Re: Q for Next Year's Exam?

[Marty Lederman]

Unfortunately, now that I've been out of the Department awhile I no longer know such things with any degree of specificity or assurance.  However, I believe the Department has historically construed such appropriations riders extremely narrowly, or literally, to permit the Department to expend alternative sources of funding in order to fulfill its statutory or constitutional obligations.  See generally http://www.usdoj.gov/olc/lapsed.upd.htm and "Authority for the Continuance of Government Functions During a Temporary Lapse in Appropriations, 5 Op. O.L.C. 1, 5 (1981).   And, in cases where the statutes absolutely preclude DOJ expenditures . . . well, there are always other agencies; therefore it's very rare that Congress will act so comprehensively in its appropriations function as to preclude the President altogether from satisfying his constitutional duty to see that the laws are faithfully executed. ----- Original Message ----- From: Jonathan L. Entin To: [EMAIL PROTECTED] Sent: Friday, July 25, 2003 3:42 PM Subject: Re: Q for Next Year's Exam? A practical question for Marty Laderman: Does DOJ have other sources of funding for its activities beyond the regular appropriations bill that passed the House with those riders? (BTW, they are in sections 803 and 808 of H.R. 2799, the House-passed Departments of Commerce, Justice, and State, the Judiciary, and Related Agencies Appropriations Act, 2004.) As a practical matter, how sweeping are these restrictions, assuming they survive into the appropriations bill that is ultimately enacted? Jonathan L. Entin Professor of Law and Political Science Case Western Reserve University 216-368-3321 (voice) 216-368-2086 (fax) [EMAIL PROTECTED] (e-mail) -----Original Message----- From: Discussion list for con law professors [mailto:[EMAIL PROTECTED]On Behalf Of Marty Lederman Sent: Friday, July 25, 2003 12:12 PM To: [EMAIL PROTECTED] Subject: Re: Q for Next Year's Exam? One of the riders provides:  "None of the funds appropriated in this Act may be used to enforce the judgment in Newdow v. U.S. Congress 292 F.3d 597 (9th Cir. 2002)."     The other provides:  "None of the funds appropriated in this Act may be used to enforce the judgment of the United States Court of Appeals for the Eleventh Circuit in Glassroth v. Moore, decided July 1, 2003 or Glassroth v. Moore, 229 F. Supp. 2d 1067 (M. D. Ala. 2002)."   [snip] The riders do not prohibit the Federal Government from using funds other than those "appropriated in this Act" to enforce the judgments, and do not purport to absolutely prohibit any entity (e.g., the Department of Justice) from enforcing the judgments -- let alone prohibit every possible enforcement entity, federal and state, executive and judicial, from enforcing the judgments.  If Congress passed a law completely precluding any means of enforcement, only then would the statute implicate the classic, and unresolved, questions discussed by, e.g., Sager, Fallon & Meltzer, etc.