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Funding Restrictions and Separation of Powers Zachary S Vanderbilt Law Review Volume 71 | Issue 2 Article 1 2018 Funding Restrictions and Separation of Powers Zachary S. Price Follow this and additional works at: https://scholarship.law.vanderbilt.edu/vlr Part of the Constitutional Law Commons Recommended Citation Zachary S. Price, Funding Restrictions and Separation of Powers, 71 Vanderbilt Law Review 357 (2019) Available at: https://scholarship.law.vanderbilt.edu/vlr/vol71/iss2/1 This Article is brought to you for free and open access by Scholarship@Vanderbilt Law. It has been accepted for inclusion in Vanderbilt Law Review by an authorized editor of Scholarship@Vanderbilt Law. For more information, please contact [email protected]. VANDERBILT LAW REVIEW VOLUME 71 MARCH 2018 NUMBER 2 ARTICLES Funding Restrictions and Separation of Powers Zachary S. Price* 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 overreaching, it may provide authority to stop presidents in their tracks. Yet Congress and the executive branch have * Associate Professor, University of California Hastings College of the Law; J.D., Harvard Law School; A.B., Stanford University. Earlier versions of this article were presented at the 2017 American Constitution Society Junior Scholars Public Law Workshop, the 2017 American Association of Law Schools New Voices in Legislation Workshop, the 2017 Southeastern Law Schools Association New Scholars Workshop, and the 2017 Loyola University Chicago School of Law Annual Constitutional Law Colloquium. The author is grateful to participants in all these workshops for helpful comments and feedback, especially commentators Mark Graber and Alan Morrison at the ACS workshop, Rebecca Kysar at the New Voices workshop, and Andy Wright at the SEALS New Scholars Workshop. For other helpful comments and conversations regarding earlier drafts, the author thanks Nick Bagley, Will Baude, Sam Bray, Scott Dodson, Jared Ellias, Jean Galbraith. Evan Lee, Marty Lederman, Michael McConnell, David Pozen, Jeff Powell, Richard Primus, David Rubenstein, Geoff Sigalet, Reuel Schiller, Jodi Short, Mila Sohoni, Lance Sorenson, Mark Storslee, Mark Tushnet, Charles Tyler, and participants in a 2017 SEALS Discussion Group on Administrative Law and Criminal Justice. Kaitlin Robinson, Mitchell VanLandingham, and Raena Ferrer Calubaquib provided excellent research assistance, and the UC Hastings librarians, especially Chuck Marcus and Erin Murray, offered invaluable help locating materials and identifying key sources. The author also thanks UC Hastings for generous research support, and the Vanderbilt Lau Review editors for helpful comments and editing. Although the author served as an attorney-adviser in the U.S. Department of Justice's Office of Legal Counsel between 2009 and 2012, the views expressed here are solely the author's and do not necessarily reflect the views of the Office, the Department of Justice, or the United States government. 357 358 VANDERBILT LAW REVIEW [Vol. 71:2:357 developed widely divergent views on the scope of this authority. During the ObamaAdministration,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 military operations against Islamic terrorists or other foreign adversaries-could present analogous questions. Despite the issue's contemporary salience, however, existing scholarshipprovides no satisfactory understandingof Congress'spower to control the other two branches through appropriationsconstraints. This Article offers a systematic account of funding constraintsas a separation-of-powersproblem. Employing a methodology focused on text, structure, original intent, and the broad contours of historical practice, the Article 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 because 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-plenaryauthority 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 antimanipulation 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 manipulatejudgments 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 congressionalcheck on the most normatively important executive powers-namely, those that involve bringing the government's coercive and destructive capacities to bear through law enforcement and warfare. 20181 FUNDING RESTRICTIONS 359 INTRODUCTION. ........................................ ...... 360 I. FRAMING THE PROBLEM ................................ 365 A. Congress's Power of the Purse and the Puzzle It Generates ................................... 365 B. The Puzzle's Undertheorization .................. 369 1. Ambiguity at the Founding .................. 370 2. Current High Stakes .................... 373 3. Limitations of Past Scholarship .... ...... 378 II. FRAMING THE SOLUTION: WHY FUNDING IS DISCRETIONARY........................................ 382 III. RESOURCE-INDEPENDENT EXECUTIVE POWERS...... ..... 389 A. Defining the Category...................... 389 B. Direct Restrictions....................... 393 1. Direct Restrictions' Structural Invalidity.... 394 2. Why Explicit Legislation Differs from Informal Bargains ...................... 401 C. Indirect Restrictions ..................... ..... 404 1. Why Indirect Conditions Have Bite............. 406 2. Constraints on White House Personnel....... 407 3. Constraints on Other Executive Branch Personnel ............................. 410 D. The Problem of Article II's Ambiguity ....... ..... 413 IV. RESOURCE-DEPENDENT EXECUTIVE POWERS.............. 417 A. Defining the Category.................... ...... 418 B. CongressionalRepudiation of Presidential Heroism .................................... 420 C. War Powers ............................ ..... 426 1. Text, Structure, and History .. ........... 427 2. Governing Principles and Contemporary Applications ........................ 432 a. Negative Restraints......... ...... 432 b. Affirmative Requirements..... ..... 434 D. Law Enforcement ...................... ...... 437 1. The Structural Case for Appropriations Control ............................... 438 2. Lessons from History ................... 440 3. Governing Principles and Contemporary Applications ....................... 445 a. Negative Restraints ............... 445 b. Affirmative Requirements.... ...... 446 c. Recent Controversies. ............. 448 E. Diplomacy . ............................. ..... 449 360 VANDERBILT LAW REVIEW [Vol. 71:2:357 1. Disaggregating Foreign Affairs Powers....... 450 2. How to Characterize Diplomacy?........ .... 454 3. An Antimanipulation Framework .... ..... 458 CONCLUSION ................................................ 462 INTRODUCTION Congress's "power of the purse"-its authority to deny access to public funds-is one of its most essential constitutional authorities. A central mechanism through which English parliaments clawed liberty from reluctant monarchs, it remains a crucial check on executive overreaching. It may provide power to stop a president in his tracks. And yet, two centuries after the founding, the scope of this congressional power and its relationship with constitutional executive authorities remains both contested and inadequately theorized. The executive branch, in both Republican and Democratic administrations, routinely disregards funding limits that infringe upon asserted executive authorities.' For its part, Congress asserts the opposite view by routinely enacting such appropriations restrictions. During the Obama Administration, the issue arose repeatedly 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.2 President Trump's first signing statement staked out a broad view of his powers,: and many of his administration's planned initiatives-including enhanced immigration and drug enforcement, renegotiation of trade deals, and military operations against Islamic terrorists or other foreign adversaries- could present the issue in acute form. Questions about the power of the purse, indeed, have arisen repeatedly across
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