The purse as Congress’s tool and the executive’s temptation
In the excerpts, the power of the purse is treated as a defining attribute of the legislature in the American separation of powers. Bob Zadek calls it “one of the most powerful and most sacred tools that Congress has in the separation of powers,” adding that it is very important and always has been and should be, and that when the president crosses a line and assumes the power of the purse in any way, he has crossed a line for which he should be soundly criticized in some form or another Withholding Judgment on Impeachment with John Rothmann (2020).
The same episode supplies the concrete dispute that makes the abstraction legible. Zadek frames the issue as one of timing: money was appropriated by Congress, and the president has a duty to spend it, unless otherwise set forth in a statute, before the end of the fiscal year. On his account, a president who does not spend appropriated money until Wednesday has not been impeached for it; he may withhold it using timing, for a reason good or crummy, but so long as he spends the money before the end of the fiscal year, he has not upset the balance of powers. Guest John Rothmann rejects that framing for the case at hand, saying the GAO issued a statement saying the president broke the law, describing the GAO as a nonpartisan branch of government, and adding that once the whistleblower report became public, the funds were released. Rothmann characterizes the episode as a political action by a president who held up funds to try to get a favor from Ukraine, and observes that once the action was exposed, the money was released Withholding Judgment on Impeachment with John Rothmann (2020).
Rothmann also supplies the technical vocabulary: when Zadek says he wants to focus on the verb “withholding,” Rothmann replies that the technical term is impoundment Withholding Judgment on Impeachment with John Rothmann (2020).
Coercion through grants: the purse as a federal lever over states
A different use of the purse appears in the immigration episode, where the power is wielded not against the president but against governors, mayors and police chiefs. Zadek describes Janet Napolitano, whom he calls the police chief in chief, telling a governor that the federal government has decided what that governor’s police departments have to do and that the governor has no choice. He is careful to say that she and DHS do not threaten arrest; rather, the compulsion runs through money: if you do not do it, grants and other money will be pulled and you will be bled to death. Zadek calls this the coercive federal power of the purse, the threat to take away the allowance, and describes Napolitano as bullying a governor, police chiefs and mayors into doing federal bidding despite the fact that local governments and governors do not choose to do so Immigration Reform Is Broken (2011).
Guest Elise Foley disputes the mechanism while confirming the constraint. She says it is not exactly as Zadek describes: instead of threatening to withhold funding, the federal government says its partnership is with the FBI and that it is taking fingerprints from the FBI, so a locality that does not want to share fingerprints with DHS must stop sending fingerprints to the FBI — which would mean not catching fugitives, people running from the law, people using false names. Her conclusion is that it is not even a matter of saying you cannot opt out or else; the system is simply created so that it is impossible for localities to choose not to send their fingerprints to immigration enforcement Immigration Reform Is Broken (2011).
The episode also ties the purse to unfunded mandates: a section heading in the excerpt reads “The Economic Burden of Unfunded Mandates,” and Zadek’s final words before the excerpt breaks off are that Secure Communities has Immigration Reform Is Broken (2011).
Delegation, abdication, and the voters
In the elective-monarchy episode, Zadek asks whether Congress’s power of the purse offers solace. He poses the hypothetical of a Republican Senate controlling funding bills and asks whether Congress could fund or defund what has to be the will of Congress, and whether Congress has been complicit by delegating so much of its power — handing the president a broad statute and telling him to deal with the details, thereby abdicating its role as representing the people Has America Become an “Elective Monarchy”? (2014).
Guest Frank H. Buckley answers that Congress is elected by the people, so the question is ultimately what the people will stand for. He notes that Republicans had held the House for two years and could have used the power of the purse to block Obama; what that produced was the almost refusal to raise the debt ceiling in 2011, after which Republicans caved, giving a clean increase to the debt ceiling in January. Buckley’s reading is that Republicans stood firm in 2011, realized they had alienated the voters, and that the electorate seems happy with an imperious, king-like president — the sort of development that attracts rather than repels voters Has America Become an “Elective Monarchy”? (2014).
The same episode locates the purse within a longer history of executive discretion. Buckley traces the idea back perhaps to the 12th century and the “royal prerogative,” which Zadek glosses as being in favor of the king; Buckley says the same thing appears here as the power of the executive, the executive authority, which Zadek calls the non-enforcement power. Buckley argues the Framers hated the royal prerogative but that the executive must be given some slack, citing John Locke’s Second Treatise and the problem of laws that with hindsight should not be enforced, or laws that are unconstitutional and that one would not want the president to enforce. He offers same-sex marriage as an example: the president instructed the Department of Justice not to pursue litigation opposing same-sex marriage, and the Supreme Court backed him up. He also cites the broken Obamacare website rollout as a circumstance in which the president might sensibly say the enforcement must wait until the web design is fixed. Buckley’s complaint is that this has been taken to the next level by Obama — that George Bush had his signing statements, that Elizabeth Drew in the New York Review of Books detected the whiff of fascism when Bush reserved the power of the presidency with respect to military matters, and that with immigration we are now seeing it at an exponentially larger level. Congress refused to pass the DREAM Act to regularize young undocumented people, so Obama did it by himself; Buckley adds that there are suggestions Obama is thinking of somehow giving green cards to undocumented people, which would be extraordinary, and asks what the congressional election was about if that happened Has America Become an “Elective Monarchy”? (2014).
Neither purse nor sword: the judiciary
The Scalia episode supplies the phrase that anchors the concept’s limits. Zadek says the Supreme Court was historically the least powerful branch, invoking Alexander Hamilton in the Federalist as saying the Supreme Court is powerless, with no money except that which is given to it, no way to enforce its rulings, no army. Gail Heriot completes the thought: neither the power of the purse nor the sword. Zadek thanks her for the quote, says he thinks it was from Hamilton but is not certain, and Heriot agrees she thinks he is right Gail Heriot on the Significance of Justice Scalia’s Passing (2016).
Zadek then argues that the Supreme Court has assumed profound control over life in America despite being unelected, and raises a structural fix: the number of justices can be changed by an act of Congress and has often been changed. He states that the original number was five, set by Congress, not by the Constitution, in 1801; that it was quickly raised from five to seven and then from seven to nine; that it has been as much as ten and as low as eight; and that the New Deal court-packing attempt to raise it to fifteen failed politically. Heriot responds that raising the number to fifteen would cut down on 5-4 decisions and produce some 7-8 decisions, that the expansion would have to be staggered very slowly so that no president would get the benefit of it, and that FDR’s proposal was quite outrageous — a bald power grab, meant to intimidate, adding a justice for every justice aged 70 and a half or more, which probably did intimidate, with Justice Roberts changing his vote on New Deal legislation. Zadek notes that this was known as a “switch in time that saved nine” Gail Heriot on the Significance of Justice Scalia’s Passing (2016).
Across episodes: what changed
The topic recurs across four episodes, and the treatment shifts with the target. In 2011 the power of the purse is the federal government’s coercive lever over states and localities, with Zadek pressing the charge and Elise Foley disputing the mechanism Immigration Reform Is Broken (2011). In 2014 the question becomes whether Congress can use the purse against a president who governs by discretion, with Zadek raising the possibility and Frank H. Buckley answering that the voters, not the purse, are the binding constraint Has America Become an “Elective Monarchy”? (2014). In 2016 the purse appears only as what the judiciary lacks, in Gail Heriot’s completion of the Hamilton formulation Gail Heriot on the Significance of Justice Scalia’s Passing (2016). In 2020 the purse returns as the standard against which presidential impoundment is measured, with Zadek defending a timing-based view of the spending duty and John Rothmann countering with the GAO finding and the release of the funds Withholding Judgment on Impeachment with John Rothmann (2020). The later episodes do not so much revise the earlier ones as relocate the same question — who controls the money — from the federal-state relationship to the president-Congress relationship.
What the sources do not cover
The excerpts do not state the name of the statute at issue in the 2020 impeachment discussion, nor the specific appropriation, nor which article of the Constitution the GAO finding turned on. They do not state the holding of any case, the name of the DREAM Act as enacted legislation, or the outcome of the 2014 election that Zadek anticipates. The 2011 excerpt breaks off mid-sentence on unfunded mandates, and the 2014 excerpt breaks off mid-sentence in Buckley’s reply, so neither line of argument is carried to a conclusion in the sources.