August 24, 2026

Shutdown Reform’s Constitutional Blind Spot: The Two-Year Clause

By: Mark Nevitt

This article was originally published in Lawfare.

Congress and the president are once again signaling a possible government shutdown as early as this September. In an effort to forestall a shutdown—now and forever—Congress is considering legislation that would automatically fund the government in the event of a lapse in appropriations. In this article, we highlight an overlooked constitutional problem with this legislation: It relies on an automatic funding provision that violates Article I, Section 8, Clause 12, which provides that Congress may “raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years.” Let us explain.

There is a path forward to ending shutdowns, should Congress choose to do so. Federal armies just can’t be part of it.

Congress and the president have failed to fund the government by passing necessary annual legislation with increasing frequency in recent years, leading to employee furloughs, payment lapses for contracts, and market uncertainty. This dysfunction has prompted many on both sides of the aisle in Congress to think about shutdown reform. One possibility, considered at a hearing before the House Committee on Appropriations on July 22, would put an end to shutdowns altogether by automatically funding the government during a funding lapse.

Read the full article in Lawfare.

More from CNAS

View All Reports View All Articles & Multimedia