Article I, Section 8, Clause 12:

[The Congress shall have Power . . . ] To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years; . . .

Prompted by the fear of standing armies to which Justice Joseph Story alluded, the Framers inserted the limitation that “no appropriation of money to that use shall be for a longer term than two years.” In 1904, the question arose whether this provision would be violated if the government contracted to pay a royalty for use of a patent in constructing guns and other equipment where the payments are likely to continue for more than two years. Solicitor-General Henry Hoyt ruled that such a contract would be lawful; that the appropriations limited by the Constitution “are those only which are to raise and support armies in the strict sense of the word ‘support,’ and that the inhibition of that clause does not extend to appropriations for the various means which an army may use in military operations, or which are deemed necessary for the common defense. . . .” 1 Relying on this earlier opinion, Attorney General Thomas Clark ruled in 1948 that there was “no legal objection to a request to the Congress to appropriate funds to the Air Force for the procurement of aircraft and aeronautical equipment to remain available until expended.” 2

Footnotes

1

25 Ops. Atty. Gen. 105, 108 (1904).

2

40 Ops. Atty. Gen. 555 (1948).