“We have been unable to identify any parallel . . . in the history of our nation in which Congress has intervened to prohibit the prosecution of particular persons or crimes.” So wrote Attorney General Eric Holder in a December 2010 letter addressed to the leadership of the Senate, in response to proposed congressional funding restrictions that would have forbidden the executive branch from using any appropriated funds to transfer non-American Guantanamo detainees held by the Department of Defense—Khalid Sheikh Mohammed in particular—to the United States. Those funding restrictions have since been signed into law on multiple occasions.

There is little doubt that these restrictions destroyed any hope the Obama Administration had of prosecuting the alleged 9/11 plotters in federal civilian court. What is in doubt, however, is whether Congress had the power to enact these restrictions in the first place. Congress’s actions have been labeled by the Attorney General as “dangerous precedent” and by the President as a “violat[ion] of separation of powers principles” under certain circumstances. Yet no legal scholarship has been published that analyzes whether Congress’s exercise of its purse power unconstitutionally infringed on either the President’s authority as commander-in-chief or the executive’s monopoly over the federal prosecution of named individuals. This Note aims to be the first voice on the issue.

Using both a separation of powers balancing analysis and a tripartite framework that builds on the work of Charles Tiefer, this Note concludes that while Congress has indeed stretched the permissible limits of its purse power in this instance, the legislature has not violated the Constitution. The analysis reveals, moreover, that Congress’s funding restrictions infringed less on the President’s military authority as commander-in-chief than on his prosecutorial authority. Ultimately, this Note also raises the question of whether Congress’s actions to effectively forbid the prosecution of named individuals in federal court, even if constitutional, are still bad policy.


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