Introduction
Appropriations lie at the core of the administrative state. Without appropriations, the executive branch cannot act, and thus choices about agency funding have a fundamental impact on how the government operates. Long recognized as important, appropriations’ centrality to government is even more true today. Deepening partisan divides, competitive politics, and divided government have stymied substantive legislation in Congress and caused greater exploitation of must-pass funding measures to advance political agendas. Policy battles between Congress and the President increasingly are fought on the terrain of the budget, leading to longer and more frequent government shutdowns, ongoing contestation over the use of appropriated funds, unfulfilled statutory promises, and little long-term policy resolution. Rather than amending or repealing substantive authorizations, Congress resorts to appropriations riders and funding denials as its tools of choice to control government policy.
The President, in turn, creatively interprets appropriations statutes, imposes new grant conditions, repurposes and withholds funds, and invokes inadequate funding as a basis for broad assertions of presidential discretion.
Meanwhile, dedicated funding streams and agency-generated funds are used to protect new regulatory initiatives against both congressional and presidential appropriations control.
A high-profile example of appropriations’ importance was the battle between President Trump and the Democratic-controlled House of Representatives over money to build a wall at the country’s southern border that marked the second half of Trump’s term in office. Disagreements over the border wall led to a record-setting thirty-five-day partial government shutdown from December 2018 to January 2019.
Immediately after signing an appropriations bill that included far less money for building a wall than he had sought, President Trump declared a national emergency and stated that his administration would transfer billions of dollars appropriated for other purposes to wall construction—sparking Democratic outrage and multiple lawsuits.
A California district court quickly granted a preliminary injunction that the Supreme Court ultimately stayed.
In June 2020, the Ninth Circuit upheld the district court’s subsequent permanent injunction, and the case is currently before the Supreme Court.
Meanwhile, the D.C. Circuit recently held that the House of Representatives has standing to challenge the fund transfer as violating the Appropriations Clause.
President Trump is hardly alone in his creative use of appropriations to push his policy priorities. Consider President Obama’s efforts to fund key cost-sharing components of the Affordable Care Act (ACA), his signature political achievement. After no annual appropriation was enacted to cover the cost-sharing obligations the ACA imposes on insurers, the Obama Administration sought to use a permanent appropriation instead, an effort that was enjoined as a result of a lawsuit brought by the Republican-controlled House of Representatives.
Congress also adopted an appropriations rider preventing the use of annual appropriations to fund the ACA’s risk-sharing program, leading insurers to file suit in the Court of Federal Claims. In Maine Community Health Options v. United States, the Supreme Court held that the government was liable for the unpaid risk corridor payments, which amounted to around $12 billion.
Yet another recent instance of appropriations dominating the national political landscape involved the Trump Administration’s withholding of military aid for Ukraine. It was this action that sparked President Trump’s first impeachment; the House of Representatives determined that the withholding was part of an effort by Trump to encourage a foreign government’s interference in the U.S. presidential election by pressuring Ukraine to investigate his presidential rival, now-President Joe Biden.
Also in the news in 2020 was the Trump Administration’s withholding of appropriated funds from Puerto Rico, Native American tribes, and the World Health Organization, as well as President Trump’s threat to deny funds to states expanding absentee voting.
Trump additionally directed high-level officials in his administration to identify a list of “anarchist jurisdictions” that would be ineligible to receive discretionary federal funds, promised $200 drug-discount cards to seniors, and threatened to deny funds to schools that did not reopen in the fall of 2020.
Meanwhile any doubt about the policy and separation of powers significance of appropriations should be erased by the COVID-19 pandemic. Massive appropriations lie at the heart of the federal government’s response, with partisan fights over new funding and interbranch battles over oversight and allocation of the funds.
Of particular note, these recent appropriations disputes are often taking a legal as well as political guise. Federal courts are seeing a broad array of litigation involving appropriations and funding, including not just the border wall and ACA-related lawsuits but also states’ challenges to the Trump Administration’s efforts to deny funds to sanctuary jurisdictions,
criminal defendants’ challenges to prosecution for marijuana offenses in violation of an appropriations rider,
and challenges involving the government’s failure to meet statutory obligations due to inadequate funding.
This increasing legal dimension is a relatively new phenomenon. To be sure, prior political clashes over spending have sometimes resulted in litigation, but the number of high-profile cases today in which courts are grappling with appropriations matters is unusual.
This increase in appropriations lawsuits is part of a broader trend in which courts are stepping into political battles in our polarized age, resulting in a marked expansion in separation of powers–infused litigation.
Yet legal challenges to appropriations actions raise unique problems and concerns for two reasons. The first is that, despite their centrality to government operations, appropriations are marginalized in public law doctrine. The second is that the resultant rules courts apply to appropriations disputes serve to enhance executive branch and presidential power over appropriations at the expense of Congress.
The marginalization of appropriations in public law doctrine takes several forms. Many public law doctrines apply appropriations exceptionalism, pulling appropriations out from governing legal frameworks and employing sometimes arcane appropriations-specific rules. Others engage in appropriations silence, either ignoring appropriations altogether or simply assimilating appropriations to existing frameworks without acknowledging that those frameworks ill-fit appropriations realities. And often marginalization takes the form of jurisdictional exclusion of appropriations disputes, whether as the result of appropriation-specific jurisdictional rules or application of existing jurisdictional requirements that appropriations disputes cannot easily satisfy.
For instance, constitutional jurisprudence on congressional delegation rarely engages with the implications of appropriations, and the same is true of separation of powers cases more broadly.
Expand from separation of powers to cases involving the spending of government funds and this exclusion might seem less severe. Courts regularly consider constitutional limits on government funds in individual rights and federalism contexts.
Yet even here, special rules often govern when government funds are involved. As just one example, the Supreme Court has indicated that the involvement of government funds may pull agency action outside of otherwise applicable structural constitutional constraints, such as Article III or the commandeering doctrine.
The marginalization of appropriations is even clearer in administrative law and statutory interpretation. Appropriations actions are often exempt from standard procedural requirements, and barriers to judicial review of appropriations decisions are common.
Even the personnel and offices involved in appropriations and budget matters differ from the administrative law norm. Within the executive branch, budget and accounting offices rather than substantive program divisions are the appropriations frontline, and appropriations also involve different centralized executive branch overseers.
A number of other less familiar entities play starring roles as well, such as the Government Accountability Office (GAO), the Congressional Budget Office (CBO), and the Court of Federal Claims. When appropriations questions do surface in court, it is often in a statutory interpretation guise, resulting in a number of appropriations-specific doctrines that minimize the impact of appropriations measures on substantive law.
Appropriations’ marginalization in doctrine does not necessarily entail marginalization in practice. Sometimes doctrinal marginalization actually serves to make appropriations a more potent tool for the political branches by freeing appropriations from legally enforceable constraints.
Indeed, appropriations play a much more starring role in nondoctrinal public law. A well-established statutory and regulatory framework—replete with a substantial body of guidance, internal executive and legislative branch decisions, and longstanding norms—governs agency budgeting and spending. This framework is primarily enforced by legislative and executive branch entities, making only rare appearances in court. Yet even this political branch public law of appropriations is increasingly marginalized, with appropriations norms and practices being undermined by partisan disagreements and policy disputes between the legislative and executive branches.
Importantly, moreover, appropriations’ doctrinal marginalization does not affect the political branches equally. Especially combined with the erosion of appropriations norms and practices that reinforce congressional control, such doctrinal marginalization redounds to the executive branch’s benefit. This is especially true of doctrines that exclude appropriations challenges from the jurisdiction of the federal courts. The cumulative effect is the creation of a de facto presidential spending authority and a corresponding weakening of congressional control of the purse.
Appropriations have long received substantial attention from political scientists and congressional scholars, who have examined among other things the political dynamics of the appropriations process and how Presidents wield influence over federal spending.
But the marginalization of appropriations also exists in public law scholarship, which has largely ignored issues of agency funding.
This blindness to appropriations is beginning to change, with a growing body of scholarship documenting the importance of appropriations to the administrative state. This work has opened a window on appropriations, offering rich accounts of how Congress,
the President,
and agencies
use funding measures to advance their policy priorities. Scholars are also developing nuanced analyses of how appropriations fit into the constitutional separation of powers framework,
a subject that has received little sustained engagement since the 1980s in the aftermath of Iran–Contra.
Still, the marginalization of appropriations in public law doctrine has gone mostly unremarked, and a comprehensive analysis of how courts do and should approach appropriations remains lacking.
This Article aims to provide that analysis and explore the implications of taking appropriations seriously in public law doctrine. The disconnect between the lived appropriations-centric reality of administrative governance and the appropriations-excluded doctrinal rubrics of public law raises several questions: What explains the marginalization of appropriations in public law doctrine? Is this marginalization constitutionally justified? And what would happen if we rethink public law by putting government funding at the core of the doctrinal analysis rather than pushing it to the periphery?
Appropriations marginalization has several sources. One is the courts’ traditional reluctance to impose financial penalties or funding obligations on governments, which is connected to a belief that resource allocations are core policy and sovereign determinations that belong in the political branches. Put differently, the marginalization of appropriations in public law doctrine is closely linked to the centrality of appropriations in the political arena. At the same time, however, the doctrinal marginalization of appropriations also embodies normative judgments made by courts about how Congress should operate. In particular, a central basis is judicial prioritization of substantive legislative enactments over appropriations and skepticism of appropriations as a policymaking tool.
These rationales fail to justify the current doctrinal marginalization of appropriations. For starters, this marginalization creates a disconnect between contemporary governance reality and governing legal frameworks. More importantly, the downplaying of appropriations and corresponding elevation of substantive legislative enactments is at odds with the Constitution. Constitutional text, structure, and history make clear the central importance of Congress’s appropriations power. Legal doctrines governing appropriations therefore should seek to empower congressional control of appropriations. Yet as noted above, doctrines that marginalize appropriations often have the opposite effect. They also serve to undercut political accountability through Congress, because appropriations are one of the most available means by which Congress can shape policy today. The doctrinal marginalization of appropriations additionally threatens the rule of law by freeing government from legally enforceable checks with respect to appropriations. And appropriations’ doctrinal marginalization undermines the separation of powers even further by creating de facto presidential spending authority, enabling the executive branch to violate governing statutes on appropriations without legal consequences.
This is not to deny that increased judicial involvement in appropriations carries separation of powers risks of its own. The concern that bringing appropriations into the public law mainstream will expand judicial power at the political branches’ expense is real and legitimate. But this fear must be balanced against the very serious separation of powers harms caused by appropriations’ exclusion in our current polarized era. The erosion of longstanding norms and practices in the wake of polarization means that political branch public law is increasingly unable to enforce congressional control over appropriations on its own. Moreover, courts are being dragged into appropriations disputes already, suggesting that the issue is not one of whether courts should play a role in such matters but rather what rules should govern the role they play.
That leaves the question of what taking appropriations seriously might mean for public law doctrine. Here it is helpful to differentiate among the different forms that appropriations’ doctrinal marginalization takes. Appropriations silence is the most difficult to justify; at a minimum, taking appropriations seriously should mean that courts engage expressly with the import of appropriations and incorporate appropriations into their analysis. But rules that pull appropriations out for special treatment are not necessarily problematic, provided such appropriations exceptionalism reflects the realities of the appropriations process and is not an effort to downplay appropriations. Indeed, appropriations-specific rules can provide an important means of balancing different imperatives, such as enforcing congressionally imposed limits while also preserving needed budget flexibility. Taking appropriations seriously also entails paying special attention to the separation of powers dynamics raised by appropriations, with interpretive doctrines structured so as to reinforce Congress’s power of the purse over the executive branch. It further requires including assessment of appropriations measures in separation of powers analysis. More radically yet, taking appropriations seriously—and also acknowledging the risks posed by expanding the judicial role in appropriations disputes—suggests rethinking jurisdictional doctrines to put primacy on congressional enforcement of appropriations limits in court.
In what follows, Part I begins by outlining the traditional frameworks and institutional arrangements that govern appropriations. It then describes appropriations’ current centrality to administrative government and contemporary separation of powers disputes. Part II turns to documenting how, despite this importance, appropriations are marginalized in public law. It begins by identifying the different analytic mechanisms by which this sidelining of appropriations occurs and then looks in detail at how these mechanisms surface in constitutional and administrative law, statutory interpretation, and political branch public law. Part III takes a step back to assess appropriations marginalization in public law, first identifying the rationales on which such marginalization rests and then arguing that these rationales fail to justify the sidelining of appropriations. It contends that the current marginalization is at odds with the constitutional importance of Congress’s appropriations power and undermines political accountability, the rule of law, and the separation of powers. Part IV turns to the reconstructive project, exploring what taking appropriations seriously might mean in practice and examining the implications of such a new approach to appropriations for the border wall funding dispute.
A note on terminology is warranted. This Article uses the term “appropriations” expansively, including under its embrace not simply legislation allocating budget authority to different government functions—the traditional definition of appropriations—but also administrative actions implementing those allocations and making expenditures that more often are classified as involving government spending. Both appropriations and spending involve provision of government funds and are manifestations of the same congressional power of the purse. But spending is the term generally applied to grants of funds outside of the federal government, especially to state and local governments or private actors, whereas appropriations is used to refer to funding the federal government. The term appropriations is thus particularly tied to the separation of powers issues that dominate the analysis here. However, spending disputes often carry separation of powers dimensions, especially today, and thus merit inclusion in the discussion as well.