DOJ appropriations/Separation of powers

[John Noble]

Last week in this thread, I think it was Prof. Tribe who noted that DOJ
stands in the same position as other federal agencies with respect to
Congress' uncontroverted power to define the scope of their authority and
appropriate their funding, and that it was in any event a constitutional
concern when Congress targets specific agency actions. It occured to me at
the time that it would be necessary to distinguish between agency
enforcement activities, adjudications and rulemakings -- that dictating the
abandonment of an administrative adjudication was most problematic,
dictating the abandonment of a rulemaking most obviously appropriate, and
dictating the abandonment of an enforcement action falling somewhere in
between. The issue is highlighted by an item in today's (10/10) Washington
Post:

http://www.washingtonpost.com/wp-dyn/articles/A48684-2000Oct10.html

It reports an amendment to the Department of Agriculture appropriations
bill, which would preclude the department from spending any funds in the
coming fiscal year "to issue a notice of proposed rulemaking, to promulgate
a proposed rule, or to otherwise change or modify the definition of
'animal' in existing regulations pursuant to the Animal Welfare Act." The
amendment was filed following an out of court settlement of a suit brought
by anti-vivisectionists arguing that USDA has unlawfully failed to
promulgate rules regarding the experimental use of mice, rats and birds in
accordance with the Animal Welfare Act. USDA apparently settled after
concluding that it could not defend the regulatory distinction between
monkeys and rats.

The Post quotes a USDA spokesman as saying that "Congress certainly has the
right to enact that kind of a condition on spending." Does it? Assuming the
settlement is in the form of a consent judgment entered by the Court, can
Congress prohibit the use of appropriated funds to satisfy the judgment? I
assume it's clear that Congress could amend the definition of "animal" in
the Animal Welfare Act to exclude rats without creating equal protection
problems (that's a joke), but can it control agency compliance with a
judicial construction of the Act as written? Is the distinction between a
consent judgment and an adverse judgment of any significance?

John Noble
Not a conlawprof
You're off the record -- at least my record