The Duty to Appropriate: Why Congress Has a Constitutional Obligation to Fund Criminal Law Enforcement

Abstract

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.