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There is talk of Congress passing legislation to block funding for a military strike on North Korea.

My question is, what happens if the president orders an attack assuming it is within his authority? (Edit: I don't really intend this to be specific to an attack; if a defensive move is significantly different then please explain the difference.)

Given that he's still commander-in-chief, would the military be obligated to work unpaid (or quit)?

Or would they be allowed to just ignore his order? Or would either Congress or the president's act be unconstitutional? Is there any precedent for something similar?

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  • Only Congress can "declare war". Aug 10 '17 at 12:51
  • @MartinSchröder: How is that relevant? After all, it's well established that the President can carry out military strikes without a declaration of war. Aug 10 '17 at 15:44
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    In practice, I suspect almost any significant action would require purchasing supplies or services from outside the military, so that would effectively be blocked. But an interesting question is whether the military would be permitted to make use of supplies that had already been purchased. Likewise, may a servicemember legally quit the service if not being paid, or is that punishable as desertion or some similar crime? Aug 10 '17 at 15:48
  • Sort of hypothesizing an answer to my question here, but given that there is such a thing as a draft (i.e. mandatory military duty, which seems to imply not necessarily paid) it sounds like he might be within his authority to expect unpaid work and punish lack thereof? Quite a stretch but I can't think of a better example.
    – user541686
    Aug 10 '17 at 21:04
  • @Mehrdad: The draft does not currently exist in the US, and according to sss.gov/About/Sequence-of-Events, it would require Congressional action to re-institute it. (There does currently exist a requirement to register with the Selective Service so that draftees could be identified if the draft were instituted, but that is not the same thing.) Anyway, in past wars, drafted soldiers have always been paid according to the standard military pay scales; I don't know whether it's clear if the government could compel unpaid military service. Aug 10 '17 at 21:25
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There is no way to actually know what would happen (primarily because we cannot know whether someone will actually sue), and a law might be broken with impunity (the violation could be ignored). We can at least say (somewhat) what the legal situation is, esp. what would constitute a violation of the law. To get to the bottom line, if there is any legal recourse, an aggrieved party would have to sue POTUS, and win the suit (compelling the president to do something different); or, the president could be impeached.

The War Powers Resolution of 1973, statutorily encoded in ch. 33 of Title 50 limits the president's authority to engage in military action. First, Congress must be notified within 48 hours of the action, second, armed forces cannot remain more than 60 days (plus 30 days for withdrawal) without a declaration of war, or congressional authorization (such as took place in 2001, and currently exists). In one instance, Clinton continued bombing in Kosovo two weeks beyond the 60 day limit, but the administration maintained that because Congress approved funding for the operation, they had implicitly approved the operation. There was a lawsuit by Congress, but the court ruled that the complainants did not have standing. The court also found that

Congress certainly could have passed a law forbidding the use of U.S. forces in the Yugoslav campaign

and indeed there was such a measure, but it was defeated. The opinion continues:

Congress always retains appropriations authority and could have cut off funds for the American role in the conflict

and again, that was attempted, but failed. The court found that

Congress has a broad range of legislative authority it can use to stop a President's war making, see generally John C. Yoo, The Continuation of Politics by Other Means: The Original Understanding of War Powers, 84 CAL. L. REV. 167 (1996)

so if suitable veto-proof legislation is passed, then a military action could be stopped (by specifically prohibiting use of US funds for military action).

Or, at least it seems that way. 31 USC 1341 forbids an officer of the government from making or authorizing expenditures or obligations unless authorized by law. Consequently, when Congress fails to pass a budget, government operations must cease. This is related to Art. 1 Sect 9 Cl. 7 of the Constitution, which says

No money shall be drawn from the treasury, but in consequence of appropriations made by law

The aforementioned statute does not allow an officer to create an obligation: it does not prohibit an officer from doing a thing, which would ordinarily imply an expenditure or obligation. Notice that while previous federal shutdowns did result in unpaid furloughs to civilian workers, it did not completely close down the military. The military (accountants) explains

In case of a potential government shutdown, the Department of Defense has no legal authority to pay any personnel - military or civilian - for the days during which the government is shut down... Military members cannot be paid for duty performed after the expiration of the current CRA on September 30th. Once a CRA or an appropriations act is signed into law, normal disbursement of military pay will resume.

(Congress could of course authorize back pay when it's all sorted out, and they did). If Congress were to specifically prohibit any expenditure of US funds for action against North Korea, that might simply mean that soldiers would be ordered to work without pay.

It is unquestionably within the power of the president to order soldiers into combat. I don't believe that there has been a case pertaining to the power of the president to compel soldiers to fight if they are not paid, but it is pretty much unimaginable that the courts would hold that the president lacks authority to order soldiers to work without pay. Also, you can't just quit the military: it's not at-will employment. Refusing a lawful order is a crime under UCMJ (which is written by the commander-in-chief), and nothing makes it unlawful to give an order to solder if they are not being paid.

All that said, if there is implemented veto-proof opposition to military action against North Korea, there is almost certainly the number of votes needed to impeach. An impeachment is not subject to any judicial review whatsoever, so a president who went against such a strongly-supported no-funding law would likely also get the required 2/3 vote to remove.

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  • +1, nice answer. Question though: what does it mean to "break a law with impunity"?
    – user541686
    Aug 10 '17 at 23:52
  • I mean that the words of the statue can say one thing, but there is no law requiring breach of a statue to be litigated. Congress might just decide to live with the insult.
    – user6726
    Aug 10 '17 at 23:56
  • Oh I see. I guess my question regarding would be whether someone could be prosecuted/convicted/punished, rather than whether they will be. So in your answer, while it has a lot of information, I'm not exactly sure what the final situation is. Like I understand you say the president can make the order, but then what? If the military obeys it unpaid, is that punishable? Or If they refuse, is that punishable? Or if the president forces unpaid work, is that punishable under another statute independently of his military authority? etc.
    – user541686
    Aug 11 '17 at 0:09
  • This is a great answer. If any of these unthinkable scenarios were to occur, I can only imagine it would be under this administration.
    – A.fm.
    Aug 11 '17 at 1:26
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    FYI, the UCMJ is written by Congress, not the President. Congress, not the President, has the power to make rules for the governance of the armed forces.
    – cpast
    Aug 11 '17 at 1:37

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