Protecting the Appropriations Power: Why Congress Should Care About Settlements at the Department of Justice

Brigham Young University Law Review, 2009 by Peterson, Todd David

INTRODUCTION

In the wake of the 9/11 attacks, and the subsequent presidentially declared war on terror,1 the President and the Executive Branch assumed new powers to respond to the perceived terrorist threat. Some of these powers, like those granted by the Patriot Act2 and the Authorization for the Use of Military Force,3 were granted by Congress. Other authority, such as the power to authorize the National Security Agency ("NSA") to conduct warrantless wiretaps on American citizens4 and the power to use coercive interrogation techniques,5 was assumed by the President without any congressional authorization. The President took these actions in accordance with secret legal opinions issued by the Department of Justice's Office of Legal Counsel ("OLC").6 The OLC memoranda supported a conception of the President's commander-in-chief powers that was so broad as to be virtually unlimited, and they rejected the notion that Congress could statutorily control the President's exercise of this authority.7

Not surprisingly, the OLC memoranda prompted a storm of protest.8 One commentator wrote that the OLCs torture memorandum was not something "of which anyone could be proud" and that "[t]he overwhelming response by experts in criminal, international, constitutional, and military law was that the legal analysis in the government memos was so faulty that the lawyers' advice was incompetent."9 This critique of the OLC memoranda prompted observers to question the process by which the memoranda were created, a process that excluded anyone who might have differing views and that was designed to create a brief for presidential authority rather than a deliberate and independent assessment of the powers of the President.10 Scholars have begun to question whether the Department of Justice, the Office of the Solicitor General ("SG"), and the OLC, in particular, were capable of providing anything other than position papers on behalf of unrestricted presidential power.11

As a result, these criticisms have caused some to wonder whether the Department of Justice can adequately protect the constitutional separation of powers in its current form. Although many would agree with former OLC chief, Theodore Olson, that "it is not our function to prepare an advocate's brief or simply to find support for what we or our clients might like the law to be,"12 other commentators have begun to suggest that the Department of Justice needs to develop new internal checks on the issuance of legal opinions13 or have even questioned whether the Constitution should be amended to make the Attorney General independent from the President's control.14

These proposals are not new. Congress held hearings on the possibility of an independent Department of Justice after the Watergate scandal.15 The issue was also raised by President Carter, who requested the Department of Justice to analyze whether Congress could constitutionaUy make the Department of Justice independent from the President's control.16 The tendency of all these discussions is to focus upon visible assertions of presidential authority. The exercise of presidential authority in the area of national security or war power certainly grabs our attention and demonstrates the importance of independent and unbiased legal advice that properly constrains the exercise of presidential authority.

But these dramatic examples of presidential power are not the only context in which the Department of Justice exercises considerable audiority over the constitutional separation of powers. There are innumerable ways in which the Department's control over the litigation on behalf of the United States gives it the opportunity to respect or to evade the audiority aUocated so carefully by the Constitution. In particular, the Department's actions can respect or subvert the Constitution's grant of appropriations authority to Congress.

The Constitution clearly and unambiguously places control over the appropriation of federal funds squarely in the hands of Congress. 17 The Framers recognized that the control over the power of the purse was the foundation of Parliament's ability to resist the authority of the king, and they gave Congress the same power so that it would have the ultimate weapon against executive tyranny. 18 Congress has unquestionably used this authority effectively to control not only the amount of federal expenditures, but also the policy priorities of the federal government and, through explicitly targeted restrictions on the appropriations, the conduct of the other branches.19

In spite of this authority, or perhaps indeed because of Congress's great power, the executive branch has sought ways to circumvent congressional control over the federal purse and achieve its own ends outside of the will of Congress. Most famously in recent years, the Reagan Administration sought to avoid the Boland Amendment - a congressional restriction on aiding the Nicaraguan Contras - through the use of funds obtained from the covert sale of arms to Iran.20 But executive efforts to evade congressional control over the appropriations process go back much further than the IranContra affair. During the nineteenth century, executive agencies, particularly the War Department, routinely entered into contracts for which there were no appropriations and put Congress in the awkward position of having to fund the contract or tell government contractors that they were not going to be paid for material delivered to the federal government. In response, Congress enacted the Antideficiency Act to prohibit the obligation of federal funds for which there was no existing appropriation.21 Executive branch contracting officials proved so adept at avoiding or just plain ignoring the Antideficiency Act, however, that Congress found it necessary to amend the Act multiple times.22 Finally, Congress became so fed up with the evasion of its appropriations authority that it amended the Act to provide criminal sanctions for the violation of its provisions.23 Because that did not exhaust the ingenuity of executive officials in finding innovative ways around the appropriations process, Congress adopted other statutes to enforce its exclusive authority over the appropriations process. For example, the Miscellaneous Receipts Act requires executive branch agencies to deposit any monies collected by the agency in the general Treasury account, which prevents the agencies from supplementing their appropriations budget.24