The Obama administration move to purchase a prison in Illinois has generated outrage among Republican lawmakers, but there may not be much they can do to stop it.
Aides acknowledge that the federal Bureau of Prisons has the authority to make the purchase of the unused state prison in Thomson, Ill., but that it is highly unusual for the executive branch to make such a move over opposition from Congressional appropriators.
That’s because the spending chiefs sometimes make life more difficult for departments and agencies that go against their will, even if they have the legal authority to do it. House Appropriations Chairman Hal Rogers (R-Ky.) appears to be particularly upset by this particular purchase, and the House could attempt some corrective action during the post-election lame-duck session. But Senate Majority Whip Dick Durbin (D-Ill.) has championed the acquisition and would seek to stop any effort to derail it.
Illinois and Iowa lawmakers in both parties have backed the prison purchase because it has the potential to create jobs in both states. Sen. Chuck Grassley (R-Iowa) questioned the White House decision to move forward without the support of the Republicans in Congress but noted the facility would be a boon for the local economy in Clinton, Iowa, which sits on the Illinois-Iowa border and is about a 12-mile drive from the facility. Home developers told local media in Iowa that they expect a boom, too.
Reps. Don Manzullo (R-Ill.), Bobby Schilling (R-Ill.) and Dave Loebsack (D-Iowa) ultimately praised the move in a joint statement when it was announced.
“The bottom line is that this is a welcome development for our region, particularly those who have been struggling to find good jobs. Thomson Correctional Center has been sitting empty for 10 years, costing the residents of Illinois millions of dollars in upkeep and keeping many Illinoisans and Iowans out of work each year,” they said.
In a season when everything has political undertones, news of the prison purchase came Oct. 2, the same day that Republican vice presidential nominee Rep. Paul Ryan (Wis.) held a town hall in Clinton, the hometown of his wife, Janna.
Sen. Kay Bailey Hutchison, the ranking member on the Appropriations Subcommittee on Commerce, Justice and Science, says she opposed the request to transfer the funds from other Justice Department accounts needed to make the $165 million purchase from the state of Illinois.
“The decision by President Obama to purchase the Thomson Prison in Illinois is an unprecedented move that ignores the clear intent of Congress,” the Texas Republican said in a statement this week. “This expenditure has not been approved by Congress. It amounts to moving money from funds appropriated for other purposes.”
A Hutchison aide said today that there are no immediate plans to take further action against the prison purchase, however.
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.
Rep. Eric Swalwell, D-Calif., walks on Broadway after a Future Forum with young entrepreneurs in the Flatiron District of New York City, April 16, 2015. Reps. Steve Israel, D-N.Y., Seth Moulton, D-Mass., and Grace Meng, D-N.Y., also attended.