Does Congress have the authority to pass law blocking the Department of Justice from prosecuting baby rapers, under the fictional BIB Act (“Babyrape is Bad”)? Even in this absurd case, the answer would seem to be “yes”. Congress has the constitutional authority to pass law that prevents an executive agency from punishing behavior, even unconstitutional behavior. There is no precedent of judicial review that would find such a Congressional restriction to be unenforceable, regardless of how loathesome.

Let’s say radio operators had fallen into the practice of importing indentured servants from Africa in order to run radio towers. The FCC was considering some rules to discourage this practice. Congress then decided to use the power of the purse (in the form of some type of “amendment”) to discourage the FCC from enacting the proposed rules.

Okay, under that hypothetical, would it be accurate to say the following:

“This amendment is a blatantly unconstitutional attempt to assert Congressional control of an executive function. They try to get around this by controlling “expenditures,” and I certainly don’t know the Supreme Court holdings on such approaches, but it seems to me that controlling purse strings is tantamount to controlling rulemaking.”

I don’t know if this is the type of thing that he is getting at, but maybe . . . Once you give some measure of control to a government agency, it may be unConstitutional to specifically prevent it from policing its balliwick for Constitutional violations.