Congress' Power of the Purse

Congress' Power of the Purse Kate Stitht In view of the significance of Congress' power of the purse, it is surprising that there has been so little scholarly exploration of its contours. In this Arti- cle, Professor Stith draws upon constitutional structure, history, and practice to develop a general theory of Congress' appropriationspower. She concludes that the appropriationsclause of the Constitution imposes an obligation upon Congress as well as a limitation upon the executive branch: The Executive may not raise or spend funds not appropriatedby explicit legislative action, and Congress has a constitutional duty to limit the amount and duration of each grant of spending authority. Professor Stith examinesforms of spending authority that are constitutionally troubling, especially gift authority, through which Congress permits federal agencies to receive and spend private contri- butions withoutfurther legislative review. Other types of "backdoor" spending authority, including statutory entitlements and revolving funds, may also be inconsistent with Congress' duty to exercise control over the size and duration of appropriations.Finally, Professor Stith proposes that nonjudicial institu- tions such as the General Accounting Office play a larger role in enforcing and vindicating Congress' power of the purse. TABLE OF CONTENTS I. THE CONSTITUTIONAL LAW OF APPROPRIATIONS 1346 A. The Constitutional Prerequisitesfor Federal Gov- ernment Activity 1346 B. The Place of Congress' Power To Appropriate in the Structure of the Constitution 1348 C. The Constitutional Function of "Appropriations" 1352 D. The Principlesof the Public Fisc and of Appropria- tions Control 1356 E. The Power to Deny Appropriations 1360 II. APPROPRIATIONS CONTROL: THE LEGISLATIVE FRAME- WORK 1363 t Associate Professor of Law, Yale Law School. B.A. 1973, Dartmouth College; M.P.P., 1977; J.D. 1977, Harvard University. Previous versions of this Article were presented at the Yale Law School Faculty Workshop and the Law and Economics Workshop of the University of Toronto, Faculty of Law. The author thanks the members of each workshop for their comments. I am especially grateful for the advice and comments of colleagues who read early drafts of portions of the Article: Bruce Ackerman, Akhil Amar, Owen Fiss, Paul Gewirtz, Joseph Goldstein, Paul Kahn, Har- old Koh, Jerry Mashaw, George Priest, Roberta Romano, and Peter Schuck. 1343 HeinOnline -- 97 Yale L.J. 1343 1987-1988 1344 The Yale Law Journal [Vol. 97: 1343 A. The Miscellaneous Receipts Statute and Its Excep- tions 1364 B. The Anti-Deficiency Act 1370 1. The Rule Against Deficiencies 1370 2. The Rule Against Voluntary Service 1372 C. The Anti-Deficiency Act and the Principle of Appro- priations Control 1374 III. THE MEANING OF "APPROPRIATIONS" UNDER THE CON- STITUTION 1377 A. Legislative Permission as "Appropriation" 1378 B. Constitutional Limits on Spending Authority 1381 IV. ENFORCING THE APPROPRIATIONS REQUIREMENT 1386 A. Enforcement Against the Executive 1386 B. Enforcement Against Congress 1392 The covert program of supportfor the Contras evaded the Consti- tution's most significant check on Executive power: the President can spend funds on a program only if he can convince Congress to appropriatethe money.' Among the duties-and among the rights, too-of this House, there is perhaps none so important as the control which it constitutionally possesses over the public purse.' The Constitution places the power of the purse in Congress: "No Money shall be drawn from the Treasury, but in Consequence of Appro- priations made by Law . ... , This empowerment of the legislature is at the foundation of our constitutional order. Yet there has been virtually no sustained legal scholarship that addresses the constitutional function and significance of Congress' power of the purse, explains how Congress' exclusive power of appropriation relates to other constitutional powers of Congress and the President, or considers the proper arenas in which the appropriations requirement might be construed and enforced." Nor has it previously been proposed that Congress itself might violate the appropria- 1. SENATE SELECT COMM. ON SECRET MILITARY ASSISTANCE TO IRAN AND THE NICARAGUAN OPPOSITION & HOUSE SELECT COMM. TO INVESTIGATE COVERT ARMS TRANSACTIONS WITH IRAN, REPORT, S. REP. No. 100-216, H.R. REP. No. 100-433, 100th Cong., 1st Sess. 18 (1987) [hereinafter IRAN-CONTRA REPORT]. 2. 19 ANNALS OF CONG. 1330 (1809) (remarks of Rep. J. Randolph). 3. U.S. CONST. art. I, § 9, ci. 7. 4. A thoughtful consideration of some of these issues is L. FISHER, PRESIDENTIAL SPENDING POWER (1975); see also L. TRIBE, AMERICAN CONSTITUTIONAL LAW 257 (2d ed. 1988) (noting dearth of scholarship concerning constitutional constraints on executive spending power). The most thorough account of the early struggles between Congress and the Executive over control of the fisc is L. WILMERDING, THE SPENDING POWER (1943). HeinOnline -- 97 Yale L.J. 1344 1987-1988 1988] Power of the Purse 1345 tions clause by failing to exercise effective control over federal 5 expenditures. The present inquiry may be summarized as follows. The Constitution presupposes a distinction between the public sphere and the private sphere and permits expansion of the public sphere only with legislative approval. The appropriations requirement both reflects and implements these fundamental constitutional choices. In specifying the activities on which public funds may be spent, the legislature defines the contours of the federal government. From this understanding of the structural function of appropriations, we may derive two governing principles: first, a Principle of the Public Fisc, asserting that all monies received from whatever source by any part of the government are public funds, and second, a Principle of Appropria- tions Control, prohibiting expenditure of any public money without legislative authorization. The two principles are complementary: The Public Fisc principle defines all federal receipts, while the Appropriations Con- trol principle defines all lawful federal expenditures. These two principles impose powerful limitations on the executive branch. Agencies and officials of the federal government may not spend monies from any source, private or public, without legislative permission to do so. Even where unauthorized spending by the Executive would impose no additional obligation on the Treasury-because it is made with private or other non-governmental funds-the Constitution prohibits such spending if it is not authorized by Congress. All federal receipts must be "deposited," at least figuratively, into the Treasury, and all spending in the name of the United States must be pursuant to legislative appropriation. The Principles of the Public Fisc and of Appropriations Control also impose an obligation on Congress itself. Congress has not only the power but also the duty to exercise legislative control over federal expenditures. If Congress permits the Executive access to the public fisc without effective appropriations control, then the Executive alone defines the scope and character of the public sphere, especially in areas that inherently require significant executive discretion. Congress abdicates, rather than exercises, its power of the purse if it creates permanent or other open-ended spending authority that effectively escapes periodic legislative review and limitation. Accordingly, I propose that not every legislative grant of spending 5. Students of the Constitution have generally assumed that Congress has exclusive authority to construe and implement the appropriations clause and thus have not considered the possibility that Congress itself may violate the clause. See, e.g., E. CORWIN, THE CONSTITUTION AND WHAT IT MEANS TODAY 133-34 (14th ed. 1978); 1 W. WILLOUGHBY, CONSTITUTIONAL LAW OF THE UNITED STATES 105 (2d ed. 1929). But see CONSTITUTIONAL CONTROVERSIES 95 (R. Goldwin, W. Schambra & A. Kaufman eds. 1987) (suggestion by author that certain aspects of legislative budget practice are "not in keeping with at least the spirit of the appropriations clause"). HeinOnline -- 97 Yale L.J. 1345 1987-1988 1346 The Yale Law Journal [Vol. 97: 1343 authority necessarily qualifies as an "Appropriation[ ] made by Law" under the Constitution. Under present practice, Congress creates many forms of spending authority outside of the legislative appropriations process, many of which are open-ended as to amount or time.6 Not all of this spending is constitutionally suspect, for Congress may effectively limit spending authority through substantive legislation and periodic review, even when the form of the authority is open-ended. In determining whether a grant of spending authority is a constitutional appropriation, it does not matter whether Congress uses the word "appropriate." What matters is whether Congress in fact determines how much funding for a government activity is "appropriate." Section I develops a general theory of Congress' appropriations power and proposes that the Principles of the Public Fisc and of Appropriations Control are implicit in our constitutional order. Section II examines how Congress has construed and implemented the appropriations requirement in two framework statutes first enacted in the nineteenth and early twen- tieth centuries: the Miscellaneous Receipts statute7 and the Anti- Deficiency Act.' Section III argues that, in certain circumstances, legislation granting permanent or indefinite spending authority outside of

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