Recently published, in the California Law Review, Daniel Martin (Berkeley JD '17): The Duty to Appropriate: Why Congress Has a Constitutional Obligation to Fund Criminal Law Enforcement (106 Cal. L. Rev. 511 (2018)). Here is the abstract:
In the Federalist Papers, James Madison famously called the power of the purse “the most complete and effectual weapon” of the representatives of the people, as part of his defense of the fledgling Constitution. In practical terms, Madison’s claim has proven true time and time again—with Congress using appropriations bills to assert extensive control over the modern administrative state. In legal terms, however, the power of the purse has received remarkably short shrift in both scholarship and case law, especially regarding the relationship between congressional appropriations and the separation of powers doctrine. Specifically, there is no Supreme Court opinion or body of research that systematically defines how appropriations may influence the President’s independent constitutional functions.
In response to this gap, this Note examines the relationship between appropriations and separation of powers, focusing on criminal law enforcement as a model issue. First, this Note argues that the Appropriations Clause confines spending decisions to Congress but does not give Congress plenary control over spending, requiring Congress to appropriate funds to the Executive and Judiciary for their independent constitutional functions. Second, this Note argues that criminal prosecutions should be considered an exclusive executive function, giving Congress a constitutional duty to fund criminal law enforcement. Congress may breach that duty by refusing to provide funding or by placing impermissible conditions on the use of such funds, both of which would force the President to either violate the Appropriations Clause or the Take Care Clause. Because Congress’s action would result in this unconstitutional outcome, this Note ultimately concludes that Congress has a constitutional obligation to provide funding for criminal law enforcement.
An interesting issue, well presented. But I disagree with the proposition that the President would violate the take care clause if the President is unable to fully execute the law because Congress fails to provide funds for law enforcement. The clause does not require the President to guarantee full enforcement of the law. The clause requires the President to faithfully execute the law to the extent of the President's constitutional powers. With respect to expenditure, the President's constitutional power is (only) to spend the money Congress makes available. The President does not violate the clause if Congress doesn't make money available. The alternative view would suggest that, notwithstanding the appropriations clause, the President can (indeed, must?) independently obtain as much money as needed to fully enforce the law. It has the further implication that the President can issue decrees, use the military, etc., without Congress' approval as needed to fully enforce the law. That would convert the take care clause from a presidential duty to a vast source of presidential power.
Posted at 6:29 AM