As regular readers know, I’m a big fan of Josh Chafetz’s new book Congress’s Constitution: Legislative Authority and the Separation of Powers. I’ve talked about it at numerous conferences and reviewed it for the Michigan Law Review (draft review here). Congress’s Constitution focuses on six powers Congress has to compete with the other branches in our separation-of-powers framework and to help oversee the modern administrative state. In my review I put together a table that summarizes these powers:
One of Congress’s core hard powers is the power of the purse. An important question with respect to this power is the extent to which Congress can cut funding to stop the President from pursuing a particular policy agenda. Zach Price has a fascinating new article entitled Funding Restrictions and Separation of Powers, which tackles this question and is coming out in the Vanderbilt Law Review next year. Here’s a summary of the paper from the SSRN abstract:
Congress’s “power of the purse”—its authority to deny access to public funds—is one of its most essential constitutional authorities. A crucial check on executive over-reaching, it may provide authority to stop a President in his tracks. Yet Congress and the executive branch have developed widely divergent views on the scope of this authority. During the Obama Administration, sharp conflicts over this issue arose in areas of acute policy conflict, including climate change, prisoner transfers, proposed closure of detention facilities at the Guantanamo Naval Base, and federal marijuana enforcement. Many planned initiatives of the Trump Administration—from immigration enforcement to renegotiation of trade deals to relocation of U.S. forces overseas or military operations against Islamic terrorists or other foreign adversaries—could present analogous questions. Despite the issue’s contemporary salience, however, existing scholarship provides no satisfactory understanding of Congress’s power to control the other two branches through appropriations constraints.
This paper offers a systematic account of funding constraints as a separation-of-powers problem. Employing a methodology focused on text, structure, original intent, and the broad contours of historical practice, the paper argues that properly analyzing the problem requires disaggregating executive powers. Congress may not control some executive authorities, such as the veto, pardon, and appointment powers, through restricted or conditional appropriations. These powers are “resource-independent” because the President may exercise them personally and allowing Congress to control or materially influence their exercise would elide separation-of powers distinctions essential to the constitutional structure. In contrast, certain other executive powers, most importantly war powers and law enforcement, are “resource-dependent”—they exist only insofar as Congress provides resources for their exercise. As to such powers, Congress properly holds near-plenary authority to restrict or condition use of available resources.
Hard cases arise in two areas: selective support of resource-independent powers and funding constraints on conduct of diplomacy. In these areas, an anti-manipulation principle, modeled loosely on analogous federalism cases, provides the appropriate framework for balancing congressional and executive authority: conditions should be invalid only in narrow circumstances when the condition would unduly manipulate judgments that are properly the President’s alone.
Under this framework, the separation of powers shields Presidents from congressional control with respect to powers that exist principally to provide a check on Congress. At the same time, the framework preserves a vital congressional check on the most normatively important executive powers—the authority, through law enforcement and warfare, to kill, maim, deport, and imprison in our name.
This is such a well-executed article on a vitally important topic, interacting effectively with the existing literature while advancing a novel position on how to balance Article I and Article II powers. You can read the current draft of the article here.
This post is part of the Administrative Law Bridge Series, which highlights terrific scholarship in administrative law and regulation to help bridge the gap between theory and practice in the regulatory state. The Series is further explained here, and all posts in the Series can be found here.