Topic: Power of Congress to Appropriate Money
Senator: Brownback
Date: SEPTEMBER 14, 2005
Contents
BROWNBACK: I'm going to talk with you on another issue and just get your opinion of the Constitution. And then I'm going to frame it. You would agree, under the Constitution, that the legislative bodies, and particularly under the U.S. Constitution, the Congress has the power to appropriate money?
ROBERTS: Yes. The framers regarded that as the basic legislative power, the power of the purse.
BROWNBACK: And that that power is not given to the judiciary, it is given to the legislative branch of government?
ROBERTS: Yes. Alexander Hamilton, in making his point -- I think it was Hamilton -- that this was the least dangerous branch, emphasized that the courts have neither the power of the sword nor the power of the purse.
BROWNBACK: I want to point out to you, and this is happening in state judiciaries, this is happening and being considered now in the U.S. federal courts -- the court's role in appropriating money.
You'll have in front of you a case, the Solomon amendment that was considered here.
This was a recent 3rd Circuit of Appeals case. Struck down the Solomon amendment on constitutional grounds.
Solomon amendment passed by Congress -- Jerry Solomon, long-term member of Congress, wonderful gentleman, since passed away -- had conditioned university receipts of federal funds on the universities granting equal access to the military for purposes of recruiting students.
BROWNBACK: So he said, you know, you need to allow military personnel access if you want to receive federal funds.
It was considered by Congress, was passed. Third Circuit Court struck down the Solomon amendment on constitutional grounds. The decision's been appealed to you.
I obviously don't want you to declare your position on this. I would ask you, if you can state on this, the obvious one first. We have the role, the power of the purse is in the Congress, not in the judiciary.
May the Congress attach conditions to the receipt of federal funds?
ROBERTS: Well, Congress historically has done that. The spending clause power, for example, South Dakota against Dole, said that if you accept federal highway funds you have to raise the drinking age to 21. And that was upheld by the Supreme Court. So, certainly as a general proposition, the Congress has that authority.
I considered a case involving a waiver of sovereign immunity. The condition on the receipt of federal funds was that Washington's Metro system waive its sovereign immunity with respect to disability claims. And by a 2-1 vote, we upheld that exercise of authority under the spending clause.
BROWNBACK: Well, the Solomon amendment will be in front of you if you're confirmed, and obviously you can't comment on it.
It's just that if the courts start appropriating money through this route, the rub between the systems and the branches of government I think will be absolutely extraordinary.
And there will become more and more innovative ways that the Congress will try to find to limit the judiciary. And it's not healthy for the system, and it's certainly not healthy for the judiciary if it starts into the business -- goes further into the business of appropriating funds.
BROWNBACK: And it bleeds down through the system. It's not just then in the U.S. Supreme Court, it goes through the state court systems as well.
And I would hope that that right of the Congress would be respected with adequate judicial restraint -- as you noted with me this morning, that being the major check on the judiciary.
Well, I think we can limit what the judiciary can review under the Constitution.
Contents
Prev
Next
Last
