Zachary Price (UC Law, San Francisco) has posted Public Functions and Private Resources on SSRN. Here is the abstract:
At the federal level, the boundary between public and private functions is under pressure. On top of a longstanding trend toward privatizing government functions and relying on contractors instead of government personnel, the second Trump administration has sought to enlist private resources more comprehensively for performing public functions. This essay for the Washington University Law Review’s symposium on “Taxing, Spending, and the Constitution” outlines constitutional principles for assessing such actions. Building on prior work, it explains that presidents may seek outside assistance in exercising “resource-independent” powers, meaning powers like the veto and pardon authorities that do not depend on congressionally authorized resources in the first place. By contrast, they may not disregard legal limits on funding or use of outside resources for “resource-dependent” powers like use of military force, law enforcement, and administration of benefits. The essay defends this limit on presidential power as a matter of the Constitution’s text and structure. It also discusses relevant historical examples including disputes over foreign aid and informant rewards in the Washington administration, nineteenth-century controversies over law enforcement funding, the Iran-Contra scandal from the Reagan administration, recent funding restrictions on marijuana enforcement, and the general pattern of modern applicable opinions by courts, the Comptroller General, and the Justice Department. Finally, the essay applies this framework to defend three principles with contemporary relevance: (1) with respect to resource-dependent functions, Presidents lack authority to disregard resource levels determined by law either affirmatively or negatively; (2) when funds or other resources for resource-dependent government functions come under presidential control, they thereby fall subject to legal limits on such resources; and (3) regulatory settlements should receive close scrutiny when they result in free services to the government or otherwise expand the government’s capacity beyond what Congress intended.
Recommended!
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