Defense Appropriations Bill is Business as Usual

By Kurt Couchman

Last week the House Committee on Appropriations unveiled the Defense Appropriations Act for Fiscal Year 2017. Steps towards regular order in congressional budget and appropriations are welcome, and several aspects of the bill are worth noting.

FY 2017 started on October 1, 2016, but spending under a continuing resolution—extending prior spending priorities—expires on April 28, 2017. While much of the federal government can make do on continuing resolutions, the Department of Defense needs regular appropriations. The ongoing process of developing and acquiring systems requires updates, as do shifting geopolitics.

On a positive note, the bill avoids the prior House attempt to underfund overseas operations to boost procurement and expand personnel, which would presumably force supplemental appropriations. The American people—especially those in uniform deployed in conflict zones—deserve better than Washington-Monument-syndrome games.

In normal life, priorities are set from highest to lowest. Budget constraints mean some of the lower priorities don’t happen. For families, nice vacations don’t take precedence over paying the mortgage. For the Pentagon, ongoing operations in which lives are at stake are among the highest priorities.

That said, ongoing missions require re-evaluation. Do they achieve strategic objectives? Do they make Americans safer? Are the burdens reasonable for the expected benefits? Can alternatives provide better outcomes at lower costs? Can local actors be more effective, in whole or in part?

Therein lies a major concern with this bill. It doesn’t advance reflection on the propriety of current activities. To be fair, that’s the role of the authorizing committees. The Armed Services committees reauthorize defense programs annually, but the Foreign Affairs committees have failed to do so for a long time, leading to an imbalanced and military-dominated foreign policy.

The Defense Appropriations Act funds activities in Afghanistan, Syria, Iraq, Ukraine, and elsewhere. It imposes limited restraints such as a prohibition on transferring man-portable air defense systems (sections 9013, 9016), and it blocks activities in contravention of the reporting requirements of the War Powers Resolution (sections 8104, 8115, 9019). But the important part of the War Powers Resolution (WPR) isn’t reporting, it’s whether the President is acting “only pursuant to (1) a declaration of war, (2) specific statutory authorization, or (3) a national emergency created by attack upon the United States, its territories or possessions, or its armed forces,” which is section 2(c) of the Act (50 U.S.C. 1541(c)).

The bill has other issues. Section 8123 prohibits the Department of Defense from using any funds “to propose, plan for, or execute a new or additional Base Realignment and Closure (BRAC) round.” DOD and independent defense experts all recognize the need to shed excess property through the BRAC process, but some prefer to waste billions of dollars rather than face tough questions from constituents.

The no-BRAC provision also has a constitutional problem. Congress is free to bar DOD from planning or executing a BRAC round, but not to propose one. Article II, Section 3 of the Constitution specifically empowers the President “to recommend to [Congress’] Consideration such Measures as he shall judge necessary and expedient.” Congress may not muzzle the executive branch’s legislative proposals.

The “Buy America” provisions are similarly problematic (sections 8017, 8026, 8039, 8048, 8106, mitigated by sec. 8061). They require certain materials to be purchased from Americans instead of seeking the best combination of price and quality. Strategic reasons exist for some components, as U.S.-ratified trade treaties recognize.

But some “Buy America” provisions may put the U.S. in violation of our treaty agreements to benefit favored domestic producers. This invites trade retaliation from other countries, which harms American exporters and their employees. Even without retaliation, “protecting” some producers shifts the terms of trade and reallocates resources in subtle ways that harm U.S. exporters and consumers, and that reduce overall prosperity. Most importantly, higher prices from limiting competition deplete funds for higher values like readiness and modernization.

Those aren’t the only special benefits. The Taxpayers Protection Alliance (TPA) counts 406 earmarks totaling $14.5 billion, but that’s compared to President Obama’s FY 2017 budget proposal, released more than a year ago. But “earmark” isn’t the right word. Congress isn’t meant to rubber-stamp the President’s proposals. It’s the other way around. The President has no formal constitutional role in the budget process other than signing or vetoing appropriations acts, and otherwise is tasked with faithfully executing the laws.

The bill certainly contains earmarks, however, including some on TPA’s list. Section 8011 provides special benefits to Pacific Islanders. Section 8013 limits competition for beer and wine wholesalers to provide beverages for sale in commissaries. Section 8018 provides a $140 million subsidy to make sure government arsenals can compete with more-efficient private producers. Section 8021 provides $15 million in subsidies to help Native American contractors compete for Pentagon business. Section 8031 lets DOD give away “relocatable military housing units” to Native Americans in western states. Section 8068 lets the National Guard provide services to a “youth, social, or fraternal nonprofit organization” without compensation.

It funds activities that largely belong in non-defense agencies. The $1.02 billion for congressionally directed medical research programs belongs at the National Institutes of Health. Drug interdiction and counter-drug activities could be run by the Departments of Homeland Security, Justice, and State.

Finally, it prevents reorganizations that could improve efficiency and security. Section 8058 prevents Navy Pacific fleet from being brought under Fleet Forces Command. Section 8108 prohibits any reductions—or preparation for reductions—in the force structure for nuclear delivery vehicles and warheads below the New START Treaty limits, a holdover from the Obama administration’s inclination to disarm.

This defense appropriations act provides needed resources for the U.S. Armed Forces to protect the American people and our allies and to carry out diverse missions throughout the world. Some missions, however, may not have benefits sufficient to justify their costs to U.S. taxpayers or to service members and their families. Rethinking missions, improving efficiency, and reducing commitments to peripheral activities could help free up resources for needed modernization and readiness. As authorization and appropriating legislation is developed for fiscal year 2018, these options should be exercised.

Kurt Couchman is the Vice President of Public Policy at Defense Priorities and served as a Congressional Legislative Director prior to that.

This piece was originally published by The National Review Online on March 8, 2017. Read more HERE