Despite that outrage, the case demonstrates the limitations of Congress’ power of the purse. Experts agree the $165 million purchase is not subject to the Antideficiency Act, a federal law that bars the executive branch from making expenditures and obligating funds without having the money appropriated by Congress. In Thomson’s case, the money will be drawn from other accounts at the Justice Department through what is known as “reprogramming.”
Allen Schick, a University of Maryland professor and former senior specialist at the Congressional Research Service who studies budget policy, said the move to buy the prison will “test the waters of what is Congress’ power to reprogram.”
Schick says that different committees and subcommittees have different standards and expectations in handling reprogramming requests.
Jonathan Turley, a left-leaning constitutional law professor at George Washington University, said that the matter highlights weakness in the Antideficiency Act, since many discretionary funds are “only loosely committed in the federal government,” which allows for these shifts.
“They certainly can defend this in court if it ever could be challenged,” Turley said.
Rep. Frank Wolf (R-Va.), chairman of the House subcommittee, has been among the most vocal in opposition. He says he believes the Obama administration wants to use the Illinois facility to house individuals currently detained at Guantánamo Bay, Cuba, despite statements from Attorney General Eric Holder to the contrary. Holder has very little credibility among House Republicans, an aide explained. He has been widely criticized by the GOP for the Justice Department’s handling of a gun-running program known as “Fast and Furious” and subsequent investigations.
An Illinois court filing related to the transfer of the facility says it is needed to help “provide humane and secure confinement of individuals held under authority of any Act of Congress, and such other persons as in the opinion of the Attorney General of the United States are proper subjects for confinement in such institutions.”
The purchase of Thomson was originally spurred by Democrats looking for a place to house prisoners from the war on terror who are currently confined at Guantánamo Bay. But Congress has repeatedly barred the Obama administration from transferring those prisoners.
Still, Republicans suggest the prison purchase may someday open the door to terrorist detainees if current restrictions expire.
House Appropriators do have a variety of tools with which to retaliate, including giving a “slap on the wrist” to the agencies involved through report language in next year’s spending bill, Schick says.
He does not expect anyone to go much further and actually use a policy rider to block the use of funds to actually operate the prison after the purchase is completed. “I doubt they will do it in this case,” Schick said.
Durbin, a member of the Senate Appropriations Committee, would oppose any move to defund the prison either in the lame-duck session or next year, an aide said.