Introduction
“Here an appropriation is less a grant of money than an act of duty, to which the Constitution, that is, the will of the nation, obliges us.”
“We need to handle our financial situation.”
In recent years, Congress has repeatedly failed to appropriate funds necessary for the government to honor permanent, statutory payment commitments (or entitlements
), thereby forcing the government to break those commitments.
Such “disappropriations”
have been destructive and unfair for frustrated recipients and have undermined the rule of law. Moreover, the resulting “contradiction”
between a statutory command to pay and a constitutional prohibition on expenditures absent “[a]ppropriations made by law”
continues to vex the courts. When the government broke its commitment to fund tribal support contracts, tribes were forced to cut back on health care, law enforcement, and education services for decades until ultimately prevailing 5-4 in Salazar v. Ramah Navajo Chapter.
When the government failed to honor Affordable Care Act (ACA)
payment commitments—due to what many described as “sabotage”—insurers raised their premiums, left the ACA marketplaces, went bankrupt, and filed scores of lawsuits currently awaiting decision from the Supreme Court.
And government shutdowns in October 2013, January 2018, and December 2018–January 2019 have for increasing periods disrupted legal and subjective commitments like food stamps and tax refunds, again spurring a plethora of lawsuits.
Despite its immense impact in recent years and the many blockbuster lawsuits it has brought about, the phenomenon of disappropriation of legal commitments to pay has not previously been isolated and analyzed in legal scholarship.
This Article closes the gap by documenting and offering a theoretical understanding of this phenomenon, then applying that understanding to address pressing questions about its regulation and adjudication.
The Article explains disappropriations of legal commitments as only one probabilistic consequence of the overlooked fact that Congress has enacted scores of payment commitments in permanent law that are dependent for their operation upon periodic temporary appropriations.
Medicaid and food stamps are examples of such programs, and Medicare and Social Security soon will be as their trust funds become insufficient to cover their liabilities. In creating permanent but temporarily funded commitments, Congress has exercised its legislative power to command payment in dissonance with its appropriations power to permit expenditure.
This Article’s core descriptive contribution is that the dissonance between Congress’s legislative power and its appropriations power that creates the risk of disappropriation also preserves an enduring sphere of legislative influence (over executive implementation) and majoritarian control (against the “dead hand” and leadership). These impacts of dissonance on the balance of powers complicate efforts to reduce the harms of disappropriation. Although the Article explains how disappropriation is destructive and unfair, many reforms to prevent or remedy it would also eliminate or reduce the underlying dissonance that gives rise to it, thereby recalibrating the balance of powers. This possibility is a reason for hesitation about many efforts to reduce the harms of disappropriation, such as by funding all permanent commitments with default appropriations.
Readers could reasonably conclude that disappropriation of legal commitments is so destructive, unfair, and harmful to the rule of law that it should be prevented or even declared unconstitutional regardless of consequences for the balance of powers.
The Article ultimately remains agnostic on such normative and constitutional questions raised by its study of disappropriation, endeavoring instead to flesh out the underlying considerations and tradeoffs. The insight that dissonance between Congress’s legislative power and its appropriations power not only creates a risk of disappropriation but also preserves an enduring sphere of legislative influence and majoritarian control has important implications for the regulation and adjudication of disappropriation.
For regulation, scholars addressing temporary (so far) mass disappropriations known as “shutdowns” have failed to recognize or address the dissonance that gives rise to such crises or the implications of that dissonance for the balance of powers. This has led them to express support for legislative changes along the lines of the recently proposed Stop STUPIDITY Act that seek to make shutdowns less likely in ways that, the Article explains, would unintentionally enhance executive power and entrenchment.
For adjudication, courts called upon to adjudicate disappropriation controversies have struggled to resolve the challenging legal questions they present.
Consideration of ex ante impacts on the likelihood of disappropriation and on the balance of powers reveals that judicial approaches to date have been unhelpful and counterproductive.
Such consideration also reveals that courts could play a salutary role by favoring rules that reduce the ex ante likelihood of disappropriation without significantly interfering with the balance of powers. This counsels in favor of judicial approaches that prevent inadvertent disappropriation by reducing uncertainty and private information about the predicted consequences of a potential disappropriation.
This Article therefore recommends that courts (1) adopt an interpretive presumption against disappropriation of clear legal commitments rather than the deference sought by the executive or the pro-disappropriation presumption employed by the court in United States House of Representatives v. Burwell;
(2) empower civil servants rather than Congress to enforce disappropriation; (3) reject the nationwide preliminary injunction remedy sought by several states in California v. Trump in favor of expedited, but final, declaratory relief; and (4) adjudicate claims for damages without arbitrarily privileging fact-intensive categories of commitments (like “contracts”) and without considering the scorekeeping choices of the political branches.
Two metaphors illustrate the relationship between disappropriation, dissonance, and the balance of powers. It might be tempting to think of disappropriation—whether in the form of shutdowns, lapses, shortfalls, breaches, or otherwise—as a “symptom” and dissonance between the legislative powers to commit to pay (exercised permanently) and to permit payment (exercised temporarily) as the “disease” to be eradicated. This would counsel in favor of default rules that make shutdowns impossible or painless, permanent appropriations to fund any new entitlements and eliminate the risk of disruption, and expansive judicial remedies that compensate disappointed recipients fully for the costs to them of broken government commitments caused by lack of appropriations. But that metaphor is inappropriate because it ignores the potentially salutary effects of dissonance that arise from the threat of disappropriation regardless of whether disappropriation occurs.
The more appropriate metaphor is that between fission, nuclear power (harnessed through fission), hazardous waste (a cost always associated with fission), and a meltdown (a rare but profound harm risked by generating power through fission). By splitting its purse powers of commitment and appropriation, Congress derives a unique form of enduring influence connected to the threat of disappropriation (the “fission” and “nuclear power” in this metaphor), but doing so entails disparate impacts and inevitable costs for privatization and federalism associated with the mere possibility of disappropriation (the hazardous waste) and may lead to cataclysm if disappropriation actually results (the meltdown). In other words, careful calibration is necessary if the goal is to preserve the power source (the threat of disappropriation associated with dissonance) while preventing the worst consequences (actual disappropriation).
This Article proceeds in five parts. Part I begins by explaining the Article’s functional understanding of the “powers of the purse,” under which appropriations are not themselves a singular formal “purse power,” but a mechanism for controlling just one of several means of financial inducement at the disposal of the modern administrative state. It then introduces the other such means that make up the federal “bundle of carrots,” highlighting the executive and legislative commitment powers, and explains the pervasiveness of legal commitments to pay that depend on temporary appropriations in the modern welfare state. Finally, it defines “disappropriation” broadly as the failure to enact appropriations necessary to honor a government commitment, whether for payment or conduct, legal or subjective.
Part II describes the emergence of disappropriation in several recent headline-dominating controversies including shutdowns, ACA sabotage, tribal support costs, and the CHIP lapse.
And it identifies the need for and lack of theoretical understanding of disappropriations and the dissonance between Congress’s legislative power to commit to pay and its appropriations power to permit payment that gives rise to disappropriations.
Part III unpacks the consequences of dissonance between legislative commitments to pay and legislative appropriations. Dissonance is plainly a cause of disappropriations. When disappropriations materialize, they unfairly harm recipients, undermine the rule of law, can shift blame from the legislature to the executive and courts, and can confer added discretion on the executive. Dissonance also creates a probability of disappropriation, which carries its own costs for privatization and cooperative federalism whether disappropriation happens or not. But dissonance also creates the threat of disappropriation, which reduces entrenchment, can increase legislative influence, and recalibrates the intrabranch balance of power within Congress between leadership and the rank-and-file.
Part IV explores implications of the insights that disappropriation arises from Congress’s decision to exercise its legislative power to commit to pay and its appropriations power to permit payment in dissonance with one another, and that by doing so it can preserve majoritarian control and legislative influence. This Part raises and positions questions for constitutional doctrine, the separation of powers, the design of federal commitments such as new entitlements, and efforts to reduce the harms of disappropriation. And it explains that approving scholarly analyses of penalty default proposals to prevent shutdowns are incomplete because they fail to consider the impact of such proposals on the balance of powers.
Part V addresses applications for courts called upon to adjudicate disappropriation controversies. To date, disappropriation debates in Congress have played out like a game of chicken in the fog;
neither “side” is really able to judge when it has reached the point of no return or the impacts of collision due to uncertainty about what courts and the executive would do and when they would do it, among other things. Part V counsels in favor of judicial approaches to questions of interpretation, enforcement, and remedies that lift the fog, that is, make it easier for the legislature and the executive to predict whether any particular action or inaction will effect a disappropriation and, if so, what the consequences of that disappropriation will be. Finally, a brief concluding section summarizes the Article’s contribution.