Who has the power to spend taxpayer money? As a Constitutional matter, this is an easy one. The Constitution provides that authority to Congress. In the 1787 constitutional convention, Benjamin Franklin voiced the belief that making laws about taxing and spending money should be given to the “immediate representatives of the people.”
This seems only fair since the money would typically come from the people, so the representatives closest, and thus most accountable, to them should make the basic decisions about its use. One scholar has explained that the “requirement of legislative appropriation before public funds are spent is at the foundation of our constitutional order.” One reason this is true is that the duty of Congress to “exercise control and assume responsibility over the federal fisc” is a core protection of the principle of separation of powers, particularly as “a constitutionally mandated check on Executive power.”
Indeed, James Madison argued that the “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, for obtaining a redress of every grievance, and for carrying into effect every just and salutary measure.”
Notice that this rationale is directed mostly at the power of Congress vis-à-vis the executive branch. Is there any risk from other quarters? A case pending in the federal courts demonstrates an unlikely threat to representative decision-making about federal spending.
The case was brought in a federal district court located in Massachusetts by Planned Parenthood and two of its affiliates (including Utah’s). These businesses are challenging a provision of the omnibus spending bill that became law on July 4 of this year. The provision prohibits, for one year, federal funds from being given to entities that provide elective abortions, of which Planned Parenthood is the largest in the United States.
On its face, such a challenge seems almost frivolous, given Congress’s clear authority to make such decisions. The judge in the case, however, “issued an unexplained ‘temporary restraining order’ (TRO) on the first business day after the law passed, just hours after Planned Parenthood filed its complaint and without even waiting to hear the Justice Department’s defense of federal law.” The order requires the executive branch to ignore Congress and continue to make payments to Planned Parenthood.
Eventually, on July 21 and July 28, the judge issued two opinions making an argument for why the government must fund the abortion provider despite federal law. The latter opinion was issued after the U.S. Department of Justice had appealed the ruling.
The opinions make two claims. First, that the law violates Planned Parenthood’s free speech. This is hard to credit since the spending condition Congress enacted addresses the conduct of providing abortions rather than any advocacy of a particular position.
Second, and even more implausibly, the court says that the spending provision is a bill of attainder. National Review’s Dan McLaughlin helpfully explains: “The essential concept of the bill of attainder clause in the Constitution is that a legislature may not punish a particular individual for previous conduct by passing a law rather than by having the executive put the target on trial for violating an existing law.” He points out that the challenged spending provision does not rely on past conduct and that an organization’s loss of federal funding is not the type of punishment prohibited by this constitutional provision.
There are some governments in which courts rule on every conceivable issue without regard to separation of powers, but the United States is emphatically not one of them.
Confining each branch of government to the exercise of its constitutional authority is essential to securing representative government and the rule of law. Giving the spending power to a single federal judge does precisely the opposite. The court of appeals should quickly remedy this error.
