Pinching the President's Prosecutorial Prerogative: Can Congress Use Its Purse Power to Block Khalid Sheikh Mohammed's Transfer to the United States?
Martinez, Nicolas L., Stanford Law Review
"We have been unable to identify any parallel ... in the history of our nation in which Congress has intervened to prohibit the prosecution of particular persons or crimes." So wrote Attorney General Eric Holder in a December 2010 letter addressed to the leadership of the Senate, in response to proposed congressional funding restrictions that would have forbidden the executive branch from using any appropriated funds to transfer non-American Guantanamo detainees held by the Department of Defense--Khalid Sheikh Mohammed in particular--to the United States. Those funding restrictions have since been signed into law on multiple occasions.
There is little doubt that these restrictions destroyed any hope the Obama Administration had of prosecuting the alleged 9/11 plotters in federal civilian court. What is in doubt, however, is whether Congress had the power to enact these restrictions in the first place. Congress's actions have been labeled by the Attorney General as "dangerous precedent" and by the President as a "'violat[ion] of separation of powers principles" under certain circumstances. Yet no legal scholarship has been published that analyzes whether Congress's exercise of its purse power unconstitutionally infringed on either the President's authority as commander-in-chief or the executive's monopoly over the federal prosecution of named individuals. This Note aims to be the first voice on the issue.
Using both a separation of powers balancing analysis and a tripartite framework that builds on the work of Charles Tiefer, this Note concludes that while Congress has indeed stretched the permissible limits of its purse power in this instance, the legislature has not violated the Constitution. The analysis reveals, moreover, that Congress's funding restrictions infringed less on the President's military authority as commander-in-chief than on his prosecutorial authority. Ultimately, this Note also raises the question of whether Congress's actions to effectively forbid the prosecution of named individuals in federal court, even if constitutional, are still bad policy.
INTRODUCTION I. CONGRESSIONAL FUNDING BANS AND THE PROSECUTION OF KHALID SHEIKH MOHAMMED II. THE CONSTITUTIONAL POWERS A. Congress's War Power B. Congress's Purse Power C. The President's Commander-in-Chief Power D. The President's Prosecutorial Power III. PURSE STRINGS AS A CONSTRAINT ON THE COMMANDER-IN-CHIEF A. Historical Precedent: Vietnam and the Boland Amendments B. Separation of Powers Balancing and a Tripartite Framework C. Congress's Funding Ban Did Not Unconstitutionally Limit the Commander-in-Chief IV. PURSE STRINGS AS A CONSTRAINT ON THE CHIEF PROSECUTOR A. Historical Precedent: Is There Any? B. Congress's Funding Ban Did Not Unconstitutionally Limit the Chief Prosecutor CONCLUSION
Amidst a spirited defense of congressional apportionment in The Federalist No. 58, James Madison presciently wrote: "This power over the purse may, in fact, be regarded as the most complete and effectual weapon with which any constitution can arm the immediate representatives of the people...." (1) While Congress's purse power is as formidable today as Madison envisioned it to be in 1788, this authority has limits. (2) Nonetheless, the extent to which Congress may wield its power of the purse to infringe upon the constitutional powers committed to the other branches of government--the executive in particular--remains blurry. The clash between Congress's power to appropriate and the President's Article II authority has rarely been more intense in American history than during the present Global War on Terror. For years, members of Congress (primarily Democrats) have sponsored legislation attempting to use Congress's purse power to hasten U.S. withdrawal from Iraq (3) and to dictate military policy in Afghanistan. (4) These measures have prompted fierce debate on the floor of Congress and in the court of public opinion, and they have even led to presidential vetoes. …