The Duty to Appropriate: Why Congress Has a Constitutional Obligation to Fund Criminal Law Enforcement,
106 Calif. L. Rev. 511
In the Federalist Papers, James Madison famously called the power of the purse “the most complete and effectual weapon” of the representatives of the people, as part of his defense of the fledgling Constitution. In practical terms, Madison’s claim has proven true time and time again—with Congress using appropriations bills to assert extensive control over the modern administrative state. In legal terms, however, the power of the purse has received remarkably short shrift in both scholarship and case law, especially regarding the relationship between congressional appropriations and the separation of powers doctrine. Specifically, there is no Supreme Court opinion or body of research that systematically defines how appropriations may influence the President’s independent constitutional functions.
In response to this gap, this Note examines the relationship between appropriations and separation of powers, focusing on criminal law enforcement as a model issue. First, this Note argues that the Appropriations Clause confines spending decisions to Congress but does not give Congress plenary control over spending, requiring Congress to appropriate funds to the Executive and Judiciary for their independent constitutional functions. Second, this Note argues that criminal prosecutions should be considered an exclusive executive function, giving Congress a constitutional duty to fund criminal law enforcement. Congress may breach that duty by refusing to provide funding or by placing impermissible conditions on the use of such funds, both of which would force the President to either violate the Appropriations Clause or the Take Care Clause. Because Congress’s action would result in this unconstitutional outcome, this Note ultimately concludes that Congress has a constitutional obligation to provide funding for criminal law enforcement.