//  5/13/19  //  Commentary

Cross-posted at Dorf on Law | by Eric J. Segall

The United States Constitution places the initial power to fund the entire federal government squarely in the hands of the United States House of Representatives. Article I provides that “All Bills for raising Revenue shall originate in the House of Representatives….” Moreover, "no Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law.” The Founding Fathers intentionally placed this spending authority in the “People’s House” because  it, as opposed to the Senate, “was more immediately the representatives of the people, and it was a maxim that the people ought to hold the purse-strings.” Although the Senate may add amendments to bills suggesting government spending, the House has to agree before such a bill may become law.

Today, the Democrats, and the people they represent, hold these all-important purse strings, and they should use them to fight the on-going rule of law violations and norm breaking behavior being committed by the Republican controlled Senate and President Donald Trump. For example, the House wants to and should have the right to see the entire Mueller Report, but it is being stonewalled by broad and “bogus” executive privilege objections and other political machinations by the Trump Administration (legitimately privileged materials could be reviewed by members of the House outside the public eye). No doubt the House will seek judicial relief, but that could take months or longer, and given the five Republicans on the Supreme Court, the outcome will be very much in doubt. 

An alternative plan would be for House Democrats to refuse to pass any new appropriation bills for the non-national security, non-criminal law enforcement divisions of the Department of Justice until the Mueller Report is handed over to them, and the relevant witnesses in the report, such as the President’s former attorney, agree to testify about the report. Under Trump’s Department of Justice, the Civil Rights Division and the Federal Programs Branch (where I once worked for President George H.W. Bush) are doing mostly partisan work anyway such as defending voter suppression in Texas and seeking to invalidate the entire Affordable Care Act. There is no reason Democrats should agree to pay for such legal actions given the way they are being treated by the Administration.

Senate Republicans essentially stole a Supreme Court seat in 2016 when the very day that Justice Scalia died, the Senate Majority Leader announced that President Obama’s nominee would not even get a hearing in the Senate, even though Obama had almost a year left in his Presidency. This was serious constitutional hardball played by the GOP Senate. This breaking of judicial nomination norms had and will have a drastic effect on the entire federal judiciary. In return, the House Democrats could refuse to pass appropriations for new judges (separate from salary which must be paid under Article III) until some compromise is reached where the nomination process becomes more bi-partisan (such as returning to the old blue-slip process where home state senators had an effective veto over the nomination of judges from their state), or an agreement to appoint at least a few Democratic judges to the lower courts.

Despite a federal statute authorizing the House of Representatives to subpoena Trump’s tax returns, he has refused to provide them. This issue is also likely heading to the courts, but the House could also use its appropriations power to require Trump to turn over his returns or Executive Branch discretionary expenditures could be slashed by failing to reauthorize them. Although the House cannot use its power of the purse to encroach on the President’s core constitutional authority, nor can it unilaterally slash existing funds without Senate cooperation, there are still many legal ways to pressure the Administration to cooperate in a more bi-partisan fashion by threatening not to agree to fund programs important to the President.

Across a broad range of policy areas, such as family planning services, climate change initiatives, and infrastructure renewal, House Democrats have a mighty power at their disposal, and they should use it, just as the Founding Fathers intended. James Madison said in Federalist No. 58 that the “power over the purse may, in fact, be regarded as the most complete and effectual weapon, with which any constitution can arm the immediate representatives of the people, for obtaining a redress of every grievance, and for carrying into effect every just and salutary measure.”

Some may argue that if House Democrats use the power of the purse this way today, then the Republicans will do the same when the political sides are reversed. The reality is that, given the norm breaking by the GOP over last few years across all areas of the federal government, they likely would use that power whether the Democrats do so or not. Moreover, Trump’s tax returns, the full Mueller report, and the veracity of the witnesses discussed in that report, are highly relevant to the next election, and this specific kind of hardball can be defended on those terms, The GOP’s theft of Obama’s seat justifies a retaliatory move by the Democrats regarding the courts, and the Administration’s failure to compromise on many important policy questions is a legitimate trigger for fiscal negotiations by the House.

For many complex reasons, the House of Representatives has not exercised its power of the purse in a serious manner in a long time (though the GOP-controlled House did limit some of President’s Obama’s authority through this tactic). This abstinence has allowed the Members to shirk many important oversight responsibilities. Even for reasons separate from our current Trumpian-created crisis, our country would be much better off with power flowing away from the Executive Branch and back to the Congress generally and the House specifically. But given our current President and Senate Majority Leader, and their thumbing their noses at both the rule of law and longstanding governing norms, it is time for House Democrats to use all the constitutional powers at their disposal to return to some sort of equilibrium between our two major political parties, before it is truly too late.

 


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