The Appropriations Clause: A History of the Constitution’s (As of Yet) Underused Clause.

“No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law; and a regular Statement and Account of the Receipts and Expenditures of all public Money shall be published from time to time.”  ~ARTICLE I, SECTION 9, CLAUSE 7, UNITED STATES CONSTITUTION

 

Table of Contents

I. Introduction
    A. Appropriations Clause
    B. Permanent and Indefinite Appropriations
    C. Statement and Account Clause
II. Legislative and Judicial History
    A. Federalist Papers and Drafting the Constitution
    B. Early Judicial Action
    C. The 20th Century
VIII. The Current Judicial Climate
    A. Role of the Judiciary
    B. Standing
    C. Political Question
    D. The Government Accountability Office and the Comptroller General
XIII. Appropriations and the Executive Branch
XIV. Conclusions
XV. About Us

I. Introduction

 

The Founding Fathers envisioned a government of checks and balances, and entrusted the ‘Power of the Purse’ to the legislative branch. One vital part to that separation of powers is the Appropriations and Statement and Account Clauses of the Constitution, found in Article I, Section 9, Clause 7 of the Constitution. It is generally thought of as containing two provisions: the Appropriations Clause, and the Statement and Account clause. Together, they form a key part of Congress’s ‘Power of the Purse,’ and establish Congress as the primary guardian of the federal government’s finances. (Gary Kepplinger, The Heritage Guide to the Constitution: Appropriations Clause.)

Madison emphasized the legislative power of the purse in the Federalist Papers by writing the the “power over the purse may, in fact, be regarded as the most complete and effectual weapon with which any constitution can arm the immediate representatives of the people.” (Federalist No. 58).

    A. Appropriations Clause

 

Speaking of the ‘Power of the Purse’ in relation to the Appropriations Clause is somewhat misleading, as the Clause is not a direct grant of power. Instead it is a restriction on the power of the other branches of government that “affirmatively obligates Congress to exercise a power already in its possession” (Kate Stith, Congress’ Power of the Purse, Jan 1, 1988 at p1348) courtesy of the Taxing and Spending Clause. (Article I, Section 8, Clause 1.)1 In essence, it forbids the other branches of government from spending any money not appropriated by the legislative branch, while the actual affirmative power to control federal funds comes from outside the Appropriation Clause. (id.)

It is supplemented by various framework Acts passed by Congress, such as the Anti-Deficiency Act (31 U.S.C. § 1341) and the Miscellaneous Receipts Statute (31 U.S.C. § 3302). (Kate Stith, Congress’ Power of the Purse, Jan 1, 1988 at p1348). These framework acts fill in the gaps of the Appropriations Clause and direct its function in practice. For instance, the Miscellaneous Receipts Act obligates any agent of the United States to deposit any money received from any source into the Treasury, which ensures that the other branches of government don’t trespass on the legislative branch’s domain of taxing or otherwise raising funds. (id.) The Anti-Deficiency Act then reiterates and adds detail to the Appropriations clause by forbidding the expenditure of public funds without legislative appropriation, and forbidding federal agencies from exceeding their appropriated funds. (id.)

Apart from funding new acts, Congress can and does use the Appropriations Clause and its framework acts to adjust, suspend, or repeal existing laws, simply by adjusting the amount of funding the laws receive, or placing restrictions on the use of such funds. (United States v. Dickerson 310 US 544 (1940); Robertson v. Seattle Audubon Society 503 US 429 (1992); United States v. Bean 537 US 71 (2002).).

    B. Permanent and Indefinite Appropriations

 

Unfortunately, over the years Congress has legislated in a manner that ultimately weakens the restrictions of the Appropriations Clause, primarily through appropriations for specific bills that are permanent in duration (see 31 U.S. Code § 1305, (listing miscellaneous permanent appropriations) and often permanent and indefinite in scope until Congress affirmatively revisits the matter. Examples include paying the interest on the national debt (31 U.S. Code § 3123), various housing and rent subsidies,2 the federal Judgement Fund (31 U.S.C. § 1304), and federal reserve banks in their capacity as fiscal agents of the United States (31 U.S. Code § 3302(f)).

A permanent appropriation is a “standing” appropriation. (Principles of Federal Appropriations Law: Fourth Edition, Chapter 2, p13) Once a permanent appropriation is made, it does not require further authorization from Congress as long as it is used for its specified purpose. (id.) An indefinite appropriation has no express limitation on the amount of money appropriated. (id.) While such appropriations are not always a true ‘blank check’ they come very close. The amount may be determined at a later date or, in the cases of interest here, in “such sums as may be necessary.” (id). Some require the funds needed to be set each year, while others simply draw from the Treasury.

This essentially means that Congress can take a specific issue and pass a bill saying, you can have an amount of money ranging from “we’ll set a budget each year” to “give us a budget estimate” and this appropriation doesn’t end until we say it does. In other words, Congress has a tendency to write and sign different blank checks to various agencies while technically retaining the authority to take the checks back. It’s like when you subscribe to a magazine, or sign up for a gym membership, and then forget to cancel your subscription, except on a national scale. That is a bit different from the separation of powers the Appropriation Clause envisions, with Congress as the watchful guardian of the public’s finances.

    C. Statement and Account Clause

 

If the Appropriations Clause is the requirement that Congress approve spending, the Statement and Account Provision is the requirement that they tell us how their approved money was spent. Drawn from the same sentence of the Constitution as the above-discussed Appropriations Clause, the Statement and Account Clause places a crucially important mandate on Congress–to account to the public for how, where, and by what authority the government spends money. (Katherine Clark Harris, The Statement and Account Clause: A Forgotten Constitutional Mandate for Federal Reporting, 2013). The clause creates a requirement that the government produce an account of receipts and expenditures “from time to time.” (U.S. Const Art. 1, Sec 9, Clause 7). These reports must be made regularly (not the most specific requirement) and must include all public money. ( see (Katherine Clark Harris, The Statement and Account Clause: A Forgotten Constitutional Mandate for Federal Reporting, 2013, at pg 510). Scholarly interpretation of “regularly” suggests that the duration between these reports must be relatively short–more than annually but still not too far apart. (id. at 511). However, there is essentially no judicial interpretation of what is an acceptable period.

This transparency in government finances is a crucially important constitutional requirement. As the Supreme Court has recognized in Brock v. Pierce County , “the protection of the public fisc is a matter that is of interest to every citizen.”‘ ( Brock v. Pierce County, 476 US 253 (1986). Ensuring the legitimacy of government financial actions is central to a functioning democracy. Unfortunately, there are an enormous numbers of loopholes and discrepancies in the government Statement and Accounting practices of today–to the tune of trillions of dollars. (DOD and HUD Missing Money: Supporting Documentation) This is far from ideal for a Constitutional clause with the goals of ensuring transparency, preventing corruption, and maintaining oversight over the government’s financial state of affairs. The clause also, like the Appropriations Clause, enforces the balance of power between government branches by requiring Congress to actively oversee how the executive branch makes use of funds. ( see (Katherine Clark Harris, The Statement and Account Clause: A Forgotten Constitutional Mandate for Federal Reporting, 2013).

Also like the Appropriations Clause, the Statement and Account Clause is not a self-executing provision and essentially just relies on Congress to implement the clause through legislation. (see id. at 515). This originally involved agencies submitting budget requests to the Treasury every year which were recorded in something called the Book of Estimates.(see id. at 519). This book included detailed item by item requests from agencies and all the revenue sent to the Treasury. It was a mess. Nobody had the same format or managed their accounting in the same way and, once the book was put together, the Secretary of the Treasury would just send the incomprehensible pile of raw data to Congress with no review or changes whatsoever. Congress passed amendments to the statutes discussing how the Statements and Accounting Clause obligations were handled in 1875 which formalized the Book of Estimates as the official means of satisfying the Statements and Accounting Clause. (see id.)

This essentially useless practice continued until the accounting issues of World War I led Congress to pass the Accounting Act of 1921 (Pub.L. 67–13, 42 Stat. 20, enacted June 10, 1921)–creating a single unified cash budget for the U.S. government. This act required the President to make a yearly budget proposal (the President’s Budget)and created an Executive Agency, the Bureau of the Budget, to help with this. (see id.). This obviously created a strange situation, the Executive branch was handling the process designed in part to allow the Legislative branch to check the Executive. (see id.). The Act did create the Government Accounting Office, changed to the Government Accountability Office (GAO) in 2004 by the GAO Human Capital Reform Act, as a congressional agency to audit the Executive’s handling of the accounting. (see S.1522). However, the GAO had no actual role in producing the President’s Budget. They only reviewed it. Another issue with the President’s Budget is that it was primarily focused on creating a negotiating tool for appropriations discussions rather than a transparent accounting for public consumption. ( see (Katherine Clark Harris, The Statement and Account Clause: A Forgotten Constitutional Mandate for Federal Reporting, 2013).

In 1974, the Congressional Budget Office was created to make an independent congressional budget (the Economic Outlook) and improve budget oversight. However, the process had many of the same issues as the 1921 Act. (see id. at 525). President Johnson himself said that “[t]he traditional administrative budget is becoming an increasingly less complete and less reliable measure of the Government’s activities and their economic impact.” (see id.).

Today, the obligations of the Statement and Accounting Clause are fulfilled by the President’s Budget, the Economic Outlook, and one more reporting tool–the Consolidated Financial Report issued by the Treasury. (see id.). Even all together, there are a number of issues with these reporting mechanisms. The President’s Budget, the Executive branch’s crack at the Legislative branch’s duty to oversee the Executive, is still the most widely known of the reports. (see id. at 526). The accounting has enormous gaps as mentioned above. These include, but are far from limited to Social Security trusts, defense spending and the accounting of quite a few government related entities such as the U.S. Postal Service (which currently owes around $11B to the government) and the businesses in which the government owns a tremendous amount of stock after the bailouts of the last decade–Fannie Mae and Freddie Mac for instance. (see id. at 527). These are just a few examples from among the hundreds and hundreds of government related entities with no accounting in any of the government reporting tools discussed above.

These holes in reporting, along with a number of statutes limiting the financial reporting requirements of the government, have led many to question whether the government is fulfilling its constitutional obligations under the Statements and Accounting Clause.

II. Legislative and Judicial History

    A. Federalist Papers and Drafting the Constitution

 

The Appropriations Clause was a very early addition to the Constitution. (Gary Kepplinger, The Heritage Guide to the Constitution: Appropriations Clause.) The original Virginia Plan, essentially a sort of first draft of the Constitution prepared before the Constitutional Convention, already included plans to put appropriation of funds within the powers of the Legislature. This original plan was much more restrictive than what ultimately came out of the Constitutional Convention, however it shared the goal of providing a check of power against the Executive to the Legislative branch. The idea is that the Executive wields incredible powers, while the Legislative branch holds the resources to act on those powers. It’s no surprise that what debate there was over the Appropriations Clause at the Constitutional Convention was focused on the roles of the House and the Senate in this power and making sure that the power was an effective check on the Executive. The former issue was primarily a debate over how smaller states–overrepresented in the Senate–would still have power over appropriation bills originating in the House. The latter was essentially a debate over ensuring the check was sufficiently powerful, the framers of the Constitution were unanimous in their belief that this sort of check on the Executive was incredibly important. (see id.).

The Statement and Account provisions were introduced by George Mason in the last days of the convention. Initially, the proposal included an annual reporting requirement. However, this was reduced to “time to time” in order to ensure accurate and clear reporting in a form useful to the public without placing too onerous a task on Congress. The goal of the framers was to allow the public access to a clear understanding of how and why “all public money” was spent by the government. There was no debate over the scope of the reporting, only its frequency. Constitutional Framer James McHenry explained the lack of debate, saying “[the People who give their Money ought to know in what manner it is expended” There were some objections to the “time to time” phrasing, suggesting that this level of discretion may lead to secrecy. This sort of secrecy was something the Framers sought to avoid. Even though they appreciated the importance of secrecy in some “military operations and foreign negotiations” they intentionally did not include any exceptions in the reporting requirements. Even proposals to delay publication of such financial moves were rejected by the Framers–favoring transparency over security concerns. (see id.).

    B. Early Judicial Action

 

The goals of the Appropriations Clause and the Statement and Account Clause are to create a check on the Executive and provide transparency in government spending. (see id.). However, one sentence is not a lot to go on for such a broad power. The powers are not self-executing and, as discussed above, are generally put into force through statute. Even then, the boundaries and limits of this power have required some clarification in the courts over time.

The earliest of these rulings provided an enormous amount of leeway to Congress in deciding exactly what these Constitutional provisions mean and how they are to be enacted. In 1880, the Supreme Court ruled on something known as Hart’s Case. (see Hart’s Case, 16 Ct. Cl.459, 484 (1880)). In this case, the Court determined that Congress has complete power to execute and define the duties of both the Appropriations Clause and the Statement and Account Clause. (see id.). While the case did not specifically discuss, the Statement and Account Clause, referring instead to Article I, Section 9, Clause 7 of the Constitution (the source of both the Appropriations Clause and Statement and Account Clause), it has since been relied on as creating full discretion in implementing the Statement and Account Clause and delegating the duties and powers therein.

Early courts also defined how appropriations work. The process is quite simple, all that is necessary is for Congress to–usually via a statute–enact a law directing monies to be paid from a specific fund or from the Treasury. An appropriation is “per se nothing more than the legislative authorization prescribed by the Constitution for money to be paid out at the Treasury.” ( see Campagna v. United States, 26 Ct. Cl. 316, 317 (1891)).

    C. The 20th Century

 

As time has progressed, Courts have also recognized the goal of the Appropriations Clause. In 1937, the Supreme Court noted the importance of the rule as a check on the Executive branch saying that the Appropriations Clause “was intended as a restriction upon the disbursing authority of the Executive department.” (Cincinnati Soap Co. v. United States, 301 US 308 (1937)). The courts have also continued to support the premise that the Appropriations Clause means that all spending of public funds must be “authorized by Congress, not that public funds may be expended unless prohibited by Congress.” (United States v. MacCollom, 426 US 317 (1976)). This ruling enforced the strength of the Appropriations Clause as a check.

However, at the same time as the courts have emphasized the strength and importance of the Appropriations Clause, they have allowed Congress to approach the Appropriations and Statement and Account Clause reporting requirements with as strong or as lax a hand as they see fit. The courts have established that Congress may adopt “any reporting and accounting [Congress] considers appropriate in the public interest.” (United States v. Richardson, 418 U.S. 166 (1974).). Under the Appropriations Clause, Congress has quite a bit of leeway in how it may enact and condition an appropriation–although the courts have outlined some limits on the conditions which are allowable. (see, e.g., South Dakota v. Dole, 483 U.S. 203 (1987) (addressing Congress’s ability to impose conditions on the use of federal grants and noting that actions taken must not be prohibited by the Constitution).)

The Statement and Account Clause has no written or ruled on exemptions, requiring transparency from the government. However, there is very little in the way of rulings which limit how Congress can satisfy its reporting requirement, the history of the Clause at the Constitutional Convention implies a premium on transparency which may require Congress not to exclude anything from its reports. After all, the idea of exemptions to the reporting requirement was specifically rejected at the Constitutional Convention. ( see (Katherine Clark Harris, The Statement and Account Clause: A Forgotten Constitutional Mandate for Federal Reporting, 2013 at 536).

This thought has led some to challenge statutes undermining the Statement and Account Clause, albeit with little success. The Supreme Court heard a case dealing with the 1949 CIA Act (United States v. Richardson, 418 U.S. 166 (1974).). The lawsuit was challenging the fact that the CIA Act exempted CIA activities from federal reporting requirements. (50 U.S.C. § 403a). The suit argued that this bypassed the reporting obligations placed on Congress by the Statement and Account Clause. The Supreme Court, in a five-to-four split decision, dismissed the case entirely based on lack of standing. The theory behind the ruling was that Congress had complete power to define exactly how the reporting requirements of the Statement and Account Clause work. (see United States v. Richardson, 418 U.S. 166 (1974).).

Just a few years later, another case was brought challenging the CIA Act on the same grounds. (Harrington v. Bush 553 F.2d. 190 (1977)). The case argued that removing information on national security spending substantially reduced the quality of the reports as a transparent spending accounting for the public. This case didn’t even make it as far as the Supreme Court, or any court beyond the D.C. Circuit court as it was immediately dismissed on the same grounds as Richardson and affirmed on appeal. (see id.).

There’s certainly something behind these cases, if transparency with no exceptions was the goal of the clause it is an odd position that Congress can make any exceptions they want. However, no court has ever granted standing in a case challenging reporting exceptions–the list of which has only grown since the CIA Act. Similarly, no court has supported standing to sue over shifting appropriations power to the executive–even though the goal of the clause has repeatedly been ruled and discussed as separation of powers between the Legislative and Executive branch. These standing rulings rely quite a bit on the sheer amount of discretion provided to Congress regarding the Appropriations Clause and Statement and Account Clause.

III. The Current Judicial Climate

 

The current judicial climate is generally hostile to cases regarding separation of powers issues such as the Appropriation clause. As can be seen above, the courts generally defer to Congress in its application of appropriations, and as discussed below, find every excuse possible to dismiss or otherwise settle such cases on other grounds.

    A. Role of the Judiciary

 

The judiciary generally has the power to interpret and safeguard the Constitution. However, courts have a tendency to avoid ruling on the constitutional adequacy of Congressional acts of appropriation in the context of separation of powers. (Bob Smith and Sarah Miller, The Constitutionality of Executive Spending Powers at p32). Whenever possible, they tend to either find the plaintiffs’ standing insufficient to bring suit, or deem the issue a political question best solved by Congress. (id.) Because of this, binding judicial decisions regarding the Appropriations clause are few and far between. (id.)

The Supreme Court has, however, issued some broader rulings relating to Congressional appropriations. First, the Court insists that Congress clearly articulate its purposes when it applies appropriations as a tool to change other provisions of law. (see United States v. Will, 449 U.S. 200 (1980).) Those purposes need not be wholly rational or appropriate, merely made clear. (id.)

Second, Congress may not violate other provisions or protections of the Constitution or Bill of Rights through appropriations. For instance, they may not pass bills of attainder (see United States v. Lovett, 328 U.S. 303 (1946)), or violate an individual’s First Amendment rights. (see Legal Service Corp. v. Velasquez, 531 U.S. 533 (2001)). These issues, however, do not turn on the appropriations themselves, so much as what was done with said appropriations.

    B. Standing

 

Determining the standing of the parties is the process of determining whether or not a party even has the right to sue based on suffering some hardship or injury. In order to have standing, a party must show that they, personally, have suffered an injury the court is capable of redressing. For instance, in there is a great deal of judicial history denying standing in various environmental lawsuits,3 where there is no substantive harm to an individual plaintiff’s interests except for the existence of a law or government project they personally disapprove of. Instead, the challenging party must show “the party seeking review be himself among the injured, for it is this requirement that gives a litigant a direct stake in the controversy and prevents the judicial process from becoming no more than a vehicle for the vindication of the value interests of concerned bystanders.” (United States v. Students Challenging Regulatory Agency Procedures, 412 U.S. 669 at 687 (1973) (citing Sierra Club v. Morton, 405 U.S. 727 (1971)).

This poses some difficulty when separation of powers disputes come before the courts, because the ‘harms’ suffered are often intangible and vague. (Bob Smith and Sarah Miller, The Constitutionality of Executive Spending Powers at 33). This difficulty exists no matter if a taxpayer is the plaintiff, or if members of Congress itself sue. Plaintiffs in separation of powers cases need to show that (1) they, personally, have been harmed, and (2) some compelling reason why the problem shouldn’t be solved politically, by the election of new officials or passage of new acts.

For instance, in Raines v. Byrd, 521 U.S. 811 (1997), the plaintiffs were a group of Congressmen who claimed they were injured by the Line Item Veto Act because it gave more power to the executive branch and ‘diluted’ the power of their own votes. However, the Court found this harm was “wholly abstract and widely dispersed.” (id.) Courts have followed this ruling in subsequent cases, and even go so far as to emphasize that legislators already have political tools to remedy their grievances, such as by passing another bill, and the interference of the courts is unnecessary. (see Campbell v. Clinton, 203 F.3d 10 (D.C. Cir. 2000)). The Court will even go so far as to dismiss cases by Congressmen on the grounds of standing where other branches, like the executive, spend funds in violation of appropriation conditions (Bob Smith and Sarah Miller, The Constitutionality of Executive Spending Powers at 38 (citing Sanchez-Espinoza v Reagan, 248 U.S. App. D.C. 146, 210 (D.C. Cir. 1985). (where the executive covertly supported the Contras in violation of the Boland Amendment).)

Taxpayers face even greater barriers to their claims. Even though a taxpayer lacks the same political tools members of Congress do, the courts are nonetheless hostile to any sort of taxpayer standing. Taxpayers must “establish a nexus between that status and the precise nature of the constitutional infringement alleged.” (Flast v. Cohen, 392 U.S. 83, 102 – 03 (1968)). Proving this nexus is difficult, even when the allegations are that constitutionally mandated statements and accounts are not being given to taxpayers, as is seen in the budgets of national security agencies. ( see United States v. Richardson, 418 U.S. 166 (1974).) This hostility makes it very unlikely any taxpayer(s) would succeed in proving standing to sue over separation of powers issues, such as the Appropriations Clause. (Bob Smith and Sarah Miller, The Constitutionality of Executive Spending Powers at 36.).

This is not to say it is impossible for an individual to prove standing resulting from injury by federal spending programs. (Kate Stith, Congress’ Power of the Purse, Jan 1, 1988 at p1387, fn 218). Cases that successfully prove standing have a concrete injury in common, from challenging the results of failed federal bids4 to direct harm to an individual’s use and enjoyment of scenic resources.5 However, succeeding in proving standing only qualifies a separation of powers case to to challenge the next hurdle; whether or not the controversy is a political question.

    C. Political Question

 

The second hurdle cases regarding separation of powers such as those commonly involved in an Appropriations Clause case must face is the tendency of courts to declare such cases a ‘political question.’ Political question doctrine essentially means “that in order to preserve the independence of branches essential to the separation of powers, the judiciary must refrain from deciding cases that would force it to speak on inherently political matters that are ordinarily the purview of the political branches.” (Bob Smith and Sarah Miller, The Constitutionality of Executive Spending Powers at 36). This doctrine was laid out in 1803, in one of the most foundational cases the Supreme Court has heard, Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803). There, the Court very clearly delineated what types of controversies the courts should and should not hear, writing “[q]uestions, in their nature political, or which are, by the Constitution and laws, submitted to the executive can never be made in this court.” (id. at 170). Ever since, the Court has consistently erred on the side of caution in situations that do not rise to a genuine political impasse. (see eg. Goldwater v. Carter, 444 U.S. 996, 997 (1979).).

In general, there are six situations where the courts will declare a controversy as a political question:

“[1] a textually demonstrable constitutional commitment of the issue to a coordinate political department; or
[2] a lack of judicially discoverable and manageable standards for resolving it; or
[3] the impossibility of deciding without an initial policy determination of a kind clearly for non judicial discretion; or
[4] the impossibility of a court’s undertaking independent resolution without expressing lack of the respect due coordinate branches of government; or
[5] an unusual need for unquestioning adherence to a political decision already made; or
[6] the potentiality of embarrassment from multifarious pronouncements by various departments on one question.” (Baker v. Carr, 369 U.S. 186, at 217 (1962).)

If any of these factors are present in a case, the courts will declare it non-justiciable as a political question. Separation of powers issues almost always implicate the political question doctrine, often invoking more than one of the above factors. Not only does the judicial branch repeated explain they are not suited to analyzing and enforcing issues of budgeting and accounting (id.), but the nature of separation of powers cases usually involves issues that are already textually committed to a political department.

Examples of this include the case of Sanchez-Espinoza discussed above, where the Court, in addition to dismissing it on standings grounds, stated the issue was also a non-justiciable political question. (see Sanchez-Espinoza v Reagan, 248 U.S. App. D.C. 146, 210 (D.C. Cir. 1985). The division of war powers between the executive and legislative, as discussed below, also tends to declared a political question.

However, as with standing, there are situations where the courts are willing to entertain highly political issues. For instance, where the the questions primarily turns on the interpretation of a statute, this gives the court legal standards they can apply to an issue purely from the statute in question, without implicating a political question.6

    D. The Government Accountability Office and the Comptroller General

 

The GAO has some auditing powers as discussed above, and is sometimes considered to be a potential solution to the issues inherent in Congress’s handling of Statement and Account duties. ( see Katherine Clark Harris, The Statement and Account Clause: A Forgotten Constitutional Mandate for Federal Reporting, 2013 at 540). Further, it has historically received some deference from the courts in regards to GAO determinations. Unfortunately, the Supreme Court’s ruling in Bowsher v. Synar, 478 U.S. 714 (1986) cast aside some of that deference, and impairs much of the GAO’s ability to function as an enforcer of appropriations. In Bowsher, the GAO was attempting to enforce a budget deficit control act, and both individual Congressmen and the National Treasury Employees Union filed suit challenging the constitutionality of the law. (see id.)

The Court found that because the Comptroller General could be removed from the position by Congress, the position could not perform duties independently and was subservient to Congress. (id. At 727-728), and therefore could not exercise executive powers (id. At 732). Therefore, it could not function in an enforcement role by bringing suit under the Impoundment Control Act.

Further, the enforcement of GAO decisions ultimately come from Congress itself, in the form of oversight committees or appropriation actions. (Kate Stith, Congress’ Power of the Purse, Jan 1, 1988 at pg 1391), and its audit authority does not extend to all government agencies (id). Without sufficient authority from Congress, and being forbidden executive powers by the Court, it is unlikely the GAO can perform any meaningful enforcement of appropriations or statement and account issues.

IV. Appropriations and the Executive Branch

 

The limitations the Appropriation Clause place on the executive branch are not fully explored, even to this day. In part, this is because, as noted above, the Clause cannot allow Congress to violate other provisions of the Constitution or unduly impinge on the powers of other branches. This is also due to the fact that the powers of the Executive branch tend to expand and contract with the political climate and composition of the Supreme Court. However, there are still some basic separation of powers principles the Court has laid out.

The Supreme Court has classified three basic categories of executive action, and assigned differing levels of scrutiny to each category. (see Youngstown Sheet & Tube Company v. Sawyer, 343 U.S. 579 (1952)). In the first category, the executive acts with the authorization of Congress, and such action has a high presumption in its favor. (id). In the second category, the executive acts without authorization or denial from Congress, and each situation must be analyzed to understand the proper distribution of authority. (id.) In the third and final category, the executive takes action in defiance of Congressional will, and presidential power is “at its lowest ebb.” (id.) Such action is permitted only with a clear presidential power and is heavily scrutinized by the courts.

Appropriation actions are generally equivalent to Congressional approval or disapproval, since Congress often uses appropriation to amend or remove acts. (Bob Smith and Sarah Miller, The Constitutionality of Executive Spending Powers at 7). Furthermore, the framework Anti-Deficiency Act discussed above was passed expressly to prevent certain forms of executive overreach. This means that executive action in defiance of Congressional appropriation almost certainly belongs to the third category of executive action, and is highly scrutinized by the courts. (id.) For any such action to succeed, the executive needs to base such action on a clear, “conclusive and preclusive” executive power granted by the Constitution.

There are some areas where the Constitution does give the executive sufficiently clear power that it has a chance overcoming judicial scrutiny and defying Congressional acts of appropriation. Some aspects of the President’s authority regarding foreign affairs (see id. at 5, (citing United States v. Curtiss-Wright Export Corp 299 U.S. 304,319 (1936), American Insurance Association v. Garamendi, 539 U.S. 396 (2003)), and in emergency situations7 have, in the past, been allowed.

However, Congress maintains a broad swath of wartime powers as well, based it its ability to declare war and raise the army. (id at 19). The interplay between the war powers of the legislative and executive branches can often be hard to distinguish. (id. at 21). In particular, modern decisions in Hamdan v. Rumsfeld, 126 S. Ct. 2759 (2006) and Medellin v. Texas, 128 S. Ct. 1346 (2008) have largely overruled past deference to the executive regarding foreign affairs, and returned the Court’s analysis to the Youngstown test.

Further, the executive has other methods of circumventing the Appropriations Clause, such as reprogramming funds8, relying on the Feed and Forage law9, or simply deploying otherwise authorized troops and incurring coercive10 funding. (Bob Smith and Sarah Miller, The Constitutionality of Executive Spending Powers at 25). This state of affairs, where the executive’s ability to appropriate funds ebbs and flows with current political climate (and is currently ebbing) has resulted in few conclusive rulings by the courts, and an ongoing struggle between the legislative and executive.

V. Conclusions

 

The courts have largely avoided addressing issues raised by the Appropriations and Statement and Account Clause by refusing to find standing, or treating violations as non-judiciable questions they should not unduly interfere with. Thus, the courts have largely left the enforcement of violations of the Clause to Congress. They’ve done this to some extent through statutes regulating how the two Clauses must be handled, such as the Anti-Deficiency Act and Miscellaneous Receipts Act discussed above. There are a number of more recent statutes we have not discussed which have provided guidelines for proper reporting and appropriations actions such as the Government Management Reform Act and the Government Performance and Results Act.

Congress, however, seems determined to weaken the protection the clause gives them by authorizing appropriations of permanent and indefinite scope in situations such as the national debt and passing statutes limiting government financial reporting requirements such as the CIA Act. While it has the power to enforce the appropriations clause by simply placing limits in its own appropriations acts, Congress has the unfortunate tendency to ignore the obligations and limitations placed on them by their own statutes and the Constitution and delegate away their power. However, the judicial history reveals that it is quite difficult to convince courts to hear cases designed to ensure Congress follows either the Constitutional requirements of the Clauses or their own statutory requirements. If the powers of the Clauses are to be taken seriously at the federal level, it is primarily up to Congress to police itself. This is not to say no lawsuit challenging Congress’ behavior on Constitutional grounds could ever succeed, just that it would take an incredibly specific set of facts.

Finally, in areas of Executive overreach, where the President ostensibly violates the Clause, the courts are only slightly more willing to act. Generally, they leave it up to the politics between the legislative and executive, and only weigh in when one clearly and blatantly usurps the power of the other, or if the courts otherwise have an underlying statute to interpret and rule on. This is a poorly defined area of law, the exact details of how appropriations rules should apply are hotly debated. However, in general, where the Executive spends or designates fund without an appropriation from Congress they have acted beyond the scope of their powers.

The approach of Congress and the Courts have resulted in a hodgepodge of inconsistent powers. Congress will either write blank checks or just flat out ignore the executive’s improper spending, the executive will sometimes spend funds without legislative appropriation, properly or improperly, and the judiciary often stays out of the matter. This conflict might have strayed from how the Founders intended the checks and balances of our government to work and the transparency the Founders hoped to offer to the public. It has certainly left the state of the law unclear at best with an uphill battle for any attempt to remedy the situation through the courts alone.

VI. About Us

This article was written and edited by Michele Ferri and Jonathan Lurie of The Law Offices of Lurie and Ferri for use by the Solari Report. Michele Ferri and Jonathan Lurie and both practicing attorneys out of California. The Law Offices of Lurie and Ferri focus on working with start-up businesses as well as on intellectual property and business law issues. They can be found at http://www.lflawoffices.com/ or contacted at partners@lflawoffices.com.

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i. The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States;

To borrow Money on the credit of the United States;

To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;

To establish an uniform Rule of Naturalization, and uniform Laws on the subject of Bankruptcies throughout the United States;

To coin Money, regulate the Value thereof, and of foreign Coin, and fix the Standard of Weights and Measures;

To provide for the Punishment of counterfeiting the Securities and current Coin of the United States;

To establish Post Offices and post Roads;

To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;

To constitute Tribunals inferior to the supreme Court;

To define and punish Piracies and Felonies committed on the high Seas, and Offenses against the Law of Nations;

To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;

To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years;

To provide and maintain a Navy;

To make Rules for the Government and Regulation of the land and naval Forces;

To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;

To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;

To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of particular States, and the Acceptance of Congress, become the Seat of the Government of the United States, and to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards and other needful Buildings;-And

To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.


ii. 12 U.S. Code § 1701s – Rent supplement payments for qualified lower income families
12 U.S. Code § 1715z – Homeownership or membership in cooperative association for lower income families
42 U.S. Code § 1437c – Contributions for low-income housing projects

iii. For instance, in Sierra Club v. Morton, 405 U.S. 727 (1971), the Sierra Club’s general interests in preventing adverse changes to an area’s aesthetics and ecology was not sufficient to show individualized harm to it or its members. The circuit courts have since followed this decision.

iv. In B.k Instrument v. U.S., 715 F.2d 713 (2d Cir. 1983) the Plaintiff sued when the government agency in question would not allow correction to an accidentally erroneous form, despite Plaintiff offering the lowest bid.

v. In United States v. Students Challenging Regulatory Agency Procedures, 412 U.S. 669 (1973), a student association alleged a federally controlled freight rate change directly impacted their aesthetic and scenic enjoyment of the environment around Washington, D.C. The alleged injury was there was personalized and direct to each plaintiff, and rose beyond a ‘general interest.’

vi. (Beaty v. Republic of Iraq, 480 F.Supp.2d 60 (D.D.C. 2007) (where the interpretation of the Foreign Sovereign Immunities Act was at issue, allowing the court to sidestep an otherwise foreign policy related political question)

vii. Three commonly referenced instances: President Washington spent during the Whiskey Rebellion without congressional approval, President Jefferson purchased goods after the Chesapeake – Leopard affair, and Lincoln purchased supplies without congressional approval in the early days of the Civil War.

viii. Essentially, moving funds from one part of an agency to another, often informing Congress after the fact.

ix. The Feed and Forage Act of 1861 expressly allows the military to exceed appropriations in order to provide clothing, food, fuel, quarters, transportation and medical supplies.

x. For instance, despite the existence of the Anti-Deficiency act, which is supposed to prevent coercive funding, the President is capable of committing troops in advance of specific Congressional authorization or denial, and the consequences of refusing to support the troops can be dire to any political career.

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