//  5/16/17  //  Commentary

Eleven days ago, President Trump averted a federal government shutdown by signing a massive new spending bill. As the Washington Post reported yesterday, President Trump issued a signing statement suggesting that he could defy restrictions in the law forbidding federal prosecution of state-compliant medical marijuana dispensaries.

Trump’s view is mistaken. Defying this restriction (and any others like it) would be unconstitutional, and any federal official who willfully did so would commit a federal crime.

I have nearly completed an article about Congress’s authority to control executive functions through appropriations. I hope to post the article online soon, but given the Post’s report and the issue’s significance, I thought it would be helpful to quickly share my conclusions.

As I have explained previously on Take Care, Congress’s constitutional authority over appropriations is one of its most important checks on the President. The trouble is that, for some time, Presidents have been chafing at the bit.

Recent Presidents, like Trump, have claimed authority to disregard funding restrictions that they believe limit their constitutional executive authorities. Trump’s signing statement on the new spending bill was chock full of such assertions; his assertion about marijuana was only one.

Are such executive claims valid? Well, yes and no. On the best view of the law, the extent of Congress’s appropriations authority depends on the nature of the executive power at issue.

Some executive authorities are, to use terms from my article, “resource-independent.” Paradigmatic examples are the President’s power to veto legislation, appoint and remove officers, and grant clemency. These are powers the President could exercise personally, even without any specific appropriation beyond his salary. They are also generally powers that the Framers conferred on the President to provide a check on Congress’s own legislative authority.

If Congress could condition federal funding on the President exercising (or not exercising) resource-independent powers in a particular way, then Congress could create a governmental structure different from the one the Constitution prescribes. To take the starkest example, it could create a structure in which Congress, rather than the President, controls the veto—even though the veto exists to provide a check on Congress. Some of our most important checks and balances could thus be eviscerated. That is not how our government is meant to work.

For this reason, funding restrictions that attempt to control resource-independent powers are invalid. (The hard question in this area is whether Congress can deny the President advice and support regarding the exercise of these powers. The answer is generally yes, but with some caveats I won’t go into here. The key point is that Congress can’t use its own powers, including its power of the purse, to dictate directly how certain presidential powers are wielded.)

The fundamental point I want to make today, though, is that certain other presidential powers—most importantly law enforcement and war powers—have an entirely different character. These powers are “resource-dependent.” They cannot be exercised personally by the President, and they were conferred on the Executive to enable presidential execution of Congress’s programs, not to provide an independent, freestanding check on other branches.

This may sound abstract, so let me make it more concrete: As readers of this blog well know, the Constitution obligates the President to “take Care that the Laws be faithfully executed.” It also makes him “Commander in Chief” of the military. But the President is always utterly dependent on congressional appropriations to carry out these responsibilities.

Sure, the President could ride out on horseback, machine gun or handcuffs in hand, to defend the nation and enforce its laws. But such efforts wouldn’t get far. Effective war-making requires weapons and armies. Law enforcement requires police and prosecutors. And those are things only Congress can provide through its power over appropriations.

The plain text of the relevant constitutional provisions hammers this point home. The Constitution requires the President to “take care” that the laws “be” executed—a formulation that presumes someone else is doing the executing. Likewise, the Commander-in-Chief power presumes there is something there to command (for instance, an army or navy).

This distinction keeps a congressional check in place where it matters most. While some structural features of separation of powers may lie beyond Congress’s appropriations power, the government’s most important capacities—its powers, through law enforcement and war, to kill, maim, deport, and imprison in the name of “We the People”—remain under congressional as well as executive control.

Trump’s signing statement missed this critical distinction. The provision in question forbade use of Justice Department funds to prevent states “from implementing their own laws that authorize the use, distribution, possession, or cultivation of medical marijuana.” Trump responded with a polite, formulaic statement often used by Presidents to indicate they may disregard legislation. “I will treat this provision,” he wrote, “consistently with my constitutional responsibility to take care that the laws be faithfully executed.”

Trump’s statement presumes that he bears some obligation (and thus some prerogative) to enforce federal marijuana prohibitions without regard to congressional appropriations. But that view is wrong. Law enforcement is a resource-dependent executive power. In consequence, the only law the President is duty-bound to execute is the appropriations restriction itself. That means his Justice Department also must adhere to Congress’s will.

Hopefully, Trump will not act on his assertion. But this is an issue to keep an eye on. Congress’s appropriations power is one of the most important checks on the Executive. Trump cannot be allowed to undermine it.

Versus Trump: Going to Church In Times of COVID

12/7/20  //  Commentary

On this week's Versus Trump, Charlie and Jason discuss the recent Supreme Court decisions requiring states to allow in-person religious services even while other gatherings can be banned. The pair gently disagree about how hard or easy these cases are. Listen now!

Jason Harrow

Gerstein Harrow LLP

Charlie Gerstein

Gerstein Harrow LLP

Versus Trump: Legal Update + The GSA Travesty

11/17/20  //  Commentary

On this week's Versus Trump, Charlie and Jason discuss the status of Trump's legal challenges to the election (going nowhere) and the Trump Administration's dangerous and illegal refusal to designate Biden as the President-elect and therefore give his team resources for a smooth transition. Listen now!

Charlie Gerstein

Gerstein Harrow LLP

Jason Harrow

Gerstein Harrow LLP

Trump's Lawyers Should Be Sanctioned

11/11/20  //  Commentary

Lawyers who bring cases without evidence solely to harass or delay should be sanctioned. It's what Justice Scalia would have wanted.

Jason Harrow

Gerstein Harrow LLP