- The Washington Times - Sunday, January 2, 2011


On the final day of the 111th Congress, as part of a defense appropriations bill, legislators approved a provision that prohibits the spending of federal dollars to transfer Guantanamo detainees to the United States. With this provision, Congress is using its power of the purse to prevent President Obama from trying alleged terrorists in federal courts. In response, a variety of critics across the ideological spectrum - from Attorney General Eric H. Holder Jr. to conservative legal analysts David B. Rivkin and Lee Casey - have objected that the legislation violates constitutional separation-of-powers principles. The gist of the critics’ argument is that the president, as the constitutional executive, is the nation’s top prosecutor, and it should be up to him - and not Congress - to decide who is prosecuted, how and where.

It’s true that the president is, in effect, the nation’s chief prosecutor because the Constitution places in him “the executive power.” Investigating and prosecuting crimes is a quintessentially executive activity. However, while he is tasked by the Constitution with the prosecutorial responsibility, the president is not free to prosecute whomever he wants, wherever he wants for whatever conduct he idiosyncratically believes should be treated as a crime. It is Congress, not the president, that defines criminal conduct; something is not a federal crime unless Congress says it is. It also is Congress that created the courts where federal crimes are tried and Congress that set forth the jurisdiction of those courts. If Congress had chosen not to enact criminal laws, there would be no prosecutorial function for the president to carry out. And if Congress had not created (and funded) the federal trial courts, there would be no venue for prosecution. When the president is fulfilling his role as prosecutor in chief, he is doing so within a framework that is, and always has been, dictated by Congress.

Indeed, the Constitution grants to the president little power that does not depend on congressional action in one form or another. The pardon power is the only executive power in which the legislature plays no part. The president is expressly made the commander in chief; however, for that position to have any meaning, Congress must raise and maintain a military force. The president is empowered to appoint high-level government officials and negotiate treaties, but those require advice and consent from the Senate. When it comes to enforcing the law, the scope of “the executive power” is effectively whatever Congress says it is because that power cannot extend further than the law itself - law that is written by Congress.

Further, the president has a prosecutorial staff only because Congress has appropriated money to pay the salaries and other costs associated with the work of that staff. If it chose to do so, Congress could defund the Department of Justice. Such congressional action would strike at the heart of the president’s prosecutorial responsibilities, but it would be constitutionally permissible nevertheless.

This is hardly the first time Congress has used its own power to restrict how a president exercised his most fundamental constitutional authority. For example, in the late 18th century, the United States was engaged in naval hostilities with France. Although Congress did not formally declare war, it authorized President John Adams, as commander in chief, to seize ships that were “bound or sailing to” France. When there was a court challenge to the seizure of a vessel coming from France, Chief Justice John Marshall, writing for a unanimous Supreme Court, concluded that the seizure was not legally authorized and was therefore improper. Thus, even in his classic constitutional role as commander in chief, the scope of the president’s power was limited by the congressional authorization under which he was acting.

The Framers intended that Congress would have tools to rein in presidential decisions with which it disagreed - even when the president’s action flowed from the core of his constitutional power. When Congress uses its legislative prerogatives to limit the exercise of executive power, it is not a violation of the separation-of-powers principles; to the contrary, it is an occasion of separation of powers at work.

Thomas M. Beck has taught at the George Mason University School of Law. He is the author of “Constitutional Separation of Powers: Cases & Commentary” (Vandeplas Publishing, forthcoming).

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