Joel Michaels (Columbia University – Law School) has posted The Bowsher Presidency (Harvard Law Review, forthcoming) on SSRN. Here is the abstract:
The power of the purse is the principal source of Congress’s political leverage over the executive branch. Yet in recent years, presidents have repeatedly violated appropriations law and taken dramatic spending actions grounded in broad statutory delegations. Legal scholars attribute these developments to partisan polarization, decaying interbranch norms, and judicial marginalization of appropriations. However, they have overlooked a major driver of executive spending power: the Supreme Court’s separation-of-powers jurisprudence. This Article analyzes how the case of Bowsher v. Synar—which prevents Congress from empowering Article I officials to help implement appropriations laws—interlocks with technical aspects of the federal budget process to produce a structural dilemma. In order to effectively enact certain forms of spending, lawmakers must sacrifice their ability to use that spending to check the executive. This Article traces how the delegations resulting from Bowsher have permitted the executive to effectively determine its own budget authority, weakened Congress’s institutional capacity to respond to abuses, and thwarted lawmakers from passing spending legislation in the first place. In doing so, the Article reframes an urgent scholarly debate about how to restore Congress’s fiscal powers.
Highly Recommended!
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