My colleague Zach Price, who writes about constitutional law, with a specific emphasis on separation of powers and executive power, has written a timely and very important new article called “Funding Conditions and Separation of Powers,” forthcoming in Vanderbilt Law Review. The article tackles a heady issue of law and politics: when are congressional conditions on appropriations binding on the President?
We all understand that Congress has the “power of the purse.” But can Congress use this power to control the exercise of powers reserved to the President? Can Congress, for example, appropriate military funding on the condition that no funding be used to operate or support the base at Guantanamo Bay? Could Congress deny funding to the Department of Justice for any case in which DOJ will argue that same-sex marriage is required by the U.S. Constitution? Could Congress appropriate money for other matters on the condition that the President not pardon anyone convicted of lying to Congress?
Perhaps surprisingly, Congress attempts to extract use conditions like these all the time. Presidents, for the most part, routinely claim that they violate the separation of powers because they infringe on the President’s power to execute the laws and other specific powers reserved to the President. Yet, to date, no one has developed a satisfactory framework for balancing Congress’s power of the purse with the President’s constitutional powers.
Professor Price’s novel solution is to dissociate resource-dependent presidential powers (such as law enforcement) from resource-independent presidential powers (such as the pardon power). Resource-dependent powers necessarily require congressional funding, and thus Congress’s decision to fund them can come with conditions. Resource-independent powers, by contrast, are designed to be exercised without funding from Congress, and thus Congress cannot control their exercise through funding conditions.
This framework helps resolve some of the pressing issues of the day. It suggests that Congress can impose specific funding conditions on military operations, climate-change policy, immigration enforcement, and the like. But Congress cannot impose funding conditions on the President’s power to veto legislation, appoint and remove officers, or grant clemency.