appropriation. See Department o f Defense Appropriations fo r\n2000: Hearings Before the Defense Subcomm. o f the House Comm, on Appropria\xc2\xad\ntions, 106th Cong. 288 (1999) (Statement of William S. Cohen, Secretary of\n\nDefense). Secretary Cohen made plain the Administration\xe2\x80\x99s intent to use the pro\xc2\xad\nposed funding to go forward with Operation Allied Force, if necessary for a pro\xc2\xad\nlonged period. He stated:\nThis is an emergency, non-offset supplemental totaling $6.05 bil\xc2\xad\nlion: $5,458 billion for DoD and $591 million for the State Depart\xc2\xad\nment and international assistance programs. The DoD portion of\nthe supplemental has these major components:\nKosovo Military Operations ($3.3 billion). The request funds pro\xc2\xad\njected force levels and the current high operating tempo through\nthe end of the fiscal year. All U.S. forces that have been deployed\nor ordered to deploy are assumed to remain in theater and operate\nat current sortie and strike levels. The request does not fund pos\xc2\xad\nsible deployment of U.S. ground forces to Kosovo or peacekeeping\noperations or reconstruction there.\n\nNATO is engaged in a serious military effort in Kosovo. It will\nnot be quick, easy, or neat. We have to be prepared for the possi\xc2\xad\nbility of casualties among NATO forces. But we cannot falter, and\nwe will not fail.\nId. 291-92.\n34 We note also lhat the President advised Congress that \xe2\x80\x9c [i]t is not possible to predict how long either of these\noperations [air strikes and relief efforts] will continue. The duration o f the deployments depend[s] upon the course\no f events in Kosovo . . .\nLetter for Congressional Leaders Reporting on Airstnkes Against Serbian Targets in\nthe Federal Republic o f Yugoslavia (Serbia and Montenegro), 1 Pub Papers of William J Clinton 579, 520 (1999)\n\n355\n\n\x0cOpinions o f the Office o f Legal Counsel in Volume 24\n\nSecretary Cohen\xe2\x80\x99s statements plainly advised Congress of the Administration\xe2\x80\x99s\ndetermination to pursue military operations, if necessary, for an indefinite period\nbeyond May 25, and he specifically requested Congress to fund such operations\nat least \xe2\x80\x9c through the end of the fiscal year.\xe2\x80\x9d 35\nb. House Appropriations Committee Action\n\nShortly before the House Appropriations Committee considered H.R. 1664 on\nApril 29, Representative William Young, the Chairman of the Committee, stated\nthat \xe2\x80\x9c [t]his $12.9 billion bill recognizes that we are more deeply involved in\nKosovo than we were led to believe and that unless [President] Milosevic has\na major change of heart, our involvement will be deeper than originally antici\xc2\xad\npated.\xe2\x80\x9d Chairman Young Announces Kosovo Emergency Supplemental Bill,\nwww.house.gov/appropriations/news/106-l/pr00kosovo.html (Apr. 27, 1999).\nDuring the mark-up itself, Congressman Young said, \xe2\x80\x9c I\xe2\x80\x99m not sure what message\n[Milosevic] got from that [the House\xe2\x80\x99s April 28 votes on authorizing military\naction], but I can guarantee you when we pass this bill today, there will be no\ndoubt in the mind of Mr. Milosevic where we stand; that this Congress stands\nbehind our troops no matter where they are or what they\xe2\x80\x99re doing. And we\xe2\x80\x99re\ngoing to provide them with what they need to accomplish their mission . . . .\xe2\x80\x9d\nVerbatim Transcript, House of Representatives, Appropriations Committee\nMarkup, 1999 WL 252365 (F.D.C.H.) at 22-23 (Apr. 29, 1999) (\xe2\x80\x9c Transcript\xe2\x80\x9d ).\nSee also Tom Raum, Committee A pproves Kosovo Funds, 1999 WL 17061956\n(Apr. 29, 1999); Bill Ghent, Report on Markup o f Draft (Unnumbered): House\nAppropriations Panel Approves $ 13 Billion Kosovo Emergency Bill, LEGI\xc2\xad\nSLATE Report for the 106th Congress, at 2 (Apr. 29, 1999).36\nAlso during the mark-up, Congressman Obey clearly explained the Administra\xc2\xad\ntion\xe2\x80\x99s purpose in seeking the emergency appropriation, and the length of the oper\xc2\xad\nations it was intended to fund. He said:\nNow let me explain what it is we\xe2\x80\x99re doing.\nIn the administration\xe2\x80\x99s request for DOD, they asked for $5.5 billion\nfor military operations. To reimburse them for previous costs in\nIraq they asked for $272 million, and in Kosovo they asked for\n35 Id at 291 Further, according to press reports, during the hearing Secretary Cohen \xe2\x80\x9c several times described\nthe $6 billion as sufficient to fund through September the operations of an intensified air campaign, to replenish\nalready expended munitions and anticipated munitions needs and to call up and deploy nearly 26,000 reservists \xe2\x80\x9d\nGuy G ughotta & Bradley Graham, GOP Sees Opportunity fo r M ore Military M oney, The Washington Post, Apr.\n22, 1999, at A 18.\n36 Other Members o f Congress made similar statements before the House floor debate on the bill For example,\naccording to press reports. Congressman David Dreier, the Chairman o f the House Rules Committee (which framed\nthe rules for the debate over H R 1664), expressed the view that \xe2\x80\x9c President Clinton is acting within his authonty\nand \xe2\x80\x98Congress cannot hamstring his abilily\xe2\x80\x99 to win the war.\xe2\x80\x9d John Godfrey, Heated Debate Likely on Funding\nT he W ashington Times, May 6, 1999, at A12\n\n356\n\n\x0cAuthorization fo r Continuing Hostilities in Kosovo\n\n$3.3 billion. That was meant to finance the salaries, maintenance,\noperation, the whole shebang, for 500 U.S. aircraft that General\nClark initially asked for, for the 82 additional aircraft that he got\na month ago, and the 300 more that he\xe2\x80\x99s requested which have\nnot yet arrived.\nIt is meant to finance total saturation bombing of all air space in\nYugoslavia 24 hours a day fo r the remainder o f the fiscal year.\nIt is a huge operation.\nTranscript at 42 (emphasis added).\nc. The House May 6 Floor Debate\n\nThe floor debate on H.R. 1664 on May 6 also demonstrates that the House\nclearly understood that it was funding military operations that could well continue\nfor months after May 25. At the start of that debate, Congressman Obey stated\nsquarely that\n[t]he administration has asked about $6 billion to cover the cost\nof this war, plus they have asked for humanitarian assistance. The\namount that they have requested will pay for an 800-plane war,\n24 hours a day bombing of virtually every target in Yugoslavia\nthat one could imagine anywhere. That will be sustained on a daily\nbasis through the end o f the fiscal year.\n145 Cong. Rec. H2827 (daily ed. May 6, 1999) (remarks of Cong. Obey)\n(emphasis added); see also id. at H2856 (remarks of Cong. Obey).\nCongressman Young, also speaking at the start of the debate, discounted the\nApril 28 House votes on the Kosovo operation as \xe2\x80\x9c votes that gave Members an\nopportunity to voice their opinion in resolutions that were not truly binding,\xe2\x80\x9d\nand argued that the vote on H.R. 1664 \xe2\x80\x9c is the real message. This is a message\nto Milosevic that we are serious. This is a message to our troops that we are\nserious in providing them with what they need to accomplish their mission and\nto give themselves a little protection while they are at it.\xe2\x80\x9d Id. at H2828; see\nalso id. at H2858 (remarks of Cong. Lewis); id. at H2890 (remarks o f Cong.\nWicker); but see id. at H2818 (remarks of Cong. Goss) (\xe2\x80\x9c [L]ast week\xe2\x80\x99s debate\non the War Powers Act showed that Congress was of many minds on the policy\nissue, but this debate today is not about policy. . . . It is about money.\xe2\x80\x9d ). Speaker\nHastert likewise emphasized the need to support troops in action, stating that\n\xe2\x80\x9c [l]ast week, the House spoke on the President\xe2\x80\x99s policies concerning the engage\xc2\xad\nment in Kosovo; and, [c]learly, the House had some misgivings about those poli\xc2\xad\n357\n\n\x0cOpinions o f the Office o f Legal Counsel in Volume 24\n\ncies. But today, let there be no mistake, the United States Congress stands with\nits soldiers, sailors, and airmen as they defend America.\xe2\x80\x9d Id. at H2822.\nSome Members specifically argued that funding was necessary to continue\nOperation Allied Force. Congressman Dreier maintained that \xe2\x80\x9c the price of failure\nin Kosovo is simply too great at this point. . . . Congress must ensure that the\nresources are available to carry out that strategy.\xe2\x80\x9d Id. at H2821. Congressman\nSkelton said that the appropriation \xe2\x80\x9c ensures that our military has more than ade\xc2\xad\nquate resources to carry out the Kosovo air campaign.\xe2\x80\x9d Id. at H2829. Congress\xc2\xad\nman Knollenberg stated that, while he had \xe2\x80\x9c strong reservations about the decisions\nthat have led us to this point,\xe2\x80\x9d he \xe2\x80\x9c believe[d] it is important . . . that NATO\ncontinue its operation.\xe2\x80\x9d Id. at H2833. Congressman Gilman interpreted passage\nof the appropriation as showing that \xe2\x80\x9c we are fully supportive of what our military\nis doing at the present time in Kosovo.\xe2\x80\x9d Id. at H2834 (remarks of Cong. Gilman).\nOpponents of the bill also saw it as authorizing continuing operations in Kosovo.\nCongressman Stark specifically noted that \xe2\x80\x9c [appropriating defense funds for the\nattack on Yugoslavia gives the President the authorization needed under the War\nPowers Act to continue the air strikes and allow[s] him to use ground troops\nif necessary. However, if funds were withheld, the President would be required\nto remove the troops from their current mission by May 25, 1999.\xe2\x80\x9d Id. at H2839.\nCongressman Paul, another opponent, stated that \xe2\x80\x9c [f]unding is an endorsement\nof the war. We must realize that it is equivalent to it. We have not declared\nthis war. If we fund it, we essentially become partners to this ill-advised war.\xe2\x80\x9d\nId. at H2819.\nd. House and Senate Consideration o f Final Bill\n\nIn addition to the numerous explicit references to the Kosovo conflict contained\nin the joint conference report described above, the floor debates on the final\nversion of H.R. 1141 also demonstrate that Congress intended to enable the Presi\xc2\xad\ndent to continue the campaign for an indefinite period after the W PR\xe2\x80\x99s 60 day\n\xe2\x80\x98\xe2\x80\x98clock\xe2\x80\x99\xe2\x80\x99 had run.\n(i)\nAs he had done in the May 6 debate, Congressman Young again explained\nto the House the significance of the appropriation for the campaign in Kosovo:\nA no vote will be sending a message to Milosevic that we are not\nreally serious about bringing him to heel. He does not need to get\nthat message, he has got enough problems already. A no vote will\nbe against those soldiers and sailors and airmen and marines and\n358\n\n\x0cAuthorization fo r Continuing Hostilities in Kosovo\n\ncoastguardsmen who are involved in this conflagration, or war\n\n145 Cong. Rec. H3263 (daily ed. May 18, 1999).\nCongressman Lewis was no less clear and emphatic:\nThis bill is committed to funding our effort in Kosovo . . . . As\nwe move into the months ahead, none of us can predict what the\ncost might be. But this bill is a reflection of the fact that the House\nwants to make sure that adequate funding is present no matter how\nlong the war may extend itself. . . .\nI must say, Mr. Speaker, one of the messages we are sending here\nto our troops that is especially important involves the advanced\nfunding of pay adjustments for the troops. That essentially tells\nthem in clear terms that the House is not only supporting their effort\nin Kosovo, but intends to continue to support their service for the\ncountry as long as it might continue in the months and the years\nahead.\nId. at H3256.\n\nOther speakers stressed the need to fund the NATO mission in Kosovo. Con\xc2\xad\ngressman Dreier found the bill \xe2\x80\x9c absolutely necessary to offset the very significant\ncosts of the Kosovo campaign. . . . [I]t is now a very clear national interest that\nboth the United States of America and the North Atlantic Treaty Organization\nalliance prevail in this conflict.\xe2\x80\x9d Id. at H3232-33. Congressman Levin argued\nthat \xe2\x80\x9c [t]he House should move quickly to approve the urgently needed funding\nto continue NATO\xe2\x80\x99s military operations against Slobodan Milosevic\xe2\x80\x99s forces in\nKosovo.\xe2\x80\x9d Id. at H3263. Congressman Bliley said that the bill would \xe2\x80\x9c support\nNATO so that we can bring the conflict in Kosovo to a speedy and successful\nconclusion.\xe2\x80\x9d Id. at H3267.\nAs in the May 6 debate, other House members emphasized the need to support\ntroops in combat. Congressman Regula stated that \xe2\x80\x9c the purpose of this bill is\nto support our troops overseas.\xe2\x80\x9d Id. at H3257. Congressman Packard said that\n\xe2\x80\x9c H.R. 1141 supports America\xe2\x80\x99s troops, and regardless of whether you agree with\nthe policies of this Administration, we can\xe2\x80\x99t afford to neglect the needs of those\nwho must carry them out.\xe2\x80\x9d Id. at H3259. Congressman Weygand voted for the\nbill \xe2\x80\x9c because I believe it is absolutely necessary to provide our troops with the\ntools and support they need to complete their mission.\xe2\x80\x9d Id. at H3264.\nOpponents of the bill also repeated their warnings that the bill would allow\nthe continuation of hostilities. Congressman Kucinich thought that the bill \xe2\x80\x9c con\xc2\xad\ntains provisions that will enable the prosecution of a wide war against the Federal\n359\n\n\x0cOpinions o f the Office o f Legal Counsel in Volume 24\n\nRepublic of Yugoslavia, even though Congress has expressly voted not to declare\nwar.\xe2\x80\x9d Id. at H3226. Congressman Paul said, \xe2\x80\x9c the real principle here today that\nwe are voting on is whether or not we are going to fund an illegal, unconstitutional\nwar. It does not follow the rules of o u r Constitution. It does not follow the rules\nof the United Nations Treaty. It does not follow the NATO Treaty. And here\nwe are just permitting it, endorsing it but further funding it.\xe2\x80\x9d Id. at H3228.\n(ii)\nThe Senate debated H.R. 1141 tw o days after the House vote. The Senate\xe2\x80\x99s\nconsideration of the Kosovo appropriation was much less extensive than the\nHouse\xe2\x80\x99s. As Senator Byrd observed on May 20, 1999 \xe2\x80\x94 the day H.R. 1141 was\ndebated and voted on in the Senate\xe2\x80\x94 \xe2\x80\x9c [T]he first time the Kosovo funding has\nbeen before the Senate is today in the form of this conference agreement on H.R.\n1141.\xe2\x80\x9d 145 Cong. Rec. S5646 (daily ed. May 20, 1999).37\nAlthough most of the speakers in the Senate debate focused on other aspects\nof the bill, an opponent, Senator Fitzgerald, spelled out very precisely the effect\nthat passage of the appropriation would have on the issue of war powers:\n[I]n the past, American presidents have argued that a congressional\nappropriation for U.S. military action abroad constitutes a congres\xc2\xad\nsional authorization for the military action. I will not vote for an\nauthorization of money that may be construed as authorizing, or\nencouraging the expansion of, the President\xe2\x80\x99s military operations\nin Kosovo. I will oppose the appropriation of almost $11 billion\nfor a war I have consistently spoken out against.\n145 Cong. Rec. S5665 (daily ed. M ay 20, 1999).38\n37 The Senate was aware, well before the floor debate on H R. 1141, of the effect of the WPR on its deliberations\nover Kosovo. Earlier in the session. Senator McCain had introduced a measure, S.J. Res 20, to authonze the President\nto use \xe2\x80\x9c all necessary force\xe2\x80\x9d to achieve the goals o f Operation Allied Force. Id at 2. Although the Senate had\nat first seemed unlikely to take up that measure, \xe2\x80\x9c Senate Parliamentanan Bob Dove announced April 28 .\nthat\nthe resolution fit the critena for tnggenng the W ar Powers Resolution, even though it was not designed with that\nin m ind.\xe2\x80\x9d Pat Towell, Congress Set To Provide Money, But No Guidance, fo r Kosovo Mission, C.Q. Weekly, May\nI, 1999, at 1037. W hen the Senate debated S.J. Res 20 on M ay 3, 1999, Senator Feingold drew attention to the\nfact that the measure \xe2\x80\x9c has been determined to be pnvileged under the terms of . . the War Powers Resolution,\xe2\x80\x9d\nand emphasized that \xe2\x80\x9c [n]ot only must [the W PR] be taken seriously, but because of the appropnate ruling of the\nParliam entanan . . , it is being taken seriously.\xe2\x80\x9d 145 Cong. Rec S4525 (daily ed May 3, 1999) (remarks of Sen\nFeingold). Further, he added that before the Parliam entanan\xe2\x80\x99s ruling, \xe2\x80\x9c many people did not realize for a while,\nthat the W ar Powers Resolution and its clock w ere ticking " I d S J. Res. 20 was tabled by the Senate by a 7 8 22 vote on M ay 4, 1999. 145 Cong. Rec. S4616 (daily ed M ay 4, 1999) Later, the Senate passed a concurrent\nresolution authorizing the President to conduct military air operations and missile stnkes in cooperation with our\nNATO allies against the Federal Republic of Yugoslavia. See supra note 2 6 .\n38 Senator G orton, another opponent of the bill, also objected that it would \xe2\x80\x9c pay for the costs o f the war in\nthe Balkans.\xe2\x80\x9d Id. at S5650\n\n360\n\n\x0cAuthorization fo r Continuing Hostilities in Kosovo\n\nSpeaking immediately after Senator Fitzgerald, Senator Dodd, a supporter of\nthe bill, explained that the appropriation would indeed support the continuation\nof military action:\nThe original intent of the President\xe2\x80\x99s request for emergency appro\xc2\xad\npriations from Congress was to provide our men and women in\nuniform with the equipment and materiel they need to effectively\nstrike the Yugoslav military. While I am heartened by recent reports\nof a possible diplomatic solution, we must remain prepared to con\xc2\xad\ntinue our military efforts in the absence of an enforceable diplo\xc2\xad\nmatic solution which meets NATO\xe2\x80\x99s conditions.\n\nOur military, however, cannot effectively combat this evil if we\nin the Congress fail to offer them our support. One month ago,\nPresident Clinton sent a request to Congress for $6 billion in order\nto fund our military operations through the end o f the fiscal year.\nThat money is included in this bill.\nId. at S5666 (emphasis added).\n\nSenator Stevens, the Chairman of the Senate Appropriations Committee,\nasserted that the funding was intended to provide for military operations in Kosovo\nthrough the remainder of the calendar (not merely fiscal) year:\nHopefully we will not have to see another emcrgcncy supplemental\nwith regard to the conduct of the Kosovo operation during the\nperiod of time we will be working on the regular appropriations\nbills for the year 2000. In effect, we have reached across and gone\nin \xe2\x80\x94 probably this bill should be able to carry us, at the very least\nto the end of this current calendar year. The initial requests of the\nPresident took us to the end of the fiscal year on September 30.\nId. at S5644.\n\nAs in the House debate, several speakers voiced the need to support troops\nin ongoing combat. For example, Senator Warner said, \xe2\x80\x9c I support this bill for\none simple reason \xe2\x80\x94 we are at war. As we speak, we have military forces engaged\nin combat \xe2\x80\x94 going in harm\xe2\x80\x99s way \xe2\x80\x94 in the skies over the Balkans and Iraq.\nWhether or not there is agreement on how these risk-taking operations are being\nprosecuted is not now the question. We must support our military forces who\nare risking their lives daily to carry out the missions they have been assigned.\xe2\x80\x9d\nId. at S5661. See also id. at S5650-51 (remarks of Sen. Hutchison); id. at S565657 (remarks of Sen. Domenici); id. at S5662-63 (remarks of Sen. Durbin); id.\nat S5664-65 (remarks of Sen. Harkin).\n361\n\n\x0cOpinions o f the Office o f Legal Counsel in Volume 24\n\nV. Pub. L. No. 106-31 and the War Pow ers Resolution\n\nAs described in the preceding section, the text of Pub. L. No. 106-31 and the\nlegislative record as a whole make clear that Congress intended, by enacting the\nPresident\xe2\x80\x99s request, to enable the President to continue U.S. participation in Oper\xc2\xad\nation Allied Force for as long as funding remained available, i.e., through at least\nthe end of the fiscal year on September 30, and indeed even longer.39 Congress\nwas repeatedly advised of this effect by its own Members (both supporters and\nopponents o f continuing the operation) and by Administration witnesses. For at\nleast the month that the Administration\xe2\x80\x99s request was pending, and at a time when\nthe duration of hostilities was uncertain, Congress was aware that a vote for the\nbill would be a vote to authorize the campaign.40\nIn this context, the concerns that have been voiced about finding congressional\nauthorization in general appropriation statutes are not applicable. The purposes\nof both H.R. 1664 and H.R. 1141 were plain on the face of the bills. Nor was\nthis a case in which the Committees with jurisdiction over war powers \xe2\x80\x9c would\n[have been] somewhat surprised to learn that their careful work on the substantive\nlegislation had been undone by the simple- and brief-insertion of some inconsistent\nlanguage in Appropriations Committees\xe2\x80\x99 Reports.\xe2\x80\x9d Hill, 437 U.S. at 191 (rejecting\nAuthority\xe2\x80\x99s argument that a series of appropriations funding the Tellico Dam\nProject constituted an implied repeal of the Endangered Species Act). In this case,\n\xe2\x80\x9c Congress as a whole was aware o f \xe2\x80\x99 the basic terms of the special, emergency\nappropriation for continuing military operations in Kosovo. Id. at 192. The bill\nwas surely among the most visible and important pieces of legislation introduced\n39 As noted above, the core appropriation of som e $5 billion was \xe2\x80\x9c available until expended.\xe2\x80\x9d 113 Stat at 7 6 77 In other words, it was a \xe2\x80\x9c no-year\xe2\x80\x9d appropriation that remained legally available even after September 30.\n40 In reaching this conclusion, we need not and do not decide that the appropriation authonzed the introduction\nof United States Forces onto the ground in Serbia or Kosovo Interpretation of Pub. L No 106-31 must take into\naccount the House o f Representatives\xe2\x80\x99 vote on April 28 to block funding for ground troops without additional specific\nauthorization from Congress, the President\xe2\x80\x99s Letter to the Speaker o f the House of Representatives of April 28,\n1999, agreeing not to deploy ground troops in a \xe2\x80\x9c non-permissive environment\xe2\x80\x9d without first \xe2\x80\x9c ask[ing] for Congres\xc2\xad\nsional support,"s e e 145 Cong Rec. H2883 (daily ed. May 6, 1999) (reprinting letter); see also 145 Cong. Rec.\nH2405 (daily ed Apr. 28, 1999) (remarks of C ong Gephardt, explaining President\xe2\x80\x99s representations), 145 Cong\nRec S4531 (daily ed. May 3, 1999) (reprinting sim ilar letter o f April 28, 1999, to Senate Majority Leader); Chairman\nY oung\xe2\x80\x99s statem ent that \xe2\x80\x9c [tjhere is nothing in [H.R 1664] that would authonze any money to be used to deploy\nground troops into Kosovo,\xe2\x80\x9d 145 Cong. Rec H2882 (daily ed. May 6, 1999); Congressman Lewis\xe2\x80\x99s statement dunng\nthe House A ppropnations C om m ittee\xe2\x80\x99s mark-up that \xe2\x80\x9c not a dime o f these funds will be spent for troops being\nplaced in K osovo,\xe2\x80\x9d Transcnpt at 10; and Secretary Cohen\xe2\x80\x99s statement o f Apnl 21 that the supplemental appropriation\nwill not fund the introduction o f ground troops to Kosovo. Moreover, on May 25, 1999, Senator Warner, speaking\nin opposition to a proposed rider to S. 1059, 106th Cong (1999), the Department of Defense authonzation bill\nfor Fiscal Y ear 2000 that would have required Congressional authorization before United Slates ground troops could\nbe deployed in Yugoslavia, stated that, on that day, the Secretaries o f State and Defense and the National Security\nAdviser, in a meettng with Senators, had \xe2\x80\x9c said without any equivocation whatsoever that the President would for\xc2\xad\nmally com e to the Congress and seek legislation\xe2\x80\x9d before deploying ground troops 145 Cong. Rec. S5939 (daily\ned M ay 25, 1999) In light o f those actions and statements, which o f course were closely contemporaneous with\nCongressional consideration o f H.R. 1664 and H.R. 1141, it is unlikely that Congress intended to provide authoriza\xc2\xad\ntion for the introduction o f ground troops into Serbia or Kosovo by enacting this appropriation. We note, however,\nthat the House voted on M ay 6 to reject an amendment, proposed by Congressman Istook, to ban the use of the\nsupplemental appropriation to fund the deployment o f ground troops into Yugoslavia, \xe2\x80\x9c except in time of w ar.\xe2\x80\x9d\n145 Cong. Rec H2879, H 2891-92 (daily ed. M ay 6, 1999).\n\n362\n\n\x0cAuthorization fo r Continuing Hostilities in Kosovo\n\nbefore the first session of the 106th Congress, and both the Administration and\nindividual members pointedly and publicly underscored its significance. Finally,\nunlike, for example, the Tellico Dam appropriations involved in Hill, which \xe2\x80\x9c rep\xc2\xad\nresented relatively minor components of the lump-sum amounts\xe2\x80\x9d of the\nAuthority\xe2\x80\x99s entire budget, H.R. 1141 was a freestanding bill that, in the form\nin which it was presented by the Administration, focused narrowly on military\nspending for Operation Allied Force. Id. at 189.41 In sum, H.R. 1141 was intended\nto enable the President to continue Operation Allied Force, and to furnish him\nwith the necessary funds for doing so, even if that operation were not brought\nto a successful conclusion by May 25. Pub. L. No. 106-31 is thus analytically\nsimilar to earlier congressional appropriation statutes, discussed in Section II, that\nauthorized executive branch action (including the statutes that played a role in\nauthorizing conflict).\nThe House\xe2\x80\x99s votes on the four other Kosovo-related measures on April 28 do\nnot lead us to change our conclusion. See supra pp. 348-49. Although the House\ndid defeat the resolution declaring a state of war between the United States and\nSerbia and passed a resolution blocking funding for ground troops without addi\xc2\xad\ntional specific authorization, it also defeated a resolution that would have directed\nthe President to remove the Armed Forces from the region and tied on the resolu\xc2\xad\ntion that would have specifically authorized the President to conduct military air\noperations against Serbia. The message of all these votes is ambiguous. The only\nclear message that Congress sent regarding the continuation of military operations\nin Serbia is Pub. L. No. 106-31, which appropriated over $5 billion to continue\nthese operations. As we have already explained, this was sufficient to constitute\nspecific authorization within the meaning of the WPR.\nMoreover, the argument, explained earlier, see supra p. 338-39, and invoked\nby Judge Randolph in his concurrence in C am pbell*2 that appropriation statutes\nshould not be understood as authorizing hostilities because they might just as\neasily be intended to protect troops already committed, carries little weight here.\nWe recognize that a number of statements made by Members of Congress {e.g.,\nSenator Warner, Congressman Weygand) indicate an intention to \xe2\x80\x9c support\xe2\x80\x9d\nalready committed troops. These isolated statements, however, do not demonstrate\nthat Congress did not intend to authorize continuing hostilities. The United States\ndid not have ground troops in combat in Serbia or Kosovo at the time Pub. L.\nNo. 106-31 was enacted, but rather was engaged in an air campaign in which\nU.S. forces were in harm\xe2\x80\x99s way only for the length of each sortie flown. If Con\xc2\xad\n41 Although Pub L. No 106-31 o f course ended up making a range of appropriations m addition to those for\nthe Kosovo effort, the legislative history makes clear that the b ill\xe2\x80\x99s central, overriding purpose was to fund the\nhostilities in Yugoslavia.\n42See Campbell, 203 F 3 d at 31 n.10 (Randolph, J , concum ng) ( \xe2\x80\x9c The majority attaches some importance to\nCongress\xe2\x80\x99s decision to authonze funding for Operation Allied Force and argues that Congress could have denied\nfunding if it wished to end the war However, in M itchell v Laird\nwe held that, as \xe2\x80\x98every schoolboy know s,\xe2\x80\x99\nCongress may pass such legislation, not because it is in favor o f continuing the hostilities, but because it does\nnot want to endanger soldiers in the field The War Powers Resolution itself makes the same point \xe2\x80\x9d )\n\n363\n\n\x0cOpinions o f the Office o f Legal Counsel in Volume 24\n\ngress did not intend to authorize continuing hostilities, but instead intended only\nto protect previously deployed troops, it could have, and most likely would have,\nstyled its rejection of authorization for continuing hostilities by either phasing out\nappropriated funds over time, as it did in the case of Somalia, or by prohibiting\nthe use of funds for certain purposes, as it did with the Cooper-Church amend\xc2\xad\nment. Here, Congress chose neither option. Instead, it appropriated funds \xe2\x80\x9c until\nexpended\xe2\x80\x9d without placing any limitations on the use of those funds. The actual\nsteps taken by Congress demonstrate that it intended to authorize the President\nto continue hostilities, and, in particular, to continue the air campaign. See Berk,\n317 F. Supp. at 724 (noting that even though some Members of Congress stated\nthat \xe2\x80\x9c their votes for the appropriation did not constitute approval of an undeclared\nwar [in Vietnam],\xe2\x80\x9d nonetheless the appropriation \xe2\x80\x9c gave Congressional approval\nto military expenditures in Southeast Asia\xe2\x80\x9d ); id. at 728 (finding that the \xe2\x80\x9c dis\xc2\xad\nclaimers by individual Congressmen of any approval of the Vietnam conflict\xe2\x80\x9d\ncould only \xe2\x80\x9c \xe2\x80\x98disclose the motive and could not disprove the fact of authoriza\xc2\xad\ntion\xe2\x80\x99 \xe2\x80\x9d (citation omitted)). In light o f Congress\xe2\x80\x99s possible alternatives, reading the\nstatements at issue as indicating an intent to protect already deployed troops\nsimply \xe2\x80\x9c doesn\xe2\x80\x99t make sense.\xe2\x80\x9d Ely, supra, at 129. It is more reasonable to interpret\nthose statements as indicating an intent to \xe2\x80\x9c support\xe2\x80\x9d American troops by author\xc2\xad\nizing the President to continue hostilities so those troops would be able to com\xc2\xad\nplete their missions successfully.\nSection 8(a)(1) does not lead to a contrary conclusion. As discussed above,\nthat section cannot constitutionally be read to take from Congress a mechanism\nfor authorizing war permitted by the Constitution. Instead, it has the effect of\nestablishing a background principle against which Congress legislates. Section\n8(a)(1) means, then, that it cannot be \xe2\x80\x9c inferred\xe2\x80\x9d \xe2\x80\x94 to quote the language of the\nprovision \xe2\x80\x94 that Congress has authorized the continuation of conflicts from the\nmere fact that it has enacted an appropriation statute (unless the statute references\nthe WPR). Nonetheless, if the text and legislative history of the appropriation\nstatute make clear that it was Congress\xe2\x80\x99s clear intent to authorize continued oper\xc2\xad\nations, that intent is controlling, even if the statute does not reference the WPR.\nSuch an appropriation statute is an implied partial repeal of section 8(a)(1) (or\na supersession of section 8(a)(1)). For reasons already discussed, Pub. L. No. 10631 is such a statute.43\nFinally, it is worth observing that, in this case, the underlying purpose of the\nW PR\xe2\x80\x99s \xe2\x80\x9c clock\xe2\x80\x9d was fully satisfied. That clock functions to ensure that, where\nthe President commits U.S. troops to hostilities without first obtaining congres\xc2\xad\n43 For all the reasons discussed in this opinion, the maxim discussed above-that the law disfavors implied repeals,\nsee supra note 22 \xe2\x80\x94 does not apply. This is not a case, for example, in which a Member of Congress would have\nhad to \xe2\x80\x9c scrutiniz[e] in detail the [Appropnation] Committee proceedings\xe2\x80\x9d to become aware of the discrepancy\nbetween section 8(a)(1) and Pub. L. No 106-31. Tennessee Valley Authonty, 437 U S at 189 n.35. Indeed, because\nPub L No 106-31 was among the most prominent pieces o f legislation pending before the 106th Congress, and\nbecause both the Administration and individual M embers o f Congress strongly and visibly underscored the signifi\xc2\xad\ncance o f the legislation, \xe2\x80\x9c Congress as a whole w as aware o f \xe2\x80\x99 the basic terms of Pub. L No 106-31 Id at 192\n\n364\n\n\x0cAuthorization fo r Continuing Hostilities in Kosovo\n\nsional authorization, Congress has the opportunity to consider the merits of the\nPresident\xe2\x80\x99s actions and to decide whether those hostilities may continue. Here,\nthe President ordered a series of air strikes in the Federal Republic of Yugoslavia\n\xe2\x80\x9c to demonstrate the seriousness of NATO\xe2\x80\x99s purpose so that the Serbian leaders\nunderstand the imperative of reversing course; to deter an even bloodier offensive\nagainst innocent civilians in Kosovo; and, if necessary, to seriously damage the\nSerbian military\xe2\x80\x99s capacity to harm the people of Kosovo.\xe2\x80\x9d Letter for the Speaker\nfrom the President, 1 Pub. Papers of William J. Clinton at 959. Congress then\nhad the opportunity to deliberate on the wisdom of the President\xe2\x80\x99s actions, which\nit did, considering several resolutions relating to the military efforts in Kosovo.\nAfter all of those deliberations, Congress decided to use one of its most important\nconstitutional powers over war and peace \xe2\x80\x94 its appropriation power-specifically\nto fund the ongoing military effort. By doing so, it authorized the President to\ncontinue military activities in the region.\nConclusion\n\nPub. L. No. 106-31 constituted Congressional authorization for continuing\nbombing efforts in Kosovo even after the running of the 60 day clock established\nby section 5(b) of the WPR. Interpreted in light of constitutional concerns, section\n8(a)(1) of the WPR does not lead to an alternative result; properly read, section\n8(a)(1) simply has the effect of establishing a background principle against which\nsubsequent Congresses legislate when they enact appropriation statutes. Section\n8(a)(1) creates procedural requirements that subsequent Congresses must follow\nto authorize hostilities. If a subsequent Congress, however, chooses in a particular\ninstance to enact legislation that either expressly or by clear implication authorizes\nhostilities, it may decide not to follow the WPR\xe2\x80\x99s procedural requirements. In\nthis case, read in light of the background principle established by section 8(a)(1),\nthe text and legislative history of Pub. L. No. 106-31 make clear that Congress\nintended to authorize continuing hostilities in the Federal Republic of Yugoslavia.\nRANDOLPH D. MOSS\nAssistant Attorney General\nOffice o f Legal Counsel\n\n365\n\n\x0c'