93 Iowa L. Rev. 1319 (2007-2008)
This Article considers the constitutionality and propriety of recent appropriations riders passed by the House of Representatives in response to controversial federal court rulings. The riders prohibit the use of any federal funds for the enforcement of court orders issued in specified cases. These enforcement-blocking provisions raise significant separation-of-powers concerns as between Congress and both coordinate branches of the federal government.
The Article begins by looking at the controversial First Amendment rulings that triggered the enforcement-blocking riders, and the Congressional debates over the proper way to respond to the rulings. The riders are not merely symbolic protests, but could have a real effect on the ultimate enforcement of a final court order by preventing the U.S. Marshals Service from taking any action to enforce the order.
Next, the Article considers whether enforcement-blocking riders violate the separation of powers. This depends on the scope of Congress's power over appropriations, the nature of the Article III judicial power, and the Executive's responsibility for enforcing final court judgments. Each is considered in turn. This portion of the Article concludes that enforcement-blocking provisions raise substantial separation-of-powers concerns because they tread close to the heart of the Article III power and almost certainly impinge on the Executive's duty to enforce final court judgments.
Finally, the Article considers the implications of Congress' expansive view of its power over appropriations and its power of constitutional interpretation. Even if each coordinate branch of government should have independent interpretive power vis-à-vis the Constitution, Congress' broad conception of its own power in this regard, in conjunction with its broad appropriations power, could lead to sweeping and untenable consequences. Accordingly, this Article concludes that Congress is constitutionally barred from selectively defunding executive enforcement of final federal court orders.
Jennifer M. McAward,
Congress's Power to Block Enforcement of Federal Court Orders,
93 Iowa L. Rev. 1319 (2007-2008).
Available at: https://scholarship.law.nd.edu/law_faculty_scholarship/735
Originally published in Iowa Law Review.