DEFENSE LAWMAKING - Columbia Law Review

As James Madison famously wrote, the power of the purse is “the most complete and effectual weapon with which any constitution can arm the immediate representatives of the people.” But the Constitution does not outline specific procedures for how Congress should use that weapon. Over time, Congress has developed a set of norms—the two-step authorization-appropriations process—to effectively execute its power under the Appropriations Clause. The two-step process was born out of a need to limit appropriations “riders” and maximize congressional oversight over an increasingly complex federal budget.

The two-step process has broken down with Congress’s failure to reenact temporary authorization bills on schedule. However, one anomalous bill stands as a stark exception to this breakdown—the annual National Defense Authorization Act (NDAA), which authorizes programs for the Department of Defense. Indeed, despite Congress’s growing reputation for inaction and gridlock, the NDAA is routinely commended as “one of the last remaining relics of bipartisan consensus” and “perhaps the last bill, the last legislative process, that still actually works.”

This Note sheds light on the process that Congress has used to enact the NDAA on an annual basis for the last fifty-nine years. It argues that the breakdown of the authorization-appropriations process in nondefense policy areas weakens congressional oversight and proposes that Congress use the NDAA as a model to reignite the reauthorization process for other bills. Otherwise, the appropriations process may cease to provide as “complete and effectual” an oversight weapon as Congress can and should possess.

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*J.D. Candidate 2020, Columbia Law School. The author would like to thank E. Scott Adler, Maddy Berg, Tim Bialecki, Jamal Greene, Richard Lazarus, Gillian Metzger, David Pozen, and the staff of the Columbia Law Review for their invaluable comments, expertise, and editorial support in connection with this Note. The author worked in the U.S. Senate from 2013–2017. Unless otherwise attributed, the views expressed in this Note are the author’s alone.

Introduction

Since the Founding, lawmakers have recognized the importance of temporary spending legislation as a key element of congressional oversight over the executive branch. 1 See infra section I.A.1. Over time, Congress developed a set of norms—a two-step process known as the authorization-appropriations process—in order to distribute responsibility for crafting temporary spending bills, encourage specialization among congressional committees, and boost efficiency. 2 See Louis Fisher, The Authorization-Appropriation Process in Congress: Formal Rules and Informal Practices, 29 Cath. U. L. Rev. 51, 52–59 (1979) [hereinafter Fisher, Authorization-Appropriation Process] (outlining the history of the authorization-appropriations process). The authorization-appropriations process requires that Congress first authorize temporary spending levels for federal programs and then appropriate temporary funds for those programs. 3 Bill Heniff Jr., Cong. Research Serv., RS20371, Overview of the Authorization-Appropriations Process 1 (2012). This two-step process is commonly presented as the primary model that the legislative branch uses to divide oversight responsibilities between “authorizing” committees and “appropriations” committees. 4 Id.

In practice, however, this two-step model has broken down. Increasing inertia has led Congress to allow many temporarily authorized programs to expire without any impact on appropriations. 5 See infra section II.A. Consequently, the appropriations committees, with their limited resources and enormous responsibility over the federal budget, hold considerable policymaking power at the expense of overall congressional oversight. 6 See infra section II.A.2 (explaining the decline of authorization bills).

One anomalous bill has withstood the overarching forces that have eroded the two-step process. The annual authorization bill for defense spending stands as a striking exception to the trend away from authorizing spending in advance of appropriations bills. 7 See David Hawkings, Which of These Bills Is Not Like the Others? The Defense Budget, Roll Call (Sept. 18, 2017), https://www.rollcall.com/news/hawkings/defense-budget-congress-authorization [https://perma.cc/JZE4-K26K]. For each of the last fifty-nine years, Congress has passed an annual bill to authorize funding for defense programs. 8 Joe Gould, Armed Services Committee Chairmen Resolve to Narrow Defense Bill in 2020, Def. News (Dec. 30, 2019), ‌https://www.defensenews.com/congress/2019/12/30/hold-armed-services-chairmen-resolve-narrower-defense-bill-in-2020 [https://perma.cc/VMJ9-EKYQ]. In legal literature and most press accounts, the National Defense Authorization Act (NDAA) is considered “must pass,” despite clear evidence that Congress neglects to consider other authorization bills as prerequisites for appropriations. 9 See, e.g., Sheryl Gay Stolberg, Senate Passes $700 Billion Pentagon Bill, More Money Than Trump Sought, N.Y. Times (Sept. 18, 2017), https://www.nytimes.com/2017/09/18/us/politics/senate-pentagon-spending-bill.html (on file with the Columbia Law Review) (describing the NDAA as “one of the few must-pass measures to go through Congress”).

This Note examines the legislative process surrounding the NDAA and proposes ways that it can serve as a model for Congress to restore the authorization-appropriations process in nondefense policy areas. Despite its relevance to today’s political climate, the subject of intrabranch constitutional norms is “surprisingly understudied.” 10 David E. Pozen, Self-Help and the Separation of Powers, 124 Yale L.J. 2, 34 n.136 (2014). Scholars have drawn attention to the general importance of the appropriations process as an oversight tool. See, e.g., Jack M. Beermann, Congressional Administration, 43 San Diego L. Rev. 61, 84–90 (2006) (describing how Congress uses the appropriations process to supervise federal agencies). Others have thoughtfully considered how courts should treat recent, high-profile disputes over appropriations law. See, e.g., Matthew B. Lawrence, Disappropriation, 120 Colum. L. Rev. 1, 74–86 (2020) (proposing a default rule for courts to limit “disappropriations,” or instances of unfunded appropriated entitlements). This Note adds to the discourse by drawing upon primary source interviews with individuals who have worked on the NDAA and other authorization bills, including a U.S. Senator, Republican and Democratic congressional staff, a former White House official, and a senior lobbyist.

Part I discusses the history of the authorization-appropriations process, how it should work in theory, and why it is important to the separation of powers. Part II describes the recent collapse of the process and introduces the NDAA, illuminating the political and procedural mechanisms that ensure its successful passage every year. Finally, Part III proposes several solutions to restore the fading authorization-appropriations process for bills other than the NDAA, arguing that authorizing committees should use the NDAA as a model to enact regular authorizing bills in their legislative jurisdictions. Doing so would strengthen congressional oversight, policymaking, and transparency.