Balkinization: How the Supreme Court Wrecked the System Congress created for Declaring Emergencies

Comments:

The solution is not to have the courts second guess the POTUS as to what constitutes a nation emergency, but rather to replace the National Emergencies Act with a simple law categorically stating the POTUS may only exercise powers granted by Article II or a law of Congress. All other emergency powers are forbidden and the basis for impeachment and removal.

# posted by

Bart DePalma : 1:35 PM

Congress, as also noted at that blog, hasn't done a great job even within the powers retained post-Chadha. This is blatantly seen by not even meeting to examine declarations per the statute terms.

"Powerless" is not the term I would use, including a more restrictive law with strict time limits and the like.

Such inaction leads to more attempts at court review.

# posted by

Joe : 1:56 PM

I put aside my sympathy for White's dissent here.

# posted by

Joe : 1:58 PM

SPAM as a loyal Tee Party caddy for Trump is well aware that Trump could veto SPAM's suggested "simple" cure of NEA. "FORE! Extreme right!"

# posted by

Shag from Brookline : 2:02 PM

David Super's super analysis of how the House and Senate might react under the NEA in seeking to override Trump's declaration of a national emergency just might play out to create a real national emergency bottling up Congress, i.e., a national emergency arising from the declaration of a national emergency. Since Monty Python is unavailable, perhaps John Oliver can address this on his next Last Week Tonight.

# posted by

Shag from Brookline : 3:46 PM

BD: The solution is...to replace the National Emergencies Act with a simple law categorically stating the POTUS may only exercise powers granted by Article II or a law of Congress. All other emergency powers are forbidden and the basis for impeachment and removal.

Shag: Trump could veto SPAM's suggested "simple" cure of NEA.

Congress could attach the reform to the FY2020 appropriations bill and dare Trump to shut down the government.

Additionally, this Congress could override a Trump veto of the reform. The Democrats are opposing anything Trump supports even when they would otherwise support the policy. Many Republicans would see this as an opportunity to pull the leash on the dictatorial POTUS.

# posted by

Bart DePalma : 4:03 PM

SPAM's:

"Republicans would see this as an opportunity to pull the leash on the dictatorial POTUS."

is a reminder that during SPAM's support of the Cruz Canadacy in 2015 SPAM over, and over, and over and over, referred to candidate Trump as a fascist. Is SPAM now abandoning his service as a Trump Tee Party caddy?

Republicans daring Trump? They tried that with the second shutdown bill. What did Trump do? He declared a national emergency. Of course, if Republicans put country and the Constitution before party, they could help Democrats override Trump's declaration. Maybe SPAM should take a "mulligan."

# posted by

Shag from Brookline : 4:31 PM

I'm not sure how useful a concurrent resolution option would be in today's political universe though it would help if a binding "block" of that nature could not be filibustered in the Senate. Getting to 60 would be hard -- there are likely over 10 Republican senators who in some fashion voiced concern, but would they actually vote "no" when their own leader said beforehand that he was fine with it? OTOH, reasonable chance a bar majority can be found.

This underlines the value of other mechanisms to limit executive action such as quick sunset rules. I also am not going to get too cynical. Limiting executive action has occurred over the years, but it simply is hard for large body to deal with this situation, especially given how political parties have developed. The ease of a single office (presidency) to act was part of the very reason people supported a single executive. And, even there, the size of overall branch is going to make immediate action in many cases as hard to come by.

# posted by

Joe : 4:57 PM

Shag:

It would be interesting to see what Trump would do with my proposed reform bill.

Legislation is prospective. Trump would already have the $8 billion in funds he has tapped, only $3 billion of which comes out of the National Emergencies Act. The rest comes from pots of money for drug interdiction.

# posted by

Bart DePalma : 5:19 PM

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# posted by

Bart DePalma : 5:24 PM

Joe:

You are assuming the Democrats want to vote on a resolution reversing Trump's certification of a national emergency.

Remember, the primary issue in such a resolution is whether illegal immigration and drug smuggling constitute a national emergency. Heading into 2020, I suspect both sides are taking a real hard look on where their voters stand.

The Democrats margin of power in the House comes from districts Trump won and whose actual voters (not the non-voters and non-citizens polled by the media) support border security. If the vote was in the best interests of endangered Dems during the 2020 election, Pelosi would have the vote today, not announcing she was "strongly considering" it.

In the Senate, the handful of GOP objections are over whether the POTUS rather than Congress should make this determination. McConnell can easily reframe this exercise as an opportunity for Congress to make the determination.

If they vote on it, the Democrat House will almost certainly send a resolution stating the national emergency does not exist. The Senate committee considering the House resolution can issue a competing resolution stating illegal immigration and drug smuggling does constitute a national emergency.

The vote on the competing resolutions now forces senators to go on the record on whether they believe illegal immigration and drug smuggling does or does not constitute a national emergency. GOP senators and not a few Democrats like Manchin will have a hard time voting "does not" in contradiction to the belief of their red state voters.

# posted by

Bart DePalma : 5:26 PM

Personally, I think the National Emergencies Act is unconstitutional under Schechter Poultry.

# posted by

Dilan : 6:26 PM

"In the Senate, the handful of GOP objections are over whether the POTUS rather than Congress should make this determination."

If only. They'll be presented that way, but the truth of the matter is, Trump would have gotten his wall funding last year if a significant number of Republican Senators hadn't actively wanted to keep the border insecure.

McConnell avoided bringing wall funding to a vote to help them hide from the voters they'd deceived about their actual views on illegal immigration.

# posted by

Brett : 7:02 PM

Brett:

I don't think you are wrong that one reason we got to this point was there were some GOP caucus members who were unsympathetic to the wall. That is true.

But there's two other HUGE factors here.

First, and obviously, it was possible to negotiate wall funding with Democrats. Long before Pelosi was saying she had a moral objection to the wall, she was offering funding as part of a deal. The thing was, Trump had to agree to some immigration priorities of Democrats in return, specifically, solidifying DACA. And apparently, Trump was willing to do so, until Stephen Miller apparently killed the deal.

And second, there's the constituency Miller was representing, which is the base of the Republican Party. There's a whole bunch of people ready to scream "betrayal" at any deal. I am not going to claim, from your standpoint, that any deal is a good one. But there were deals on the table. There have always been deals on the table. And because we have a lot of veto points in our system, you have to give Democrats something they want in return.

The reality is the Republican base is completely unrealistic on immigration. I don't mean by that they are unrealistic to be restrictionists. Reasonable people disagree about the substantive issue. I mean they are unrealistic that they are going to get everything they want. Their main goals are only attainable through a comprehensive package-- the dreaded amnesty. They can achieve some goals through a DACA package, but guess what, right wing commentators started calling that "amnesty" too.

If you just want to scream all your life about how we let too many immigrants in, the Republicans are serving you perfectly. But if you want to actually get some immigration restriction, you are going to have to make deals, and that means that Democrats are going to get some of their immmigration wish list too.

# posted by

Dilan : 7:13 PM

McConnell's pre-approval of Trump's declaring a national emergency in presenting the bill that would avoid a shutdown might be examined in the context that his spouse is in Trump's cabinet. I assume her job is secure, for the time being. Surely McConnell's goal was an effort at pre-emption aimed at recalcitrant GOP Senators. McConnell was part of the Gang of Eight in 2017 vetted by Acting FBI Director McCabe on the FBI's investigation into Trump as a Russian asset.. It has been suggested that Groupie Rep. Devin Nunes leaked to Trump. But might it have resulted from pillow talk?

# posted by

Shag from Brookline : 7:30 PM

" Personally, I think the National Emergencies Act is unconstitutional under Schechter Poultry."

What do you say, Justices Thomas and Gorsuch?

# posted by

Joe : 8:02 PM

Joe:

Schechter Poultry was a 9-0 ruling with plenty of liberals on board. Justice Cardozo wrote a concurrence saying it was delegation running riot. And it is still good law.

You don't have to be Thomas and Gorsuch to apply it. Here you have a statute that just delegates the complete appropriations power to the President. There's no way that's a constitutional delegation, under current doctrine.

# posted by

Dilan : 8:21 PM

I'm sure the justices, since it is so bloody obvious, will agree.

# posted by

Joe : 8:40 PM

Let's put it this way. This case can actually go several different ways.

But holding the statute an unconstitutional delegation avoids the Youngstown problem, and also deals with the Chadha problem that has been called out here. And, as I said, it is completely consistent with operative caselaw.

This is a really stupid statute anyway. If you have an actual emergency, literally a "must act right now before Congress gets back in session in a day and a half", courts are going to give the President a lot of leeway unless he or she contradicts an act of Congress. If you don't have that kind of an emergency, get Congress back in session and appropriate the funds.

If we must have an emergency statute, say the President may spend up to this much money on this list of things over this period until Congress gets back in session and can vote an emergency appropriation. There's no reason to say "we give up, you can spend any appropriated money however you wish even against the wishes of Congress as long as you unilaterally declare an emergency". This makes a mockery of the Separation of Powers.

# posted by

Dilan : 8:52 PM

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# posted by

Bart DePalma : 10:15 PM

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# posted by

Bart DePalma : 10:18 PM

Dilan:

The Appropriations Clause only states: No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law... Congress retains the discretion whether or not and what degree to designate the object(s) on which an appropriation may be spent. In appropriating a sum of money, Congress can provide line items designating the exact items upon which every penny can be spent, give the entire sum to POTUS to spend as he sees fit or anything in between.

Indeed, even the most restrictive line item still grants the executive a great deal of discretion on how to spend the money. For example, if Congress appropriates money for a particular bridge, how that bridge is built is still up to the executive.

The National Emergencies Act and its associated statutes do not delegate one penny of appropriations power to the POTUS. Rather, Congress permits the POTUS limited discretion to change the objects of previous congressional appropriations. In this case, Trump is changing the objects of military construction spending from say an office building to a section of border fence. If Congress can appropriate a sum of money and give the entire sum to POTUS to spend as he sees fit, I can see no reason why Congress cannot grant POTUS the lesser discretion set forth in the NEA, et al.

You can disagree with Congress's decision to enact the NEA on policy grounds, but there is no provision of the Constitution which bars Congress from doing so.

# posted by

Bart DePalma : 10:22 PM

Bart:

So you think Congress can pass a law that says "we will spend $1.4 trillion dollars this year, however the President chooses"?

Because I think that's clearly barred by Schechter Poultry. Yes, Congress can make general appropriations. No, it can't just delegate the power entirely. Just as Congress can regulate commerce among the several states, but can't delegate the power to do so entirely to the executive with no guidance at all (the issue that caused the 9-0 ruling against FDR's outrageous power grab in Schechter Poultry).

That statute is a blatant violation of Separation of Powers.

# posted by

Dilan : 10:26 PM

"But holding the statute an unconstitutional delegation avoids the Youngstown problem, and also deals with the Chadha problem that has been called out here. And, as I said, it is completely consistent with operative caselaw."

And I'd be good with striking the Emergency Act down, entire. What have I been saying? That Trump is the President, full stop, and gets to exercise every power any President could, and, if you don't like Trump exercising a power, take it away from ALL Presidents.

What's off the table is just reining in Trump, and only Trump. But I get the sense that the Democratic leadership are still aiming for that, and hoping to preserve every illegitimate power for the Executive branch come the next Democratic administration.

The only way I see them agreeing to pare back executive branch power is if they choke on it being exercised by somebody they don't like, and Republicans hold firm on the idea that only a real fix is permissible.

Mind, Republicans are pretty bad at holding firm.

# posted by

Brett : 5:26 AM

"If you just want to scream all your life about how we let too many immigrants in, the Republicans are serving you perfectly. But if you want to actually get some immigration restriction, you are going to have to make deals, and that means that Democrats are going to get some of their immmigration wish list too."

Well, last year we theoretically shouldn't have had to give the Democrats some of what they wanted, but as a practical matter, sure, because every Democrat is on the Democratic side of this issue, (Even the ones who ran as immigration "restrictionists" themselves.) and some Republicans are on the Democratic side, too. We'd have needed a Senate majority of 60 or so to have gotten what we wanted after the inevitable, yes, betrayals.

And then McConnell wouldn't have scheduled the vote, because he doesn't want us knowing which Senators lied their way into office, because we'd primary them.

So, yeah, there has to be some horse trading, and making DACA legal is an obvious item to trade.

The problem is, "Give me something I want permanently, and I'll give you something you want contingently and back loaded. (And then snatch it back at the first opportunity!)" is an old, old Democratic negotiating tactic. Literally, goes back at least as far as Reagan agreeing to an amnesty in return for border enforcement, and never getting the border enforcement.

And legalizing the DACA people is irreversible, and border enforcement is contingent.

So the only sane Republican stance in approaching this negotiation is: "You've got a history of not delivering on your side, so THIS time, we we get what WE want up front, and you get what YOU want after we see some actual results."

And Democrats aren't yet ready to agree to that, because they're still planning on getting DACA, and then killing border enforcement.

# posted by

Brett : 5:42 AM

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# posted by

Joe : 7:12 AM

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# posted by

Joe : 7:20 AM

I'll just move on.

# posted by

Joe : 7:29 AM

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# posted by

Bart DePalma : 9:08 AM

Dilan:

Where does Schechter Poultry rule the Constitution somewhere requires Congress to define the objectives of its appropriations?

How could a court even determine if Congress had done so to an adequate degree?

# posted by

Bart DePalma : 9:09 AM

Bart:

All Schechter says is there has to be SOME amount of definition.

This, by the way, is why liberals who have FDR's genitals permanently in their mouth hate it. Because you can obviously delegate a ton of power, just not the entire power. But that IS the doctrine.

And note, the NRA was premised as an emergency statute, just like this one.

# posted by

Dilan : 9:44 AM

As with state's rights and other principles espoused by today's conservatives its clear we can put 'separation of powers' and concerns about delegation on the heap they are quick to torch if it means achieving their partisan and bigoted true principles. Watching Bart dance around the fact that this is clearly a 'delegation on steroids' to borrow a phrase is particularly amusing. As previous examples show giving the Executive a bag of money (or in Dilan's example the entire federal budget) and saying 'do whatever you want with this' is *not* delegation in Bart's partisan warped world view. Let's never take his ramblings about delegation to the 'mandarin' 'absolute' Executive bureaucracy seriously ever again. This is truly one of his 'these numbers are great news for John McCain/I guarantee a Romney victory' moments.

# posted by

Mista Whiskas : 9:49 AM

Dilan:

Schechter Poultry addressed the degree to which Congress may delegate lawmaking authority to a bureaucracy. The case has nothing to do with defining the objectives of an appropriation.

The former is an issue because Article I vests all legislative power to Congress. As I previously noted, the Constitution nowhere requires Congress to designate the objective of an appropriation.

# posted by

Bart DePalma : 10:24 AM

Mr. W:

You are free to identify the provision of the Constitution which requires Congress to designate the objective of an appropriation.

I find it fascinating that I have to ask this question both of progressives here (no surprise) and libertarians over at Volokh Conspiracy (who should know better).

# posted by

Bart DePalma : 10:30 AM

Bart, the delegation doctrine is... wait for it... an IMPLIED RESTRICTION. Just like the negative commerce clause, anti-commandeering, sovereign immunity, and a bunch of other things. I suppose you are going to tell me you don't believe in any of those either.

There are restrictions on power that are implied from the structural separation of powers in the Constitution despite not appearing in haec verba in the text. What's weird is that I have to educate you about this. You should know it cold given your political bent.

# posted by

Dilan : 11:14 AM

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# posted by

Mista Whiskas : 11:22 AM

Dilan, it's not that Bart doesn't get the idea of an implied restriction and it's not that he doesn't get it can apply to delegation. In fact he goes on regular diatribes about this in other contexts. It's laughingly worse/ he seems unwilling or unable to grasp that giving someone a sack of money and telling the 'do whatever you want with this' is delegation par exellence!

# posted by

Mista Whiskas : 11:23 AM

Mista:

Oh I know. This is one set of rules for the current administration and another set of rules for everyone else. (Or maybe one set of rules for immigration restrictionism and another set of rules for everything else, alternatively.)

# posted by

Dilan : 11:28 AM

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# posted by

Bart DePalma : 12:17 PM

Dilan: Bart, the delegation doctrine is... wait for it... an IMPLIED RESTRICTION.

Articles I-III vestment of all legislative power to Congress, all executive power to POTUS and all judicial power to the courts is quite categorical and forbids the other two branches from exercising the vested powers.

Article I's further vestment appropriation power to Congress is quite general does nothing more than state POTUS cannot spend what Congress does not appropriate. This gives Congress, not POTUS, enormous discretion over whether to define the objectives of an appropriation and to what degree.

The flip side of the Appropriations Clause is that POTUS can spend whatever Congress appropriates within the limits Congress places upon the money. When Congress declines to place strict limits on the money, POTUS enjoys the executive power to decide how to spend the appropriation.

CONGRESS IS NOT DELEGATING ANY ARTICLE I POWER TO THE EXECUTIVE BY DECLINING TO PLACE SOME RESTRICTION YOU AND OTHERS PREFER ON THE SPENDING.

# posted by

Bart DePalma : 12:18 PM

Your all caps is a deliberate misstatement of the issue.

It isn't declining to place a restriction. It is delegating the entire power to appropriate money, on any level of generality, to the President.

# posted by

Dilan : 1:18 PM

To borrow an analogy from a previous discussion, let's say when it comes to grocery matters the husband has all 'legislative' powers. He can decide there will be no diary products in the house or no pork products. The wife does the grocery shopping, she has the 'executive' power. There's a debate about whether pork rinds should be purchased for the kids to snack on. The husband decides not to change the pork rule, but then gives the wife a grocery card and says 'you can buy whatever you think we really need with this.' She goes out and buys two bags of pork rinds.

It's clear a delegation of the husbands grocery power has occurred.

This isn't rocket science. Only those blinded by pure partisanship or extreme dimness can't see this.

# posted by

Mista Whiskas : 2:13 PM

Dilan: It isn't declining to place a restriction. It is delegating the entire power to appropriate money, on any level of generality, to the President.

As used in the Appropriation Clause, a appropriation is an order of Congress releasing money from the Treasury and providing it to the government.

What provision of the NEA (or any other statute) do you believe allows POTUS to release money from the Treasury and provide it to the government? The provisions of the NEA and other statutes used by Trump all involve money previously appropriated by Congress.

Neither the Constitution, Schechter Poultry or NEA state what you claim they do.

# posted by

Bart DePalma : 2:17 PM

Mr. W:

Your hypo is not analogous to Article I or Trump's use of the NEA.

Article I, Section 1 is a limited grant of power: All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.

The legislative power of appropriation "herein granted" Congress by Article I, Section 9(7) is very general: No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law. There is no discussion of designating the objects of an appropriation. That is left to the discretion of Congress.

Under your hypo, the Congress husband enacted a law (presumably not vetoed by the POTUS wife) that no pork products will be brought into the house. This is not a limit on POTUS wife's spending. Thus, the end result is POTUS wife is free to buy pork products, so long as she does not bring them home.

Would you like to revise this?

# posted by

Bart DePalma : 2:35 PM

Let's remember that Bart and some other 'Constitution in Exile' folks complain about the equivalent of the husband telling the wife 'it's important for this family to eat healthy, so do some research and buy mostly groceries you determine to be healthy.' But now he's ok with the husband just giving the wife a grocery credit card and saying 'buy whatever you think we need.' The latter is clearly more of a delegation if there is any there at all.

Consider that our legislators considered the proper response to border security and came to a policy decision, then our Executive decided that instead he would set his officials, what Bart constantly complains of as 'mandarins' of the 'absolute bureaucracy,' coordinate a different policy.

In short, as often in the case, Bart's position was at best for proganda purposes only and at worst another confused, contradictory, unprincipled steaming pile of you know what.

# posted by

Mista Whiskas : 2:42 PM

The Comgress considered the President's proposed policy on immigration (the husband said 'we don't need pork rinds, instead chips and salsa will suffice.' But, the Congress/husband had also given the /Executive/wife a pre paid grocery card to be used for emergencies. The Executive/wife then went and bought pork rinds, claiming it was an emergency. Here there is clearly a worse 'delegation' than if the Congress/husband had said 'set up an agency/ask our dietician to determine what immigration measures/snacks are ideal and should be bought and implement the recommendation.' Instead the Executive/wife has made a total usurpation of the decision placed in the hands of the Congress/husband.

# posted by

Mista Whiskas : 2:51 PM

Mr. W:

You really have no concept of the rule of law. We are discussing what the law as written requires, not what I would prefer the law require.

FWIW, my proposed amendments for consideration by a convention of the states include two which substantially tighten up congressional appropriations. The reason I am proposing these amendments is because the current Constitution places very few limits on Congress's appropriation powers.

I see and you have offered no provision of Article I which prohibits the NEA provisions used by Trump.

End of discussion.

# posted by

Bart DePalma : 3:00 PM

Because of a prior commitment, I'm late catching up. I especially noted Dilan's closing at 11:14 AM in response to SPAM:

"There are restrictions on power that are implied from the structural separation of powers in the Constitution despite not appearing in haec verba in the text. What's weird is that I have to educate you about this. You should know it cold given your political bent."

SPAM's "political bent" is constitutional impotency. Besides, SPAM' is a FOXY textualist when it suits his purpose.

# posted by

Shag from Brookline : 3:09 PM

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# posted by

Mista Whiskas : 3:23 PM

Bart cannot rebut my analogy, in fact he just falls back to his talisman-like invocations of the Article I language. But of course Article I doesn't explicitly say Congress can't 'delegate' legislative power in the ways Bart often bemoans. It says 'all' legislative power is vested in Congress but doesn't say anything specific about whether revocable 'delegations', especially guided ones, are forbidden. Bart just thinks it's obvious that the word 'all' must *imply* that, but of course that's not the necessary natural reading there (a common sense reading comports with revocable guided 'delegations' taking none of 'all' the legislative power from Congress.)

But more importantly Bart is unwilling and or unable to see that blank check appropriations are of course delegations because the way the Executive executes law and policy is not just by setting declarations of things prohibited but also often by *spending money.* So as here Cingress has the power to make rules regarding border security or any other purported 'emergency'. They could declare open borders or big giant contiguous walls. It's up to them. But what's happened here is that the Congress approved policy in this area, one different than the Executive asked for, but Congress also gave the Executive a blank, use as you deem fit (again, the epitome of delegation!) check which the 'mandarins' of the 'absolute bureaucracy' are now going to use to make border security policy *as they see fit.* This is as clear of an example of what Bart bemoans as 'delegation' as the nose on his face, but in this case it's a Pinnochio sized nose!

# posted by

Mista Whiskas : 3:27 PM

Dilan/Shag: "There are restrictions on power that are implied from the structural separation of powers in the Constitution despite not appearing in haec verba in the text. What's weird is that I have to educate you about this. You should know it cold given your political bent."

OK, lets apply your implication argument.

What precisely does the term "Appropriations made by Law" imply concerning a requirement Congress detail the objects of the appropriation and what is the basis for this implication?

For example, is Congress required to make an appropriation for the government as a whole, by department, by sub-departments, for every office, for every pencil and paper clip?

What is the basis for the implication for your chosen level of detail?

Can you see the complete lack of foundation for an implication argument?

# posted by

Bart DePalma : 4:31 PM

I don't know, Bart. What does the Eleventh Amendment text imply about suits by a citizen against her own state?

That's not how implied powers work. The implication comes from the STRUCTURE, not just the text.

The structure of the Constitution is that Congress is supposed to decide how to spend money. Obviously, it can do this in broad strokes. But it has to do it. It can't delegate the entire decision, just like Congress can instruct regulatory agencies to regulate poultry processing within broad guideposts, but it can't just pass the NRA and tell the National Recovery Administration to draw up whatever it wants to.

# posted by

Dilan : 5:06 PM

Dilan: Obviously, it can do this in broad strokes. But it has to do it. It can't delegate the entire decision.

You have just acknowledged the impossibility of enforcing an implied rule requiring Congress to identify the purpose of the appropriation - there is no way to define how narrow the purpose must be.

The only part of this decision which Congress must make under the language of the Appropriations Clause is to enact a bill appropriating the $X from the Treasury. Under your "broad strokes rule," Congress can simply appropriate $X to conduct the operations of the government. Same end result.

The limited reprogramming of appropriated monies allowed under the NEA is far more restrictive than what is required by the Appropriations Clause.

# posted by

Bart DePalma : 6:52 PM

"You have just acknowledged the impossibility of enforcing an implied rule requiring Congress to identify the purpose of the appropriation - there is no way to define how narrow the purpose must be. "

This was exactly the argument that lost 9-0 in Schechter Poultry.

# posted by

Dilan : 7:21 PM