The Illusory "Power of the Purse"

In many discussions with administration supporters regarding the ongoing surveillance program and the administration's legal reasoning justifying it, my opponent has brought forth the argument that Congress has no power to direct how the President conducts himself but ultimately they have the "power of the purse" if they disapprove of his actions.

In my opinion, this argument fails in light of the rest of the administration's reasoning, because that legal framework makes this power an instrument so blunt as to be unusable.

Follow below the fold for some more discussion.

I did some searching around, but didn't find any diaries concentrating on this issue.  If it's been covered before, let me know and I'll delete.

The first point to note is that Congress never explicitly funded this specific program or any other similar programs which may yet not have been revealed.  Indeed, they hardly could have done so since all but eight of them were completely unaware of the program's existence prior to last December.

So the question the arises:  what exactly would they need to de-fund in order to put a stop to activities of which they disapprove whilst still allowing programs of which they approve to continue.

The first idea might be to write legislation of the form "no funds appropriated herein may be used for the purpose of ..." but that runs aground on the administration's argument that Congress has no power to get into the details of how the "Commander in Chief" carries out his duties.  In other words, the administration argues that once they've got the money, they have full freedom to spend it as they wish without regard for what Congress has said about it.

The next idea might be to de-fund the particular department of the NSA which is conducting this program.  But, as we already saw in the case of "Total Information Awareness," the administration could then simply transfer that function to some other department under some other name.  Indeed, even if Congress were to de-fund the NSA as a whole, the administration (by its reasoning) could merely resurrect it under another name within some department of the military and continue merrily on.

So in the end (according to the administration's reasoning) the only way Congress could exercise the "power of the purse" to stop any "national security" activity of which they disapprove would be to de-fund the military as a whole, leaving the administration no place to transfer his activities.  But obviously, this (or even the earlier option of de-funding NSA) goes way beyond what any sane Congress would do.  So in essence, the "power of the purse" is completely illusory if the administration's legal theory holds.

•  'Power of the Purse' has been dead for 23 years.

  It lies buried under a headstone marked, "Boland Amendment."

  by Kagro X on Fri Mar 17, 2006 at 09:43:20 AM PDT

•  tips, slings and arrows

  There was a time, long ago, when I seem to recall having substantive debates where people actually listened to and addressed what their interlocutors said.  Once in a rare while one or the other would even be persuaded.

  It all feels like a dream to me now ...

  by jrooth on Fri Mar 17, 2006 at 09:47:08 AM PDT