Tuesday, August 09, 2005


Legal Question From a Reader

Bobby has posted this question in the comments. I thought it was worthy of its own post. Feel free to opine.

I've used [PACER] to follow . . . a waste disposal company's lawsuit against the U.S. Army Corps of Engineers. (Norton Environmental vs. U.S. Army Corp)

Digression - The company wants to build a landfill near us in Canton. The Army Corps has to approve anything that affects wetlands, which this landfill does. The local congressman, a vice chairman on the House Appropriations Committee, placed provisions in appropriation bills that prohibit the Army Corps from spending federal funds to review the landfill application.

A U.S. District judge in Akron, Ohio, ruled in May that the provisions are unconstitutional - they violate the equal protection clause because they singled out Norton. The judge ordered the Army Corps to resume review of the landfill application. The Justice Department has filed an appeal with the 6th Circuit. In its argument for a stay, which I read off Pacer, the department says that the judge is basically ordering Army Corps staff to spend federal funds that have not been appropriated by Congress, opening the staff to civil penalties.

Can the judge order Congress to appropriate the money?

Really interesting question, Bobby. As I understand it, Congress has appropriated money for the Army Corps. However, it has placed a limitation on how it can spend that money. A court has determined that the limitation is unconstitutional. If that decision is upheld, the Army Corps would be free to go ahead with its review of the landfill application. I gather that the Justice Department's position is that the Army Corps should be stayed from reviewing the landfill application while the appeal is pending, because if the decision is overturned, they will have spent the money without congressional authorization, which would subject them to civil penalties.

I'm not sure if your question "Can the judge order Congress to appropriate the money?" means "does the district court judge's decision amount to an order that congress appropriate the money and, if so, is that permissible?" or "can the judge now, in light of the Justice Department's argument turn around and order congress to appropriate the money for the purpose of reviewing the landfill application?"

Courts can't order Congress to affirmatively appropriate money - all they can do is interpret the law - i.e. determining the constitutionality of congressional acts and applying them to the facts of a particular case. More than that would violate separation of powers.

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