Under the Constitution, of the three branches of government, the legislative, the executive, and the judicial, the legislative is the most powerful.
It is the only branch with the authority to declare war, levy taxes, remove people from elected or appointed office, and, importantly, wield the “power of the purse.”
Congress can dictate how money is raised and spent, and if lawmakers unite, they can act without the acquiescence of the president by overriding any presidential veto.
But now, in President Donald Trump’s second term, thanks partly to Supreme Court decisions that have granted him immunity for criminal prosecution for official acts and swept away lower court injunctions, he has amassed unprecedented presidential power. He can ignore the will of Congress or dictate terms that members of the slim Republican majority must accept or risk being “primaried” and losing their seat in the next election.
“It’s easier to ask forgiveness than to get permission,” the old saying goes, but Trump and his defense secretary, Pete Hegseth, often seek neither, running roughshod over long-standing norms, and, in some cases, boldly flouting the will of Congress.
In response, the Republican-led Congress has been largely supine, taking only the most tepid steps to exert its constitutional role to set policy.
There’s no greater example than this year’s debate surrounding the National Defense Authorization Act, which sets national defense policy and proscribes exactly what the Pentagon can and cannot do with the $880 billion budget appropriated and authorized by Congress.
National security is the one matter that generally enjoys wide bipartisan support on Capitol Hill, and this year’s NDAA, as it’s known, was no exception. It sailed through both Armed Services Committees this month, 26-1 in the Senate and 55-2 in the House.
But the House Armed Services Committee, which marked up its version of the bill in public, provided a window into the stark divide between those who want to wrest control back from the Pentagon and those who would just as soon give the commander in chief a blank check.
Exhibit A is the debate over the $400 million allocated to convert the “free” 17-year-old used 747 plane, which Trump pressured Qatar to gift him, into a temporary Air Force One. This, at best, creates a perception of impropriety and, at worst, is a flagrant violation of the Constitution’s emoluments clause.
“The constitutional prohibition in Article I, Section 9, Clause 8, bans any official from accepting gifts or emoluments from another government without the approval of Congress. So, Congress hasn’t even come close to approving this gift,” said Rep. Joe Courtney (D-CT), who introduced an amendment that would block taxpayer funds from being used to retrofit the plane and block Trump from taking it with him when he leaves office.
“We’re being asked by the administration to overlook a unilateral decision without Congress’s approval, with no appropriation that has been lawfully given to the administration, to approve a third Air Force One aircraft,” Courtney said.
His amendment failed 27-30.
And so it went with almost all the amendments proposed by Democrats to force the Pentagon to stick to policies mandated by law in last year’s NDAA.
An amendment proposed by Rep. Sara Jacobs (D-CA) would bar the use of funds designated for military barracks and child development centers for operations at the southern border.
The measure was defeated after Chairman Mike Rogers (R-AL) argued that the amendment seeks to outlaw something that isn’t happening.
“Facilities sustainment money authorized and appropriated for barracks and childcare facilities is not being spent on border security, and it cannot be reprogrammed for those purposes without congressional approval,” he said.
Rogers was right on the law, but Democrats argued that he turned a blind eye to how the Pentagon under Trump consistently spends money without approval.
“Unfortunately, we’ve seen reports that the Army shifted $1 billion, that’s right, $1 billion, meant for barracks to instead fund its surge of troops to the southern border,” Jacobs said. “And even if this money were replenished, it should never have been taken … in the first place.”
Another amendment, sponsored by Rep. Mikie Sherrill (D-NJ), would reinforce the 1878 Posse Comitatus Act, which prohibits the military from engaging in law enforcement while under federal command except in rare circumstances.
“The Posse Comitatus Act exists for a reason. To protect Americans and our servicemembers from having the military act as a police force,” Sherrill said.
The committee rejected her amendment and instead adopted an amendment put forth by Rep. Derrick Van Orden (R-WI), a former Navy SEAL, that expands the law to allow for the military to support law enforcement agencies battling terrorists and drug cartels.
“What we want to do is make sure that our military can work in a whole-of-government approach to conduct counterterrorism operations and prevent transnational crime,” Van Orden said. “It will codify the authority under Title 10, make it permanent, so that our folks know that we will continuously have their back.”
“The Posse Comitatus Act rightly limits the military’s role in domestic law enforcement to prevent misuse and abuse of the military against our own people. I believe that we should be strengthening that law,” Jacobs said. “But this amendment blurs that line even more, even if you don’t mean it to. This amendment is vague and ripe for abuse.”
It passed easily by voice vote.
An amendment from Rep. Gabriel Vasquez (D-NM) that would bar the Pentagon from spending defense funds on new sections of border wall without a feasibility study was denounced by Rogers as “another political stunt intended to undermine President Trump and his successful border policies.”
Democrats argued, given that Trump’s “big, beautiful bill” includes a whopping $170 billion for border security, there’s no reason the Department of Homeland Security can’t fund any necessary additional border wall without the Pentagon’s help.
“They’re grabbing a lot of Department of Defense assets to use in that effort and undermining our ability to meet our national security needs,” said Rep. Adam Smith (D-WA), a House Armed Services Committee ranking member and its former chairman when Democrats held the House majority.
Smith also proposed an amendment that would bar funding for any future effort by the United States to invade Canada, Greenland, or Panama.
It failed on a straight party-line vote, as Republicans wanted to keep Trump’s options open.
Still, Democrats didn’t get stuffed on every amendment.
They were particularly miffed that Hegseth used a ruse to violate the spirit of a law that stripped nine Army bases of their Confederate namesakes and barred the naming of any bases for Confederate officers.
Reps. Don Bacon (R-NE) and Derek Schmidt (R-KS) provided the key votes on an amendment that would restore the names selected by a bipartisan naming commission during former President Joe Biden’s administration.
“Unfortunately, Secretary Hegseth and the Trump administration decided to troll the American public and discard the hard work of this committee and commission by reverting to base names. And they used the same ploy that the commission rejected, finding new servicemembers who shared the last names of these Confederate traitors,” said Rep. Marilyn Strickland (D-WA), the amendment’s sponsor.
She added, “These servicemembers are heroes in their own right, and we don’t deny that, like Private Fitz Lee, a Buffalo soldier who was awarded the Medal of Honor. Yet Secretary Hegseth saw them as nothing more than convenient names.”
The Senate version of the NDAA contains a similar provision that applies to military bases in Virginia and requires a return to the new names while specifically barring Hegseth from changing them again.
It also expresses displeasure with the way Hegseth has fired senior officers with no explanation other than vague rumors that the people targeted, including the black chairman of the Joint Chiefs, were “too woke.”
The personnel actions have disproportionally affected women, including the recent announcement that the superintendent at the U.S. Naval Academy, a female three-star admiral, was being replaced by a Marine general and moved to a desk job at the Pentagon.
No explanation was given despite a law stipulating that the superintendent’s term shall be “no less than three years,” and requiring a “statement of the reasons why” be provided to Congress.
The Senate bill also requires five days’ notice to Congress if a military judge advocate general is being removed, along with an explanation and a formal reason for the removal of any member of the Joint Chiefs of Staff within five days. It also requires notification to Congress when military officers are removed from selection board reports and lists for reasons other than misconduct.
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The two versions of the annual defense policy bill will have to be reconciled in a conference committee before being sent to Trump for his signature.
In 2020, Trump vetoed the measure because of the Army base renamings. However, because of the “must-pass” nature of the legislation, Congress overrode his veto.
