Document Type

Article

Publication Date

2021

Disciplines

Administrative Law | Constitutional Law | Law | Legislation | Litigation

Center/Program

Center for Constitutional Governance

Abstract

Appropriations lie at the core of the administrative state and are be­com­ing increasingly important as deep partisan divides have stymied sub­stan­tive legislation. Both Congress and the President exploit appropria­tions to control government and advance their policy agendas, with the border wall battle being just one of several recent high-profile examples. Yet in public law doctrine, appropriations are ignored, pulled out for spe­cial legal treatment, or subjected to legal frameworks ill-suited for appro­priations realities. This Article documents how appropriations are mar­ginalized in a variety of public law contexts and assesses the reasons for this unjustified treatment. Appro­priations’ doctrinal marginalization does not affect the political branches equally, but instead enhances executive branch and presidential power over appropriations at the expense of Congress. Yet legal doctrines governing ap­propriations should have the opposite effect because constitutional text, struc­ture, and history make clear the central importance of Congress’s appropria­tions power. Appro­priations’ doctrinal marginalization undermines the sep­aration of powers even further by undercutting political accountability through Congress and creating de facto presidential spending authority, with the executive branch able to violate governing statutes on appropriations with minimal legal consequences. This Article then turns to the question of what taking appropriations seriously might mean for public law doctrine. It concludes that appropriations exceptionalism is not problematic if it reflects the re­alities of the appropriations process and does not downplay appropria­tions’ significance. Doctrines should attend to the separation of powers dynam­ics raised by appropriations and reinforce Congress’s power of the purse. Among other consequences, this leads to jurisdictional doctrines that put primacy on congressional enforcement of appropriations limits in court.

Comments

This article originally appeared in 121 Colum. L. Rev. 1075 (2021). Reprinted by permission.

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