Congress never should have given away the power to appropriate unlimited settlements.
Congress never should have given away the power to appropriate unlimited settlements.
A cting Attorney General Todd Blanche must think Americans are stupid, because he keeps saying things that no intelligent person could take seriously.
When announcing his office’s naked slush fund for friends of the president, Blanche righteously proclaimed that “the machinery of government should never be weaponized against any American.” Says the man prosecuting James Comey over seashells.
He reports that the dollar figure “of the Anti-Weaponization Fund’s funding does not represent the value of any claim by Plaintiffs, but rather is based on the projected valuation of future claimants’ claims.” And — what a coincidence — this rigorous projection came out to exactly $1.776 billion.
To defend the fund, Blanche cites the Keepseagle settlement agreed to by the Obama administration, which distributed $300 million to Native American nonprofits and philanthropic organizations. But that settlement was approved by a federal judge. Blanche’s fund, by contrast, was devised to avert impending judicial scrutiny.
Also, was the Keepseagle settlement not an abuse of power? Here, Obama’s past misdeeds are an excuse masquerading as a moral justification. Unjust acts are unjust, regardless of who did it first. Having two agencies that you control contrive a pretextual “deal” to reward political taxpayers with taxpayer funds is a betrayal of the presidential oath.
Trump’s slush fund is not, however, an abuse of presidential power. It is an abuse of legislative power — the Article I power to appropriate money — that the nominally legislative branch unduly delegated to the executive. Appropriations have always included disbursements of legal judgments and settlements owed by the federal government. Congress surrendered its authority to oversee such disbursements relatively recently.
Until the mid-20th century, Congress approved or denied every monetary judgment against the United States through annual appropriations. It almost never withheld payments, though the due diligence required was apparently too much to handle. To relieve itself, Congress in 1956 created the Judgment Fund — the account used to finance Trump’s slush fund — as a permanent, indefinite appropriation to pay judgments under $100,000.
Fulfilling what remained of its constitutional duty still proved too burdensome for Congress. So it expanded the Judgment Fund over the next two decades to remove any substantive limit: first allowing it to pay “compromise settlements” in the same manner as court-ordered judgments, then removing the $100,000 cap on payments. Nowadays, the Judgment Fund spends billions of dollars per year, all without a whit of involvement by the one branch empowered to spend public money.
Many in Congress are upset at how the president is misusing the authority they gave him. Too bad. Because the statutes they enacted impose no limit on how much the Judgment Fund can spend, Trump’s “settlement” may not violate the law. If Congress could muster enough courage to amend the law or expressly prohibit the slush fund, the president would veto their reprisal. This is how the policymaking process, once abdicated, stays inverted: The president initiates major acts under broad statutory powers, and the legislature fails to respond.
Perhaps, however, the Judgment Fund’s very structure is unconstitutional, inviting the judiciary to step in. The fund’s creation is not, in fact, an appropriation — defined as an act or instance of assigning money — but, rather, a delegation of the power to appropriate, unbounded by any intelligible principle. The Supreme Court once held that such delegations are unlawful under the Constitution’s careful separation of powers. It could do so again.
As with most of Trump’s offenses, he started small to test what he could get away with, then scaled up. His Justice Department paid $5 million to Ashli Babbitt’s family from the Judgment Fund to settle a wrongful death suit, $1.25 million to Michael Flynn for a lawsuit that had been dismissed by a judge, and another million to Carter Page for a dismissed case. All compensation for personal servility, paid for by Americans.
Some Democrats want to salvage the Judgment Fund by barring Trump’s particular misuses while keeping the account open for a future administration. Instead, what if Congress did its job? It won’t, of course, unless the Court affirms that the Framers meant what they wrote: “No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law.”