Unfortunately, now that I've been out of the
Department awhileI no longer know such things with any degree of
specificity or assurance. However, I believethe Department has
historically construed such appropriations riders extremely narrowly, or
literally, to permit the Department to expend alternative sources of
fundingin order to fulfill its statutory or constitutional
obligations. See generally http://www.usdoj.gov/olc/lapsed.upd.htmand
"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 AppropriationsAct, 2004.)As a practical
matter, how sweeping are these restrictions, assuming they survive into the
appropriations bill that is ultimately enacted?
Jonathan L. EntinProfessor of Law and Political
ScienceCase Western Reserve University216-368-3321
(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 LedermanSent: Friday, July 25, 2003 12:12
PMTo: [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.
