The “no funds” rider

How to strange Executive Branch overreaching in the budgetary purse-strings.

The nine most beautiful words in the English language, for those of us eager to get some control over the current junta:

“No funds appropriated by Congress shall be used to …”

That language, when included in any appropriations bill, can stop Executive Branch action in its tracks. Nothing can be done without funds. The Anti-Deficiency Act of 1921 criminalizes any expenditure not covered by an appropriation. Since it is against the law for an Executive Branch official to work unpaid, no Executive Branch official can do anything forbidden by a “no funds” rider, even if it involves no other expenditure of Federal resources.

The Courts have even held that the Congress may take away a statutorily granted right, without repealing the original statute, by forbidding the expenditure of funds to effectuate that right. (The case, whose name I can’t recall, had to do with the provision for restoring the right to gun ownership to people with felony convictions far in the past. Update: the case is U.S. v. Bean; thanks to Peter Goldberger for the pointer.)

I have two specific proposals to offer:

1. To prevent mass pardons in January 2008, a provision that no funds appropriated may be used to prepare or issue a pardon for any person who, during the current administration, has been an employee of the Executive Office of the President, or has held a Schedule C (patronage) position, or been a non-career member of the Senior Executive Service, or held a position, permanently or on an acting basis, that requires Senate confirmation.

2. To force a vote on Social Security privatization, a provision that no funds appropriated may be used to formulate, prepare, or study the diversion of funds collected under the payroll tax to any private account.

The first provision has real bite; the second is just shadow-boxing. But the Republicans are welcome to vote against them, and the President to veto them.

Bring it on, I say.

Update A reader more learned in the law than I dissents on the pardons question:

I don’t think the rider you have in mind would be

constitutional because it would trench too far on the

power of the executive.

In general, Congress’ power to control certain

executive actions by eliminating appropriations is

consistent with its power to tax and spend, and also

with its ability to direct executive actions by

writing laws that the executive must enforce or obey.

The power to pardon, however, is a core executive

function specifically granted to the President in Art.

II, Sec. 2, cl. 1. Except in cases of impeachment

that power is not reviewable by the other branches

(see Marc Rich) and has been exercised without any

limitations except political ones.

The historical record is even more dismal. The

constitutional convention considered two limitations

on the pardon power and rejected both of them — a

requirement that the pardon be reviewed by the Senate

and a limitation of pardons to persons already

convicted. A Congressional enactment that would

achieve that goal by controlling appropriations would

have a heck of an uphill battle even in a neutral

Court, which this one of course would not be.

I would like to hear comparably informed thoughts on the question of Constitutionality. To my amateur ear, the argument above sounds cogent, but it doesn’t sound like an absolute knock-down. After all, it’s a “core function” of the President to “take care that the laws be faithfully executed,” but his capacity actually to do so is limited by the appropriations process.

Losing a pardons case in the Supreme Court wouldn’t be a catastrophe, but if the measure isn’t at least arguably Constitutional of course it shouldn’t be offered. A “sense of the Congress” concurrent resolution would have no legal force, but would still be a good vehicle to force debate.

Author: Mark Kleiman

Professor of Public Policy at the NYU Marron Institute for Urban Management and editor of the Journal of Drug Policy Analysis. Teaches about the methods of policy analysis about drug abuse control and crime control policy, working out the implications of two principles: that swift and certain sanctions don't have to be severe to be effective, and that well-designed threats usually don't have to be carried out. Books: Drugs and Drug Policy: What Everyone Needs to Know (with Jonathan Caulkins and Angela Hawken) When Brute Force Fails: How to Have Less Crime and Less Punishment (Princeton, 2009; named one of the "books of the year" by The Economist Against Excess: Drug Policy for Results (Basic, 1993) Marijuana: Costs of Abuse, Costs of Control (Greenwood, 1989) UCLA Homepage Curriculum Vitae Contact: