//  4/5/17  //  Commentary

A week and a half ago, the American Health Care Act’s failure gave President Trump an important lesson in the separation of powers.  It turns out that important aspects of his agenda depend on cooperation by another coequal branch of government.  Who knew checks and balances could be so complicated?

But another much bigger fight is brewing.  To keep the government’s lights on past the end of April, Congress will need to pass new appropriations legislation.  And before October (when the next fiscal year starts), it will need to decide whether to enact Trump’s proposed budget, which would slash money for research and regulation while increasing funds for the military and immigration enforcement.

These fights will be ugly, but they implicate the most important practical means of constraining this president (or any other)—Congress’s power over appropriations.

Why is the appropriations power so important?  This congressional authority, often referred to as the “power of the purse,” is vital today precisely because it gives Congress an ongoing source of leverage over Presidents.  For reasons good and bad, Congress has spent most of the past century delegating vast lawmaking authority to the executive branch.  In foreign affairs, presidents have claimed still greater power, including the authority to use military force on their own initiative.  But the government can’t do anything without money—and presidents can’t get money without Congress.

Under the Constitution’s Appropriations Clause, “[n]o Money shall be drawn from the Treasury but in Consequence of Appropriations made by Law.”  That means Congress must approve any federal spending by statute.  A key federal statute backs up this congressional power by generally making it a crime for federal officials to spend or even obligate government funds without an adequate supporting appropriation.

Congress also generally writes appropriations statutes so that they expire every year.  That means presidents must come back year after year, hat in hand, to request new money for their priorities.  It also means Congress gets a chance every year to override presidential policies it dislikes.  You want that fancy new wall, Mr. Trump?  Well, you may need to make concessions to get it.

President Obama learned the hard way how significant this congressional authority is.  Through appropriations restrictions, Congress interfered with Affordable Care Act subsidies, nixed key White House positions, and stymied the planned end of Guantanamo detentions.  Congress hoped to get even more.  Republican leaders repeatedly threatened to “shut down” the government by failing to enact appropriations if they didn’t get their way—and in fact they did let appropriations lapse for some sixteen days in October 2013.

Trump, I suspect, will soon get his own tutorial in the power of the purse.  Liberals, of course, can’t hope for too much from a Republican Congress.  But the appropriations process might at least prevent the administration from abandoning policies that have previously been matters of political consensus.  Indeed, even leading Republicans in Congress have pronounced some of Trump’s budget proposals “dead on arrival.”

There is one problem, though.  Over decades, presidents have repeatedly asserted in signing statements and legal opinions that they may disregard funding constraints that interfere with constitutional executive authorities.  One way or another, President Obama in fact claimed authority to work around all the appropriations limits I mentioned earlier (see here, here, and here).  Importantly, however, he did not act on his broadest assertions and in consequence Congress cannot be said to have acquiesced in those claims.

Congress’s authority to check Trump could depend in significant respects on questions about the proper extent of this asserted executive prerogative over spending—questions that have received insufficient attention.  To be concrete: Could Congress halt Trump’s promised immigration crackdown by imposing enforcement priorities on the executive branch?  Could it reassure nervous NATO allies by mandating U.S. troop levels in Germany or the Baltic states?  Could it condition funding for immigration enforcement on Trump’s not pardoning Michael Flynn or other political allies suspected of criminal wrongdoing?  Or would such mandates interfere with the President’s constitutional authorities, respectively, to execute federal law, command the armed forces, and pardon federal offenders?

I have written a draft article that addresses these questions.  I intend to post the article online soon and will blog further about it on Take Care.  (To preview my analysis, the answers to my first three questions are yes, yes, and no.)

For now, as we head into a month of headlines about frustrating political battles over budgets, I will just highlight the vital structural principle underlying all this bickering.

The appropriations process is ugly, and Republicans’ hardball negotiations with President Obama highlighted its potential for abuse.  If legislating is like sausage-making and best not watched too closely (as Bismarck supposedly said), then one might say American appropriations laws are sausage-making at its finest (or worst).  They are where horses get traded, oxes get gored, and pork gets divided up. 

But annual appropriations are also where policy constraints get imposed on the most powerful office in the world.  These days, does anyone doubt how important that is?

The Affordable Care Act Does Not Have An Inseverability Clause

11/5/20  //  In-Depth Analysis

Contrary to challengers’ claim, Congress nowhere directed the Supreme Court to strike down the entire ACA if the individual mandate is invalidated. Congress knows how to write an inseverability directive, and didn’t do it here. That, combined with Congress’s clear actions leaving the ACA intact and the settled, strong presumption in favor of severability, make this an easy case for a Court that is proud of its textualism.

Abbe R. Gluck

Yale Law School

The Real Problem with Seila

8/24/20  //  In-Depth Analysis

Seila Law LLC v. Consumer Financial Protection Bureau that tenure protection for the Director of the Consumer Financial Protection Bureau is unconstitutional. The decision’s reasoning may be more important—and worrisome—than the holding itself.

Zachary Price

U.C. Hastings College of the Law

Roberts’ Rules: How the Chief Justice Could Rein in Police Abuse of Power 

8/19/20  //  In-Depth Analysis

A theme of Chief Justice John Roberts’ opinions this past term is that courts should not employ open-ended balancing tests to protect fundamental constitutional rights. Yet there is one area of the Supreme Court’s constitutional jurisprudence that is rife with such amorphous balancing tests: policing. It is long past time for the Court to revisit this area of law.