Congress’s Power Over Appropriations: Constitutional and Statutory Provisions

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Congress’s Power Over Appropriations:

Constitutional and Statutory Provisions

June 16, 2020

Congressional Research Service

https://crsreports.congress.gov

R46417

SUMMARY

Congress’s Power Over Appropriations:

Constitutional and Statutory Provisions

R46417

June 16, 2020

Sean M. Stiff

A body of constitutional and statutory provisions provides Congress with perhaps its most

Legislative Attorney

important legislative tool: the power to direct and control federal spending. Congress’s “power of

the purse” derives from two features of the Constitution: Congress’s enumerated legislative

powers, including the power to raise revenue and “pay the Debts and provide for the common

Defence and general Welfare of the United States,” and the Appropriations Clause. This latter

provision states that “No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law.”

Strictly speaking, the Appropriations Clause does not provide Congress a substantive legislative power but rather constrains

government action. But because Article I vests the legislative power of the United States in Congress, and Congress is

therefore the moving force in deciding when and on what terms to make public money available through an appropriation, the

Appropriations Clause is perhaps the most important piece in the framework establishing Congress’s supremacy over public

funds.

The Supreme Court has interpreted and applied the Appropriations Clause in relatively few cases. Still, these cases provide

important fence posts marking the extent of Congress’s power of the purse. The Court’s cases explain Congress’s discretion

to decide whether to pay, through an appropriation, asserted debts owed to third parties. The Court’s cases also establish that

executive branch officials may not exercise constitutional or statutory powers to compel, directly or indirectly, payments

from the Treasury absent an appropriation passed by Congress, and the Court’s cases also provide support for the proposition

that officials in the executive branch may not refuse to obligate funds when Congress has so mandated. Congress’s

appropriations function has its limits, though. For one, the Court has held that the Clause does not apply to funds until they

are deposited in the Treasury. The Constitution may also constrain Congress’s authority to control the other branches through

its appropriations power, either through particular constitutional provisions or because of the Constitution’s framework of

separate and coequal branches.

Congress has not rested on the text of the Appropriations Clause, alone, to guard funds meant for or contained in the

Treasury. Instead, Congress has chosen to enforce the Clause through a series of generally applicable fiscal control statutes,

some of which practitioners and the Courts commonly refer to by informal names. These statutes govern federal funds from

initial receipt through obligation and expenditure. Included among these statutes, the Miscellaneous Receipts Act requires

agencies to deposit “as soon as practicable” any “money for the Government” that they receive, so that agencies remain

dependent on Congress for budget authority. The Purpose Statute limits an agency’s use of appropriations to only those

“objects for which the appropriations were made,” and a body of decisions explains how an agency may determine the

express and implied authority that flows from a given appropriation. Congress also controls agency spending in how it

structures appropriations and then, through transfer and reprogramming authority, constrains the agency’s authority to

allocate funds between or within appropriations. The Antideficiency Act prohibits obligations or expenditures that exceed an

agency’s total budget authority or violate a cap, condition, or other limitation placed on the agency’s use of budget authority.

Finally, the Impoundment Control Act limits the executive branch’s ability to withhold budget authority from being available

for obligation or expenditure, ensuring that agencies implement the budget authority that Congress has conferred.

Besides these generally applicable fiscal control statutes, Congress controls Treasury funds through the text of annual,

supplemental, and continuing appropriations acts themselves or in other provisions of statute that Congress passes in

authorizing acts, apart from its periodic appropriations measures. Congress specifies the amount and objects of

appropriations, but as important, Congress places requirements, called conditions, limitations, or appropriation riders, on the

executive branch’s use of appropriations. Because it takes money to govern, Congress’s use of appropriation riders has the

potential to shape executive power in important ways. As a result, the executive branch scrutinizes limits placed on

appropriated funds and sometimes identifies riders that, according to the executive branch, are not controlling because the

rider allegedly exceeds Congress’s legislative power. An understanding of the executive branch “precedent” on appropriation

riders can help identify those likely to spark constitutional objections.

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Congress’s Power Over Appropriations: Constitutional and Statutory Provisions

Contents

Overview of Key Terms and Concepts ............................................................................................ 3

The Appropriations Clause: Historical Background ........................................................................ 7

Supreme Court Interpretation ........................................................................................................ 10

Effects on Private Parties .........................................................................................................11

Effects on Executive Power .................................................................................................... 13

The Appropriations Clause’s Limits ....................................................................................... 17

Congress’s Fiscal Control Statutes ................................................................................................ 21

The Miscellaneous Receipts Act (MRA) ................................................................................ 22

The Purpose Statute................................................................................................................. 27

Transfers and Reprogramming ................................................................................................ 32

The Antideficiency Act ........................................................................................................... 39

Limits on Obligations or Expenditures ............................................................................. 39

Apportionments and Reserves .......................................................................................... 43

Antideficiency Act Penalties ............................................................................................. 44

The Impoundment Control Act ............................................................................................... 46

Background ....................................................................................................................... 47

Rescissions ........................................................................................................................ 49

Deferrals............................................................................................................................ 52

Congressional Action and GAO Oversight ....................................................................... 54

Appropriation Riders ..................................................................................................................... 57

Considerations for Congress.......................................................................................................... 61

Appendixes

Appendix. Glossary ....................................................................................................................... 63

Contacts

Author Information........................................................................................................................ 64

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Congress’s Power Over Appropriations: Constitutional and Statutory Provisions

body of constitutional and statutory provisions provides Congress with perhaps its most

important legislative tool: the power to direct federal spending. Known as Congress’s

“power of the purse,”1 the power flows, in part, from those legislative authorities

enumerated in Article I, Section 8, including Congress’s authority under the Spending Clause to

raise revenue and “pay the Debts and provide for the common Defence and general Welfare of the

United States.”2 The Spending Clause power complements, and in some cases enhances,

Congress’s other enumerated legislative authorities.3 Congress has the authority to determine

what constitutes the “general Welfare” and then allocate public money to advance the cause it has

selected.4 Because the Constitution grants Congress the spending power, the document’s other

provisions provide the only legal constraints upon the exercise of that power.5

A

As broad as the Spending Clause power is, it perhaps is not the most important feature of

Congress’s power of the purse. One could devise a system of government in which the legislature

and the executive each exercise independent control over revenue and spending. At the time of

the Founding, England was not far removed from the days when the monarch claimed (though not

without controversy) the right to levy new taxes on his own initiative6 and had general freedom to

dispose of hereditary revenues.7 In continental Europe, monarchs had even more freedom to tax

and spend.8 The Spending Clause power, on its own, may not have necessarily foreclosed an

American President from asserting that the executive branch shares access to the federal purse

strings because of the powers otherwise vested in the Executive by the Constitution. The striking

feature of Congress’s power of the purse is not so much that Congress has access to the purse

1 See THE FEDERALIST NO. 58, at 359 (James Madison) (Clinton Rossiter ed., 1961) (“This power over the purse may,

in fact, be regarded as the most complete and effectual weapon with which any constitution can arm the immediate

representatives of the people, for obtaining a redress of every grievance, and for carrying into effect every just and

salutary measure.”).

2 U.S. CONST. art. I, § 8, cl. 1 (“The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises,

to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts

and Excises shall be uniform throughout the United States.”). This Clause is sometimes known as the Taxation Clause

or the General Welfare Clause.

3 United States v. Butler, 297 U.S. 1, 66 (1936) (“[T]he power of Congress to authorize expenditure of public moneys

for public purposes is not limited by the direct grants of legislative power found in the Constitution.”). Butler marked a

turning point. For nearly 150 years, courts debated whether the Spending Clause permits only spending in aid of

another of Congress’s enumerated powers (the view perhaps most notably advanced by James Madison) or whether,

more broadly, the Spending Clause is itself legislative power to raise and spend to advance the general welfare (a view

prominently championed by Alexander Hamilton). Butler embraced the Hamiltonian view. See CRS Report R45323,

Federalism-Based Limitations on Congressional Power: An Overview, coordinated by Andrew Nolan and Kevin M.

Lewis, at 4–5.

4 See Buckley v. Valeo, 424 U.S. 1, 90 (1976) (per curiam) (“It is for Congress to decide which expenditures will

promote the general welfare.”).

5 Id. at 91 (“Any limitations upon the exercise of [the Spending Clause] power must be found elsewhere in the

Constitution.”).

6 See, e.g., 1 A COMPLETE COLLECTION OF STATE-TRIALS AND PROCEEDINGS FOR HIGH-TREASON, AND OTHER CRIMES

AND MISDEMEANOURS; FROM THE REIGN OF KING RICHARD II TO THE REIGN OF KING GEORGE II, 509–10 (Sollom Emyln

ed., 1742) (answer of the Judges to King Charles I) (opining that in times of peril the King had unreviewable authority

to levy “ship-money” taxes, including in inland counties where no prior monarch had sought ship-money, to finance the

building and manning of ships of war).

7 PAUL EINZIG, THE CONTROL OF THE PURSE: PROGRESS AND DECLINE OF PARLIAMENT’S FINANCIAL CONTROL 119 (1959)

(“Apart from a few exceptions, before 1688 Kings had reasonable freedom to spend their hereditary revenue without

effective interference by Parliament.”).

8 Hans Baade, Mandatory Appropriations of Public Funds: A Comparative Study, Part I, 60 VA. L. REV. 393, 422–23

(1974) (explaining that because the Estates General granted the kings of France permanent sources of revenue, the

House of Bourbon was able to rule for 175 years, from 1614 to 1789, without once convening the Estates).

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Congress’s Power Over Appropriations: Constitutional and Statutory Provisions

strings; it is that, as generally understood, Congress alone has access.9 Thus, the “bedrock powerof-the-purse provision” is arguably the Appropriations Clause rather than the Spending Clause.10

The Appropriations Clause specifies that “No Money shall be drawn from the Treasury, but in

Consequence of Appropriations made by Law.”11 By its terms, the Clause requires legislative

authorization before money may be withdrawn from the Treasury. This requirement greatly

augments Congress’s enumerated legislative powers.12 Congress can craft the terms of

appropriations or deny appropriations outright,13 subject only to the President’s limited

constitutional role in the lawmaking process.14

Using this broad legislative power, for more than two centuries Congress has appropriated funds

for use by the executive branch. In the process, Congress encountered various executive branch

practices that tended to undermine Congress’s control of the purse strings. Agencies augmented

their own budgets by retaining and using public money;15 obligated an appropriation beyond its

purpose;16 wrested greater funding from Congress by spending all that Congress had appropriated

previously or obligated for purposes not permitted by the appropriation;17 and refused to obligate

funds to advance policies with which a President disagreed.18 In response to each of these

practices, Congress adopted a series of generally applicable “fiscal control” statutes designed to

tighten its hold on the purse strings.

Congress has also exerted control over the purse strings through the terms of appropriations acts

themselves. When providing the executive branch with statutory authority to obligate Treasury

funds, Congress may attach a condition, limitation, or requirement—referred to in this report as a

rider19—to this grant. The appropriation rider either requires budget authority to be obligated in a

9 For prominent, contrasting views of the appropriations clause, compare Kate Stith, Congress’ Power of the Purse, 97

YALE L.J. 1343, 1356 (1988), (arguing that the Appropriations Clause institutes a “Principle of Appropriations Control”

by which “[a]ll expenditures from the public fisc must be made pursuant to a constitutional Appropriation made by

Law” (internal quotation marks omitted)), with George J. Sidak, The President’s Power of the Purse, 1989 DUKE L.J.

1162, 1194 (1989) (arguing that absent congressional appropriations “the President has an implied power to incur

claims against the Treasury to the extent minimally necessary to perform his duties and exercise his prerogatives under

article II”).

10 Zachary S. Price, Funding Restrictions and Separation of Powers, 71 VAND. L. REV. 357, 366 (2018).

11 U.S. CONST. art. I, § 9, cl. 7.

12 Cf. Sidak, supra note 9, at 1165 (noting that under a broad reading of the Appropriations Clause, which Sidak rejects,

one could claim that “because it takes money to make public goods, Congress is entitled to regulate” how the other

branches perform their separate constitutional functions).

13 Rust v. Sullivan, 500 U.S. 173, 195 n.4 (1991) (“We have recognized that Congress’ power to allocate funds for

public purposes includes an ancillary power to ensure that those funds are properly applied to the prescribed use.”).

14 U.S. CONST. art. I, § 7, cls. 2–3 (describing the presentment process by which bills, “Order[s], Resolution[s], or

Vote[s]” passed by or concurred in by both houses of Congress are presented to the President for signature or

disapproval through veto and the two-thirds majority of both houses required to override a presidential veto).

15 See infra notes 199–200 and text.

16 See infra notes 241–247 and text.

17 See infra notes 339–342 and text.

18 See infra notes 405–410 and text.

19 The phrase appropriation rider does not have a particular statutory meaning, but the Government Accountability

Office (GAO) has defined the phrase to have one of two meanings. First, the phrase may be used to refer to “a

limitation or requirement in an appropriation act.” See GOV’T ACCOUNTABILITY OFFICE, A GLOSSARY OF TERMS USED IN

THE FEDERAL BUDGET PROCESS, GAO-05-734SP, at 14 (2005) [hereinafter GAO GLOSSARY] (“appropriation rider”)

(“Sometimes used to refer to . . . a limitation or requirement in an appropriation act.”); see also Maine Cmty. Health

Options v. United States, 140 S. Ct. 1308, 1317 (2020) (referring to limitations within appropriations acts as riders).

Second, the phrase may refer to “a provision that is not directly related to the appropriation to which it is attached.”

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particular way or for a particular purpose, or denies budget authority for particular uses.

Congress’s choice of appropriations rider may be as important in shaping interbranch relations as

the choice to provide funds in the first place. Congress’s riders may also become a source of

friction between the branches.20

Congress’s appropriations power creates a complex framework of legal rules governing the

federal government’s handling of public funds, from receipt through obligation and expenditure.

When Congress creates new programs, provides new budget authority, or conducts oversight of

existing programs and funding, this legal framework sets the extent of an agency’s authority over

public money. This report summarizes this critical legal framework. It begins by discussing key

terms and concepts, which are collected, along with other terms defined throughout this report, in

the report’s glossary Appendix. The report then briefly traces the Appropriations Clause from its

roots in the English legal tradition. Next, the report examines a selection of Supreme Court cases

that have examined this important provision. The report then discusses key portions of Congress’s

fiscal control statutes, including the Miscellaneous Receipts Act, the Purpose Statute, transfer

statutes and reprogramming authority, the Antideficiency Act, and the Impoundment Control

Act.21 The report concludes by examining the executive branch’s approach to assessing whether,

in the opinion of the executive branch, an appropriations rider exceeds Congress’s power and the

types of riders most likely to evoke an objection from the executive branch.

Overview of Key Terms and Concepts

Like many other areas of law, federal appropriations law has its special terminology. Budget

authority is a key concept. Budget authority is “the authority provided by Federal law to incur

financial obligations.”22 With budget authority, an officer or employee may incur a financial

obligation on behalf of the federal government.23 Congress provides budget authority in several

forms, from borrowing authority,24 to contract authority,25 to an appropriation.26 Budget authority

GAO GLOSSARY at 14. As noted above, this report uses the first meaning of the phrase and not its second meaning.

20 See infra notes 487–519 and text.

21 As explained above, this report focuses on appropriation law matters. For a discussion of the federal budget process

and, more specifically, the rules and practices for the consideration of appropriations measures, see CRS Report

R46240, Introduction to the Federal Budget Process, by James V. Saturno; and CRS Report R42388, The

Congressional Appropriations Process: An Introduction, coordinated by James V. Saturno.

22 2 U.S.C. § 622(2).

23 See Maine Cmty. Health Options, 140 S. Ct. at 1322 (“Budget authority is an agency’s power provided by Federal

law to incur financial obligations . . . . (internal quotation marks omitted)). Rather than provide budget authority to an

agency, Congress may itself “create an obligation directly by statute,” even if, in creating an obligation, Congress does

not also appropriate funds to satisfy the obligation. Id. at *7 (noting that Congress need not “provid[e] details about

how [an obligation] must be satisfied” in order for the text of a statute to create an obligation).

24 2 U.S.C. § 622(2)(A)(ii) (borrowing authority) (“authority granted to a Federal entity to borrow and obligate and

expend the borrowed funds, including through the issuance of promissory notes or other monetary credits”).

25 Id. § 622(2)(A)(iii) (contract authority) (“the making of funds available for obligation but not for expenditure”).

Contract authority, alone, only allows an agency to incur an obligation. Contract authority “requires a subsequent

appropriation or some other source of funds before the obligation incurred may actually be liquidated by the outlay of

monies.” Nat’l Ass’n of Reg’l Councils v. Costle, 564 F.2d 583, 586 (D.C. Cir. 1977).

26 Id. § 622(2)(A)(i). To be precise, an appropriation usually “is not a designation of any particular pile of coin or roll

of notes to be set aside and held for that purpose, and to be used for no other.” Hukill v. United States, 16 Ct. Cl. 562,

565 (1880). Rather, an appropriation is authority to obligate the federal government and draw sums from the Treasury

to satisfy the obligation. See Ains, Inc. v. United States, 56 Fed. Cl. 522, 537 (Ct. Cl. 2003). This report’s use of

colloquial references for appropriations, such as “appropriated funds,” should be understood in this light.

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is typically defined according to the purposes for which it is available, its amount (i.e., a definite

or indefinite sum), the time period in which it is obligated (i.e., available for obligation for one

year, multiple years, or without time period limitation), and whether the authority is current-year

or permanent authority.27 Budget authority may be classified as either discretionary spending28 or

mandatory spending.29

An appropriation is authority to incur obligations and draw money from the Treasury for a

particular purpose.30 Congress has by statute provided a rule of construction to determine whether

or not the language of a statute provides an appropriation: “A law may be construed to make an

appropriation out of the Treasury . . . only if the law specifically states that an appropriation is

made . . . .”31 The Government Accountability Office (GAO) has interpreted Congress’s rule of

construction to not require specific use of the term appropriation or some form of that word for a

statute to function as an appropriation. Instead, GAO understands Congress to make an

appropriation whenever it provides “a specific direction to pay” and “a designation of the [f]unds

to be used” for the payment.32 When a statue includes a “mere authorization,” though, that is not

enough to constitute an appropriation.33 Courts have not implied or inferred appropriations from

statutes that lack an express reference to the making of an appropriation or a specific direction to

pay designated funds.34

As noted above, Congress’s grant of budget authority allows an individual to obligate the United

States. An obligation is a “definite commitment that creates a legal liability of the government for

the payment of goods and services ordered or received, or a legal duty on the part of the United

States that could mature into a legal liability” as a result of the action of a third party that is

beyond the United States’ control.35 In other words, the federal government incurs an obligation

when it takes the last action required of the federal government to create a legal liability.36

27 See GAO GLOSSARY, supra note 19, at 23.

28 See id. (“‘Mandatory spending,’ also known as ‘direct spending,’ refers to budget authority that is provided in laws

other than appropriation acts and the outlays that result from such budget authority.” Mandatory spending includes

entitlement authority and interest payments on public debt.).

29 See id. (“‘Discretionary spending’ refers to outlays from budget authority that is provided in and controlled by

appropriation acts.”).

30 GOV’T ACCOUNTABILITY OFFICE, PRINCIPLES OF FEDERAL APPROPRIATIONS LAW, GAO-16-464SP, at ch. 2, p. 2–3

(4th ed., 2016) [hereinafter GAO REDBOOK], https://www.gao.gov/assets/680/675709.pdf (“[A]n appropriation is a law

authorizing the payment of funds from the Treasury.”); see also 2 U.S.C. § 622(2)(A)(i) (defining budget authority to

include “provisions of law that make funds available for obligation and expenditure (other than borrowing authority)”);

see also 31 U.S.C. § 701(2). The GAO Redbook is a well-respected treatise on federal appropriations law matters, and

courts occasionally cite the GAO Redbook when deciding cases. See, e.g., Me. Cmty. Health Options v. United States,

140 S. Ct. 1308, 1319 (2020) (citing the GAO Redbook for the proposition that the “authority to incur obligations by

itself is not sufficient to authorize payments from the Treasury”).

31 31 U.S.C. § 1301(d).

32 To the Honorable Mark O. Hatfield, United States Senate, B-214196, 63 Comp. Gen. 331, 335 (Apr. 30, 1984)

(concluding a statute provided a permanent appropriation of funds for military retirement and survivor benefit

programs even though the statute did not use the word “appropriation”).

33 Id.

34 See United States House of Representatives v. Burwell, 185 F. Supp. 3d 165, 169 (D.D.C. 2016) (“An appropriation

must be expressly stated; it cannot be inferred or implied.”).

35 GAO GLOSSARY, supra note 19, at 70.

36 For example, when an agency enters into a binding grant agreement, an obligation arises. See, e.g., Obligational

Practices of the Corporation for National and Community Service, B-300480, 2003 WL 1857402, at *3–4 (Comp. Gen.

Apr. 9, 2003).

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Generally speaking, congressional rules in the House of Representatives and the Senate establish

a presumption that Congress will follow a two-step process when it allows agencies to obligate

and spend funds for a given purpose, though Congress is free to take both of these general steps at

the same time.37 First, Congress might enact an authorization statute, which provides an agency

with “program authority,” an “authoriz[ation] [of] an appropriation,” or both.38 Second, Congress

might enact an appropriation for that program. Typically, Congress will provide only

appropriations that have already been authorized; House and Senate rules generally prohibit

appropriations for purposes that have not already been authorized.39 In both chambers, though,

these rules are not self-enforcing, meaning that they only make an offending appropriation subject

to a point of order. If no member raises a point of order, if the chamber does not sustain a point of

order that is raised, or if the chamber waives the application of the rules, they would not impede

the appropriation from being enacted into law and, later, obligated or expended by an agency.40

Congress commonly appropriates funds where an authorization for that appropriation has

lapsed,41 and agencies are free to obligate such appropriations.42 That said, Congress’s

authorization function does shape agency authority to obligate Treasury funds. An agency may

perform only those functions for which it has received statutory authority in some form.43

Beyond these key terms, Congress has enacted a statute requiring agencies to speak a common

language when addressing budget matters. The GAO is an arm of the legislative branch,44 headed

by the Comptroller General of the United States.45 Federal law tasks GAO with establishing

“standard terms and classifications for fiscal, budget, and program information of the

37 See, e.g., Coronavirus Aid, Relief, and Economic Security Act, Pub. L. No. 116-136, Div. A, Title V, § 5001 (2020)

(authorizing the Coronavirus Relief Fund program and appropriating $150 billion for allocation to states, the District of

Columbia, territories, tribal governments, and local governments).

38 GAO GLOSSARY, supra note 19, at 15 (noting that the term authorization may describe “legislation enacting new

program authority” or “legislation authorizing an appropriation”).

39 See CONSTITUTION, JEFFERSON’S MANUAL, AND RULES OF THE HOUSE OF REPRESENTATIVES OF THE UNITED STATES

ONE HUNDRED SIXTEENTH CONGRESS, H.DOC. NO. 115-177, at Rule XXI, cl. 2(a)(1) (2019) (“An appropriation may not

be reported in a general appropriation bill, and may not be in order as an amendment thereto, for an expenditure not

previously authorized by law, except to continue appropriations for public works and objects that are already in

progress.”); STANDING RULES OF THE SENATE, S.DOC.NO. 113-18, at Rule XVI, cl. 1 (2013) (making subject to a point

of order an appropriation bill or amendment to an appropriation bill containing appropriations that are not “made to

carry out the provisions of some existing law, or treaty stipulation, or act or resolution passed by the Senate during that

session”).

40 Envirocare of Utah, Inc. v. United States, 44 Fed. Cl. 474, 483 (Ct. Cl. 1999) (“[T]hese rules are not self-enforcing.

Rather, they merely subject the offending provision to a point of order and do not affect the legislation’s validity if the

point of order is not raised (or is raised and not sustained) prior to enactment.”).

41 See, e.g., CONG. BUDGET OFFICE, EXPIRED AND EXPIRING AUTHORIZATIONS AND APPROPRIATIONS: FISCAL YEAR 2020,

at 1–2 (2020) (estimating that Congress appropriated $332 billion in FY2020 related to 1,046 authorizations of

appropriations that had expired “before the beginning of [FY] 2020”).

42 See Matter of Civil Rights Commission, B-246541, 71 Comp. Gen. 378, 380 (Apr. 29, 1992) (“There is no general

requirement, either constitutional or statutory, that an appropriation act be preceded by a specific authorization act. A

statute imposing substantive functions upon an agency which require funding for their performance provides the

agency with the authority necessary to perform the functions.”).

43 See Availability of Appropriations for Soc. Sec. Admin. Grant Programs Following the Expiration of Authorizations

of Appropriations, 2013 WL 11105737, at *5 (O.L.C. Feb. 4, 2013) (“[I]t is axiomatic that an agency must have legal

authority to perform its functions and, if it is to spend public monies, appropriated funds.”) (internal quotation marks

omitted)).

44 See Bowsher v. Synar, 478 U.S. 714, 746 n.11 (1986) (“[T]he Comptroller General and the GAO are functionally

equivalent to congressional agents such as the Congressional Budget Office, the Office of Technology Assessment, and

the Library of Congress’ Congressional Research Service.”).

45 31 U.S.C. § 702(b).

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Congress’s Power Over Appropriations: Constitutional and Statutory Provisions

Government” in consultation with relevant legislative and executive branch agencies.46 Before

GAO’s standard set of terms existed, agencies reported budget information to Congress using a

“maze of classification schemes and systems,” which made it difficult for Congress to understand

and compare, between agencies, the information it received.47 Agencies thus must use GAO’s

terms when “providing fiscal, budget, and program information to Congress.”48 GAO’s standard

terms appear in its publication, A Glossary of Terms Used in the Federal Budget Process.49

GAO’s service in this regard is only one piece of the prominent role that it plays in the

development of federal appropriations law. GAO investigates on Congress’s behalf “all matters

related to the receipt, disbursement, and use of public money.”50 Executive branch officials

charged with disbursing public funds may also request a decision from GAO on whether the law

allows a proposed expenditure.51 GAO’s investigations and decisions create an extensive body of

decisions discussing and applying federal appropriations law. The executive branch and the

federal courts often consider GAO’s views when deciding whether (for example) an obligation is

lawful.52 But neither the executive branch nor the federal judiciary considers GAO’s opinions to

be controlling. When GAO’s view on an appropriations law question clashes with that of the

executive branch, “historically, the executive branch has not considered itself bound by” GAO’s

opinions.53 And the federal courts have the “last word” when deciding the legal questions raised

by the cases that come before them.54

46 Id. § 1112(c)(1).

47 S. COMM. ON GOV’T OPERATIONS, FEDERAL ACT TO CONTROL EXPENDITURES AND ESTABLISH NATIONAL PRIORITIES,

S.REP. NO. 93-579, at 70–71 (1973).

48 31 U.S.C. § 1112(d).

49 See GAO GLOSSARY, supra note 19.

50 31 U.S.C. § 712(1).

51 Id. § 3529(a).

52 See, e.g., U.S. Dep’t of the Navy v. Fed. Labor Rels. Auth., 665 F.3d 1339, 1349–50 (D.C. Cir. 2012) (Kavanaugh,

J.) (surveying GAO decisions on the Purpose Statute and the necessary expense doctrine); Applicability of the

Antideficiency Act to a Violation of a Condition or Internal Cap Within an Appropriation, 25 Op. O.L.C. 33, 52 (2001)

(considering GAO’s past interpretations of the Antideficiency Act).

53 Detail of Law Enforcement Agents to Congressional Committees, 12 Op. O.L.C. 184, 185 n.3 (1988) (further noting

that “[t]he Comptroller General is an officer of the legislative branch”). And in fact, GAO and the executive branch

have disagreed about aspects of federal appropriations law. See, e.g., infra notes 347–355 and text (discussing GAOexecutive branch disagreements over the scope of the Antideficiency Act); see also Executive Impoundment of

Appropriated Funds: Hearings Before the Subcomm. on Separation of Powers of the S. Comm. on the Judiciary, 92nd

Cong. 240 (1971) [hereinafter 1971 Impoundment Hearings] (testimony of W. Rehnquist, Assistant Attorney General,

Office of Legal Counsel, Department of Justice) (“Traditionally, there has been rivalry between the Comptroller

General and the Attorney General.”).

54 Scheduled Airlines Traffic Offenses, Inc. v. Dep’t of Def., 87 F.3d 1356, 1361 (D.C. Cir. 1996) (internal quotation

marks omitted).

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Key Takeaways: Terms and Concepts

Congress grants budget authority by statute, permitting individuals to incur obligations on behalf of the

United States.

An appropriation is one type of budget authority and permits an agency to draw money from the Treasury.

GAO often issues decisions, opinions, and other publications that contribute to the development of

appropriations law. GAO’s views do not bind the courts or the executive branch, but GAO’s views are often

consulted by the other branches.

The Appropriations Clause: Historical Background

Article I of the Constitution vests in Congress “all legislative Powers” granted by the

Constitution.55 Many of Congress’s powers are set forth in the 18 clauses of Article I, Section 8,

such as the power to regulate interstate and foreign commerce;56 “borrow Money on the credit of

the United States”;57 “establish Post Offices and post Roads”;58 and “declare War” and “raise and

support Armies.”59 Congress also has the authority “[t]o make all Laws which shall be necessary

and proper for carrying into Execution” not only its Article I, Section 8 powers, but also “all other

Powers vested by [the] Constitution in the Government of the United States” or any of its

departments or officers.60

The Appropriations Clause does not appear among these powers. Rather, the Appropriations

Clause appears in Article I, Section 9 of the Constitution, which contains restraints on the federal

government’s powers. Some of Section 9’s provisions are understood to apply to Congress alone,

either because the particular provision refers to Congress61 or because it concerns an action, such

as levying taxes, that, given other provisions of the Constitution, only Congress may perform.62

Other clauses of Section 9 “are expressed in general terms,”63 and thus apply to the federal

government as a whole. The Appropriations Clause is one such government-wide limitation. The

Clause provides: “No Money shall be drawn from the Treasury, but in Consequence of

Appropriations made by Law.”64

Thus, the Appropriations Clause’s fundamental rule is that Congress dictates the purposes for

which money in the Treasury may be expended.65 In adopting this fundamental rule, the Framers

55 U.S. CONST. art. I, § 1.

56 Id. art. I, § 8, cl. 3.

57 Id. cl. 2.

58 Id. cl. 7.

59 Id. cls. 11, 12.

60 Id. cl. 18.

61 See id. § 9, cl. 1 (“The Migration or Importation of such Persons as any of the States now existing shall think proper

to admit, shall not be prohibited by the Congress prior to” 1808 “but a Tax or duty may be imposed on such

Importation, not exceeding ten dollars for each Person.”).

62 Compare id. § 8, cl. 1 (“The Congress shall have Power to lay and collect Taxes . . . .”), with id. § 9, cl. 5 (“No Tax

or Duty shall be laid on Articles exported from any State.”).

63 Barron v. City of Baltimore, 32 U.S. 243, 248 (1833).

64 U.S. CONST. art. I, § 9, cl. 7. This provision also states “and a regular Statement and Account of the Receipts and

Expenditures of all public Money shall be published from time to time.” Id. This Statements-and-Account Clause is not

discussed in this report.

65 See, e.g., Office of Pers. Management v. Richmond, 496 U.S. 414, 424 (1990) (“Our cases underscore the

straightforward and explicit command of the Appropriations Clause. It means simply that no money can be paid out of

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both continued and broke from the English tradition.66 On the one hand, with passage of the Bill

of Rights of 1689, Parliament asserted that it was supreme in directing the use of public funds.67

Parliament claimed that among its ancient “Rights and Liberties” was the rule “that Levying

Money for or to the Use of the Crowne by preten[s]e of Prerogative without Grant of Parl[i]ament

for longer time or in other manner then the same is or shall be granted is Illegal.”68 In other

words, Parliament asserted that any use of funds by the monarch that lacked Parliament’s

authorization was unlawful. The Framers recognized this was a key development in England’s

centuries-long progress toward representative government.69

On the other hand, even into the 18th century, the monarch maintained a measure of financial

independence from Parliament—though far less than that claimed by monarchs of prior

centuries.70 William Blackstone, an English jurist who served as a leading authority on English

law for the Founding generation,71 divided the Crown’s “fiscal prerogatives” in two.72 The King’s

“ordinary” revenue included ancient rights and property, such as the royal demesne (i.e., land held

by the crown and the revenues from it) that once generated significant revenue but, by the

Founding, had “sunk almost to nothing.”73 More significantly, the Crown could draw on

“extraordinary” revenue. Though Parliament granted the Crown this latter revenue stream,

Parliament’s grants could be “perpetual,”74 lasting for the Monarch’s entire reign.75 As a legal

the Treasury unless it has been appropriated by an act of Congress.” (quotation marks omitted)); United States v.

Maccollom, 426 U.S. 317, 321 (1976) (plurality opinion) (“The established rule is that the expenditure of public funds

is proper only when authorized by Congress, not that public funds may be expended unless prohibited by Congress.”).

66 When interpreting constitutional provisions, courts and scholars often consider the English legal tradition at the time

of the Founding. See, e.g., District of Columbia v. Heller, 554 U.S. 570, 593 (2008) (examining the English legal

tradition); Julian Davis Mortenson, Article II Vests the Executive Power, Not the Royal Prerogative, 119 COLUM. L.

REV. 1169, 1191 (2019) (noting that “the political imaginary” of “England’s multicentury wobble toward parliamentary

supremacy” “was deeply entrenched in the Founders’ minds, by way of schoolrooms, the political press, and widely

published histories from authors across the political spectrum.”).

67 The Bill of Rights formalized King William III and Queen Mary II’s joint accession to the throne, formerly Prince

and Princess of Orange. See 1 W. 3 & M. 2, c.2 (1688) (dated under the Old Style calendar), reprinted in 6 STATUTES

OF THE REALM 143 (Alex Luders et al., eds., 1963) (declaring Parliament’s resolve that “William and Mary Prince and

Princess of Orange be and be declared King and Queene of England France and Ireland” and the dominions thereof).

The Act mirrored the Declaration of Right, a document that members of the Convention Parliament presented, along

with the crown, to the then-Prince and Princess of Orange in February 1689. See FREDERIC W. MAITLAND, THE

CONSTITUTIONAL HISTORY OF ENGLAND 281–82 (1919).

68 1 Will. 3 & Mary 2, c.2 (1688), reprinted in 6 STATUTES OF THE REALM, supra note 67, at 142–43. Parliament

charged King James II with violating this ancient right. Id.

69 See THE FEDERALIST NO. 58, at 359 (James Madison) (Clinton Rossiter ed. 1961) (describing control of the “purse”

as “that powerful instrument by which we behold, in the history of the British Constitution, an infant and humble

representation of the people gradually enlarging the sphere of its activity and importance, and finally reducing, as far as

it seems to have wished, all the overgrown prerogatives of the other branches of the government”).

70 See JOSH CHAFETZ, CONGRESS’S CONSTITUTION: LEGISLATIVE AUTHORITY AND THE SEPARATION OF POWERS 46 (2017)

(“Under the Tudors, Parliament was far more deferential to royal authority over expenditures—in [Frederic] Maitland’s

words, it hardly dared to meddle with such matters.” (quotation marks omitted)).

71 Alden v. Me., 527 U.S. 706, 715 (1999) (calling Blackstone “the preeminent authority on English law for the

founding generation”).

72 I WILLIAM BLACKSTONE, COMMENTARIES 271 (1765).

73 Id. at 296.

74 Id. at 297–98.

75 E.g., 1 Ann. 1, c.1 (1702), reprinted in 8 STATUTES OF THE REALM 3, supra note 67 (providing Queen Anne

“Subsidies of Tonnage and Poundage” and other sources of revenue “from and after” the first day of her reign “during

Her Majesties Life”).

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matter, Parliament may have controlled purse strings, but as a practical matter, English monarchs

enjoyed significant financial independence from Parliament.76

The Appropriations Clause also paralleled provisions of state constitutions that existed at the time

of the Constitutional Convention. Nearly all of the states eventually heeded the Second

Continental Congress’s May 1776 call to “adopt such government as shall, in the opinion of the

representatives of the people, best conduce to the happiness and safety of their constituents in

particular, and America in general” by adopting new state constitutions.77 Rhode Island and

Connecticut “retained their colonial charters with only minor modifications as their fundamental

law into the nineteenth century.”78 Most state constitutions in effect in 1789 expressly assigned

the appropriations power to the state legislature.79 Other state constitutions of the period did not

expressly assign an appropriations function to the legislature.80 But no state constitution expressly

allowed a person to draw money from the state treasury without legislative authorization. The

framers of certain state constitutions went further still by redirecting to the state treasury funds

that had been payable to the executive under the colonial system.81 Thus, when the Framers

arrived in Philadelphia in the late spring and early summer of 1787, the general rule in the states

was that control over the expenditure of public funds should rest with the legislature.82

76 See EINZIG, supra note 7, at 119. Indeed, before the Founding, historians contend that the Hanoverian kings used

these revenues to influence members of Parliament. Perversely, then, Parliament’s grants of revenue not only lessened

the Monarch’s reliance on Parliament, the grants became a tool to control Parliament. See id. at 123–26 (concluding

that “there can be little doubt that the general picture of the degree of political corruption during the 18th century was

really substantially as high as contemporary claimed it to be”).

77 1 WORKS OF JOHN ADAMS 217 (Charles Francis Adams, ed., 1856).

78 G. ALAN TARR, UNDERSTANDING STATES CONSTITUTIONS 60 (1998). Connecticut adopted its first Constitution in

1818. See CONN. CONST. of 1818. Rhode Island followed suit in 1842. See R.I. CONST. of 1842.

79 See DEL. CONST. of 1776, art. VII (providing for the appointment of a “chief magistrate” empowered to “draw for

such sums of money as shall be appropriated by the general assembly, and be held accountable to them for the same”);

MD. CONST. OR FORM OF GOV’T of 1776, at XX–XXI (specifying that the House of Delegates would originate all

“money bills,” a term defined to include all bills “appropriating money in the treasury” or otherwise providing supplies

“for the support of the government”); MASS. CONST. of 1780, ch. 2, § 1, art. XI (“(No moneys shall be issued out of the

treasury of this Commonwealth, and disposed of . . . but by warrant, under the hand of the Governour for the time

being, with the advice and consent of the council, for the necessary defen[s]e and support of the Commonwealth; and

for the protection and preservation the inhabitants thereof, agreeably to the act and resolves of” Massachusetts’s state

legislature, “the General Court”); N.H. CONST. of 1783, pt. 2, reprinted in THE PERPETUAL LAWS OF THE STATE OF NEWHAMPSHIRE 16 (John Melcher, ed., 1789) (substantially similar language to that of Massachusetts Constitution of

1780); N.C. CONST. of 1776, § 19 (“That the governor for the time being, shall have the power to draw for and apply

such sums of money as shall be voted by the general assembly for the contingencies of government, and be accountable

to them for the same”); PA. CONST. of 1776, § 20 (providing that president and the president’s council “may draw upon

the treasury for such sums as shall be appropriated by the house”); S.C. CONST. of 1778, art. XVI (directing that no

“money be drawn out of the public treasury but by the legislative authority of the state”).

80 See GA. CONST. of 1777; NJ. CONST. of 1776; N.Y. CONST. of 1777; VA. CONST. of 1776. That said, some of these

state constitutions dealt with the issue tangentially, expressly referencing the procedure for passing “money bills.” E.g.,

N.J. CONST. of 1776, VI; Va. CONST. of 1776, VIII.

81 See MD. CONST. OR FORM OF GOV’T of 1776, at LVIII (“[A]ll penalties and forfeitures, heretofore going to the King

or proprietary, shall go to the State—save only such, as the General Assembly may abolish or otherwise provide for.”);

PA. CONST. of 1776, § 33 (“All fees, licence money, fines and forfeitures heretofore granted, or paid to the governor, or

his deputies for the support of government shall hereafter be paid to the public treasury, unless altered or abolished by

the future legislature.”); VA. CONST. of 1776, XX (“All escheats, penalties, and forfeitures heretofore going to the King,

shall go to the Commonwealth, save only such as the Legislature may abolish, or otherwise provide for.”).

82 See Gerhard Casper, Appropriations of Power, 13 UALR. L.J. 1, 4–8 (1990) (explaining that “during the founding

period money matters were primarily thought of as a legislative prerogative”).

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Perhaps for this reason, the Appropriations Clause attracted little debate at the Constitutional

Convention. When deliberating over the Clause, the Framers debated only whether the Senate—

then conceived as a body whose members the states would elect—would have the power to

originate or amend appropriation bills.83 The first proposal mentioning Congress’s appropriations

function stated that “all Bills for raising or appropriating money . . . shall originate in the first

Branch of the Legislature, and shall not be altered or amended by the second Branch.”84 This first

proposal continued: “and that no money shall be drawn from the public Treasury but in pursuance

of appropriations to be originated in the first Branch.”85 Eventually, the delegates removed

limitations on Senate origination and amendment of appropriations bills and settled on the text of

the current Clause.86

One particular instance of Congress’s appropriations power did draw debate. Early on, the

Framers proposed assigning to Congress the power to raise armies.87 Some delegates feared large

standing armies in times of peace, and thus proposed ways to constrain the size of a peacetime

army.88 Other delegates noted that “preparations for war are generally made in peace,” and urged

colleagues to avoid unduly limiting Congress’s ability to prepare for war during times of peace.89

The delegates eventually agreed that Congress could not make an appropriation for the Army

lasting longer than two years.90 The Constitution thus provides that Congress may “raise and

support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two

Years.”91 Alexander Hamilton explained that this provision, commonly referred to as the Army

Clause, would require Congress “to deliberate upon the propriety of keeping a military force on

foot” at least once every two years, “come to a new resolution on the point,” and “declare their

sense of the matter by a formal vote in the face of their constituents.”92 Thus, Congress could not

abdicate to the President the decision of whether to maintain armies.93

Supreme Court Interpretation

The Supreme Court has construed the Appropriations Clause in relatively few cases. Still, these

cases set forth important principles governing the Clause’s application, marking the potential

power of the Appropriations Clause as well as its potential limits. The Court’s cases, a selection

83 1 THE RECORDS OF THE FEDERAL CONVENTION OF 1787, at 544–45 (Max Farrand ed., 1911).

84 Id. at 524. In the draft text quoted above, the Framers used the terms “first Branch” and “second Branch” to refer to

the House and Senate, respectively. Id.

85 Id.

86 2 THE RECORDS OF THE FEDERAL CONVENTION OF 1787, supra note 83, at 610 & n.2, 618–19.

87 E.g., 1 THE RECORDS OF THE FEDERAL CONVENTION OF 1787, supra note 83, at 143.

88 E.g., id. at 329 (Eldridge Gerry) (proposing a numerical cap on troop strength in times of peace).

89 Id. at 330 (Jonathan Dayton).

90 See id. at 508–09. Criticism remained of this proposal during the Convention. See id. at 509 (Eldridge Gerry)

(reiterating his call for a numerical cap on troop strength, urging a one-year limitation on Army appropriations, and

criticizing the two-year proposal as “dangerous to liberty”). During the ratification debates that followed the

Convention’s close, opponents of ratification pointed to the Army Clause as one of its alleged flaws. See, e.g., Essays

by a Farmer (1788), reprinted in 5 THE COMPLETE ANTI-FEDERALIST 1.42–1.43 (Herbert Storing ed., 1981)

(cataloguing features of the English system of government that guarded against “the evils and dangers” of a peacetime

army and arguing the then-proposed U.S. Constitution lacked similar protections) (“In England, the appropriation of

money for the support of their army must be from year to year; in America it may be for double the period.”).

91 U.S. CONST. art. I, § 8, cl. 12.

92 THE FEDERALIST NO. 26, at 171 (Alexander Hamilton) (Clinton Rossiter ed., 1961).

93 Id.

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of which are discussed below, provide guidance on how the Appropriations Clause affects the

rights of private parties as against the federal government; how the Clause limits the powers of

the executive branch; and the express and implied limits on Congress’s ability to control the other

branches using its appropriations power.

Effects on Private Parties

The Supreme Court has most often construed the Appropriations Clause in the context of claims

against the government to compel payment of alleged debts. In its “very first Appropriations

Clause decision,”94 Reeside v. Walker,95 the Court held that a private party may force the federal

government to pay an asserted debt or obligation only when Congress has appropriated funds to

pay the debt. There, the widow of a government contractor brought a claim for “set-off” and

received a jury verdict stating that the federal government owed her deceased husband roughly

$190,000.96 Having obtained what she thought to be a judgment against the United States, the

widow petitioned for a writ of mandamus in federal court, asserting that the Secretary of the

Treasury had a clear legal duty to pay the debt.97 Lower courts denied her request.

The Court affirmed, deciding that the widow had prematurely brought her petition. The jury’s

verdict had not led to a final judgment, and even if it had, the judgment would “merely lay[] the

foundation for” further proceedings to collect on the judgment.98 The Court then noted roadblocks

to recovery that would arise even with a final judgment.99 “[O]f peculiar importance” to the

Court, no statute authorized the Secretary to pay the deceased husband’s debt.100 As a result, not

only would the widow be unable to identify a clear legal duty on the government’s part to pay her

deceased husband’s debt, the petition sought relief prohibited by the Appropriations Clause. The

Court explained:

No officer, however high, not even the President, much less a Secretary of the Treasury or

Treasurer, is empowered to pay debts of the United States generally, when presented to

them. If, therefore, the petition in this case was allowed so far as to order the verdict against

the United States to be entered on the books of the Treasury Department, the plaintiff would

be as far from having a claim on the Secretary or Treasurer to pay it as now. The difficulty

in the way is the want of any appropriation by Congress to pay this claim. It is a wellknown constitutional provision, that no money can be taken or drawn from the Treasury

except under an appropriation by Congress.

However much money may be in the Treasury at any one time, not a dollar of it can be

used in the payment of any thing not thus previously sanctioned. Any other course would

give to the fiscal officers a most dangerous discretion.101

94 Keepseagle v. Perdue, 856 F.3d 1039, 1073 (D.C. Cir. 2017) (Brown, J., dissenting).

95 52 U.S. 272 (1850).

96 Id. at 273–74.

97 Id. at 274.

98 Id. at 288–89 (“The petitioner and her husband have neglected to pursue the case . . . to a final judgment, and hence

have offered no evidence of one, on the verdict of indebtedness to Reeside by the United States.”).

99 Id. at 289 (offering this added analysis to “save future expense and litigation in this case”); see also Office of Pers.

Management v. Richmond, 496 U.S. 414, 425 (1990) (characterizing the Court’s discussion in Reeside concerning the

Appropriations Clause as an “alternative ground for decision”).

100 Id. at 291.

101 Id.

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Federal courts have since reaffirmed Reeside’s description of the Appropriations Clause’s

reach.102

In Hart v. United States,103 the Court set forth a corollary of the principle in Reeside: Congress

may expressly prohibit use of an appropriation to pay an obligation asserted by a private party.104

Hart received a pardon in November 1865 for having been “in active sympathy” with the

Confederate States of America during the Civil War.105 He claimed payment for (among other

things) “flour, corn, and forage” he had provided the federal government before secession.106 But

under an 1867 joint resolution of Congress, it was unlawful for any officer or employee to pay

any “account, claim, or demand” held by a person who supported secession, even if the person’s

claim related to goods or services provided before secession.107 The Court affirmed a decision

denying Hart’s claim, explaining that “[i]t was entirely within the competency of Congress to

declare that the claims mentioned in the joint resolution should not be paid till the further order of

Congress,” and this was true even though Hart had received a full pardon from President Andrew

Johnson.108

As Reeside instructs, a private party seeking payment from the United States must identify an

appropriation “made by law” that permits the payment, as the officers and employees of the

federal government lack general authority to pay debts “when presented to them.” And as in Hart,

Congress may specify that the appropriations it does make may not be obligated or expended to

pay specified debts.109 This congressional discretion could appear harsh, if and when Congress

refuses to pay a particular claim.110 But commentators on the Constitution argued that by

102 See Richmond, 496 U.S. at 424–25; U.S. Dep’t of the Navy v. Fed. Labor Rels. Auth., 665 F.3d 1339, 1347 (D.C.

Cir. 2012) (Kavanaugh, J.). However, the practical effect of this holding is limited. Through enactment of the

“Judgment Fund,” Congress has permanently appropriated sums to pay “final judgments, awards, compromise

settlements, and interest and costs” where (among other things) “payment is not otherwise provided for.” 31 U.S.C.

§ 1304(a).

103 118 U.S. 62 (1886).

104 The Fifth Amendment provides that “private property [shall not] be taken for public use, without just

compensation.” U.S. CONST., amend. V. In effect, the Fifth Amendment imposes a payment obligation, that of “just

compensation,” if the federal government “take[s]” private property for public use. See First English Evangelical

Lutheran Church v. Cty. of Los Angeles, 482 U.S. 304, 315 (1987) (“government action that works a taking of property

rights necessarily implicates the constitutional obligation to pay just compensation” (quotation marks omitted)). For a

discussion on how this provision may intersect with the Appropriations Clause, see Charles Tiefer, Controlling Federal

Agencies by Claims on Their Appropriations? The Takings Bill and the Power of the Purse, 13 YALE J. ON REG. 501,

505 (1996).

105 Hart, 118 U.S. at 64–65.

106 Id.

107 Id. at 65.

108 Id. at 67. The Court reached this decision while noting that Congress had separately allowed payments of

obligations to mail carriers in certain states, exempting such carriers from the 1867 joint resolution’s payment

prohibition. See id.

109 Reeside and Hart do not appear to involve an attempt by Congress to repeal an existing obligation, and this report

does not address the constitutional limitations that might apply to Congress’s power to void existing obligations. See,

e.g., Cherokee Nation v. Leavitt, 543 U.S. 631, 646 (2005) (“A statute that retroactively repudiates the Government’s

contractual obligation may violate the Constitution.”); United States v. Winstar Corp., 518 U.S. 839, 876 (1996)

(plurality) (noting that the federal government has “some capacity to make agreements binding [on] future Congresses”

but that the “extent of that capacity . . . remains somewhat obscure”). Moreover, the failure to appropriate sums to pay

an obligation does not rescind that obligation. See, e.g., Maine Cmty. Health Options, 140 S. Ct. at 1321 (explaining

that appropriations that are insufficient to satisfy an obligation do “not pay the Government’s debts, nor cancel its

obligations” (quotation marks omitted)).

110 In practice, even prior the Judgment Fund’s creation in 1956, see supra note 102 (discussing the Judgment Fund),

the federal government was a fairly dependable judgment debtor. “A study concluded in 1933 found only 15 instances

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mandating Congress’s participation in the claims-payment process, the Appropriations Clause

protects the public funds. If Congress did not have to authorize the payment of claims against the

United States, there would be “an opportunity for collusion and corruption in the management of

suits between the claimant[] and the officers of the government.”111 Congress’s role in approving

claims guards against collusion and, more generally, restrains executive action. “[T]he known

fact, that the subject must pass in review before congress, induces a caution and integrity in

making and substantiating claims, which would in a great measure be done away, if the claim

were subject to no restraint, and no revision.”112

Key Takeaways: The Appropriations Clause’s Effects on Private Parties

To recover money from the federal government, a private party must, among other things, identify an

appropriation that is available to satisfy the judgment.

Generally, the Appropriations Clause does not require Congress to appropriate funds to pay an obligation

asserted by a private party.

Effects on Executive Power

The Supreme Court has also applied the Appropriations Clause to limit the authority of executive

branch officers and employees exercising either constitutional or statutory powers. In Knote v.

United States,113 the Court held that another branch’s exercise of constitutional powers cannot

compel payment of public funds unless an appropriation separately permitted the payment.

During the Civil War, the federal government seized and sold Knote’s personal property because

he had committed treason by supporting secession.114 The government deposited the proceeds of

this sale in the Treasury.115 Later, President Andrew Johnson granted Knote a “full pardon and

amnesty” that restored Knote to “all rights, privileges, and immunities under the Constitution and

the laws made in pursuance thereof.”116 Knote argued that because seizure of his property was

one of the consequences of his treason, an offense for which he had received a full pardon, he was

entitled to the proceeds of the sale of his property.117

The Court rejected Knote’s claim. The Court began by noting that President Johnson’s pardon did

not, by its terms, call for a return of Knote’s forfeited property.118 Even if the President had

framed his pardon in that way, the President would lack the power to require return of the

property. The pardon power119 does not depend on congressional authorization. The President

in 70 years when Congress had refused to pay a judgment.” Glidden Co. v. Zdanok, 370 U.S. 530, 570 (1962).

111 JOSEPH STORY, 3 COMMENTARIES ON THE CONSTITUTION OF THE UNITED STATES, § 1343 (1833); see also Cincinnati

Soap Co. v. United States, 301 U.S. 308, 321 (1937) (noting that the Appropriations Clause was “intended as a

restriction upon the disbursing authority of the Executive department”).

112 Id.

113 95 U.S. 149 (1877).

114 Id. at 149.

115 Id.

116 Id. at 152.

117 See id. at 153.

118 Id.

119 See U.S. CONST. art II, § 2, cl. 1 (conferring on the President the “Power to Grant Reprieves and Pardons for

Offences against the United States, except in Cases of Impeachment”).

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may grant a pardon without a statute authorizing one, and Congress cannot prohibit the President

from granting a pardon in any case or class of cases.120 But the government had deposited the

proceeds from the sale of Knote’s property in the Treasury. This deposit triggered the

Appropriations Clause. “However large . . . may be the power of pardon possessed by the

President,” the Court explained, “there is this limit to it, as there is to all his powers[]—it cannot

touch moneys in the treasury of the United States, except [as] expressly authorized by act of

Congress.”121

The Court likewise relied on the Appropriations Clause over a century later when holding, in

Office of Personnel Management v. Richmond,122 that when no appropriation supports a payment,

the executive branch may not bind the government to make the payment based on how an agency

carries out a statutory program. In 1986, Navy Department personnel advised Richmond, a retired

Navy welder, that he could pursue certain part-time work without sacrificing his right under

federal law to disability benefits. The Navy based its advice on an outdated version of statutory

eligibility rules, which in 1982 Congress modified. In fact, the retiree’s part-time work made him

ineligible under the post-1982 eligibility rules, and the federal government eventually denied him

benefits.123 Richmond challenged the denial of benefits, claiming that the doctrine of equitable

estoppel prevented the government from now arguing that statute made Richmond ineligible for

benefits. The government had earlier made the opposite representation (i.e., that Richmond would

remain eligible for benefits), and Richmond had relied on that earlier advice when accepting the

part-time work that made him ineligible for benefits.124

Equitable estoppel may apply in litigation between private parties, limiting the arguments

available to one party to avoid unfairness to that party’s adversary.125 When the Supreme Court

considered Richmond’s case, though, lower courts were divided over whether and when equitable

estoppel applied against the government.126 Though it refused to rule out estoppel in all cases

involving the federal government,127 the Court rejected the doctrine’s application to the United

States in cases involving monetary claims against the government.128 According to the Court, this

ruling was necessary given the Appropriations Clause. “Any exercise of a power granted by the

Constitution to one of the other Branches of Government is limited by a valid reservation of

congressional control over funds in the Treasury.”129 Just as the President may not obligate funds

120 See Schick v. Reed, 419 U.S. 256, 266 (1974) (reasoning that the President’s pardon power “flows from the

Constitution alone, not from any legislative enactments, and . . . it cannot be modified, abridged, or diminished by the

Congress”).

121 Knote, 95 U.S at 154. Though it appeared to avoid resolving the issue, the Court has suggested that Knote’s

principle applies “regardless of whether the Government's ownership of those funds is disputed,” such that an employee

of the United States would need an appropriation to return funds erroneously deposited into the Treasury. Republic

Nat’l Bank v. United States, 506 U.S. 80, 94 (1992) (Rehnquist, C.J.) (opinion of the Court in relevant part).

122 496 U.S. 414 (1990).

123 Id. at 417–19.

124 Id. at 419.

125 See, e.g., Kosakow v. New Rochelle Radiology Assocs., P.C., 274 F.3d 706, 725 (2d Cir. 2001) (“The doctrine of

equitable estoppel is properly invoked where the enforcement of the rights of one party would work an injustice upon

the other party due to the latter’s justifiable reliance upon the former’s words or conduct.”).

126 See Richmond, 496 U.S. at 422.

127 Id. at 423–24.

128 See id. at 434 (“Whether there are any extreme circumstances that might support estoppel in a case not involving

payment from the Treasury is a matter we need not address. As for monetary claims, it is enough to say that this Court

has never upheld an assertion of estoppel against the Government by a claimant seeking public funds.”).

129 Id. at 425.

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without an appropriation, “judicial use of the equitable doctrine of estoppel cannot grant [a party]

a money remedy that Congress has not authorized.”130

The Court justified its decision by reference to the Appropriations Clause’s fundamental purpose,

to “assure that public funds will be spent according to the letter of the difficult judgments reached

by Congress as to the common good,” a judgment reflected in a statute that provides an

appropriation.131 If the Court applied estoppel, executive branch officials charged with

administering government programs could effectively overrule Congress’s spending decisions by

administering programs as if a different set of rules applied.132 According to the Court, the

Appropriations Clause foreclosed that result.

Another case bears mentioning. Though it is not a construction of the Appropriations Clause,

Kendall v. United States133 is authority with implications for Congress’s appropriations function.

In Kendall, the Court recognized Congress’s ability to impose, by statute, mandatory functions on

subordinate executive branch officials. There, the Postmaster General credited a contractor’s

account for transporting the mail. After a change in Post Office leadership, though, a new

Postmaster General withdrew the credits.134 The contractor petitioned Congress for relief. Rather

than itself determine credits owed, Congress empowered the Solicitor of the Treasury to decide

the issue, and Congress directed the Postmaster General to credit mail contractors with whatever

sum the solicitor decided was due.135 After the Solicitor made his finding, the Postmaster General

refused to give the full credit found, arguing in the lawsuit that followed that the courts could not

control how the President directed execution of the laws.136

Drawing a distinction between the President on the one hand, and the President’s subordinates on

the other, the Court rejected the Postmaster General’s view. “[A]s far as his powers are derived

from the constitution, [t]he [President] is beyond the reach of any other department, except in the

mode prescribed by the constitution through the impeaching power.”137 But this did not mean that

“every officer in every branch of th[e executive] department is under the exclusive direction of

the President.”138 Rather, Congress may impose statutory duties on subordinate officers, leaving

no discretion over how the agent performs the duty,139 and the federal courts could compel the

officer to perform such duties.140 “The terms of the submission” of the disputed claim to the

130 Id. at 426.

131 Id. at 427–28.

132 See id. at 428.

133 37 U.S. 524 (1838).

134 Id. at 608.

135 Id. at 608–09.

136 Id. at 612–13 (“It was urged at the bar, that the postmaster general was alone subject to the direction and control of

the President, with respect to the execution of the duty imposed upon him by this law, and this right of the President is

claimed, as growing out of the obligation imposed upon him by the constitution, to take care that the laws be faithfully

executed.”).

137 Id. at 610.

138 Id.

139 Id. at 613 (“The act required by the law to be done by the postmaster general is simply to credit the relators with the

full amount of the award of the solicitor. This is a precise, definite act, purely ministerial; and about which the

postmaster general had no discretion whatever.”).

140 Id. at 614, 623–24.

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solicitor “was a matter resting entirely in the discretion of congress,” and the Postmaster General

could not “control Congress, or the solicitor, in that affair.”141

Kendall rejected the contention that a subordinate officer, such as the Postmaster General, “was

alone subject to the direction and control of the President, with respect to the execution of the

duty imposed upon him by this law.”142 Under Kendall’s reasoning, Congress may craft a statute

that requires subordinate executive officers to obligate funds, or to obligate funds in a particular

way.143 This authority is important, because the executive branch can just as easily frustrate

Congress’s power of the purse by refusing to obligate funds (at all, or in the manner directed by

Congress) as by obligating funds for a purpose not permitted by law. Writing in 1969, William

Rehnquist, then-Assistant Attorney General of the Office of Legal Counsel and future Chief

Justice of the United States, pointed to Kendall as “authority against the asserted Presidential

power” to “refuse to spend funds appropriated by Congress for a particular purpose” where the

statute making the appropriation “by its terms sought to require the expenditure.”144 Though other

officials within the Nixon Administration soon rejected this view,145 Rehnquist found it

“extremely difficult to formulate a constitutional theory to justify a refusal by the President to

comply with the Congressional directive to spend,” at least when the refusal did not concern

foreign affairs or national defense.146 Later cases endorse similar reasoning.147

Key Takeaways: The Appropriations Clause’s Effects on Executive Power

The Supreme Court has held that an executive branch officer or employee may not obligate Treasury funds

in the absence of an appropriation, including in a case involving the President’s exercise of the pardon power.

Supreme Court case law provides support for the proposition that Congress may implement spending

decisions by drafting statutes to require the obligation or expenditure of funds by subordinate executive

officers or employees.

141 Id. at 611.

142 Id. at 612–13.

143 See, e.g., Pennsylvania v. Lynn, 501 F.2d 848, 854 n. 21(D.C. Cir. 1974) (stating that Congress could set conditions

in statute limiting the executive branch’s discretion over expenditure of appropriated sums and that “[a] contention to

the contrary would not be likely of a serious reception” (citing Kendall, 37 U.S. 524); Constitutional Limitations on

Fed. Gov’t Participation in Binding Arbitration, 19 Op. O.L.C. 208, 224 (1995) (“Kendall stands for the proposition

that the executive must comply with the terms of valid statutes and that if a statute requires the executive to submit to

binding arbitration, the executive must do so.”); The President’s Veto Power, 12 U.S. Op. Off. Legal Counsel 128, 167

(1988) (noting that Kendall “can be read to support the proposition that the executive’s duty faithfully to execute the

laws requires it to spend funds at the direction of Congress”); cf. Lincoln v. Vigil, 508 U.S. 182, 193 (1993) (“[A]n

agency is not free simply to disregard statutory responsibilities: Congress may always circumscribe agency discretion

to allocate resources by putting restrictions in the operative statutes.”).

144 Memorandum for the Honorable Edward L. Morgan, Deputy Counsel to the President (Dec. 19, 1969), reprinted in

1971 Impoundment Hearings, note 53 at 283.

145 Impoundment of Appropriated Funds by the President, Joint Hearings Before the Ad Hoc Subcomm. on

Impoundments of Funds of the S. Comm. on Gov’t Ops. and the Subcomm. on Separation of Powers of the S. Comm. on

the Judiciary, 93d Cong. 380 (1973) [hereinafter 1973 Impoundment Hearings] (testimony of J. Sneed, Deputy

Attorney General, Department of Justice).

146 Memorandum for Edward L. Morgan, reprinted in 1971 Impoundment Hearings, supra note 53, at 283.

147 See, e.g., In re Aiken Cty., 725 F.3d 255, 260 (D.C. Cir. 2013) (granting writ of mandamus against the Nuclear

Regulatory Commission requiring it to “continue with the legally mandated licensing process” for opening a nuclear

waste repository at Yucca Mountain) (stating that “where previously appropriated money is available for an agency to

perform a statutorily mandated activity” as to which the President has not raised a constitutional objection, “we see no

basis for a court to excuse the agency from that statutory mandate”) (Kavanaugh, J.).

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The Appropriations Clause’s Limits

Despite the Supreme Court’s robust reading of the Appropriations Clause, at least three features

of the Court’s case law bear mentioning.148 First, the Court has held that the Clause does not

apply to money held by the government outside the Treasury. In United States v. Osborn, a federal

district court ordered forfeited to the United States bonds and mortgages held by Osborn,

eventually netting $20,000 in proceeds.149 None of these funds were paid into the Treasury. Some

funds sat in the district court’s registry.150 After receiving a full pardon and amnesty, Osborn

petitioned the district court for an order restoring the proceeds of his forfeited property,151 and the

Supreme Court held that this relief could be granted. Forfeiture was a penalty attached to

Osborn’s offense, but the President pardoned that offense, and the “penalty . . . must fall with the

pardon of the offence itself.”152 The Court rejected the claim that “the proprietary interests of the

government can only be disposed of by act of Congress.”153 As the Court explained two years

later in Knote, until a third party received the proceeds or the government deposited the funds in

the Treasury, the proceeds “were within the control of the court, and . . . no vested right to the

proceeds had accrued so as to prevent the pardon from restoring them to the claimant.”154

The Appropriations Clause did not bar an order requiring return of the forfeiture proceeds because

payment to Osborn would not come from funds in the Treasury. According to the Court,

Congress’s exclusive control over funds extends only to those deposited in the Treasury, and it

does not appear that the Supreme Court has ever held that any portion of the Constitution requires

an agency to deposit the funds it receives in the Treasury.155 Thus, a key component of the statutes

that implement Congress’s power of the purse is the requirement, imposed by the Miscellaneous

Receipts Act, that agencies deposit public money in the Treasury.156

Second, the Court has constrained Congress’s power of the purse by relying on express

constitutional provisions that limit Congress’s ability to withhold funding from another branch.

Generally, “Congress has full control of salaries” provided to federal officers and employees.157

The Framers recognized, though, that if this control extended to all members of the executive and

judicial branches, Congress could use its appropriations power to erode the independence of the

other branches. Writing in the Federalist Papers, Alexander Hamilton indirectly warned that a

148 The Court has also held that Congress cannot exercise its appropriations power in a way that violates

constitutionally protected individual rights. See, e.g., United States v. Lovett, 328 U.S. 303, 315 (1946) (invalidating an

appropriations rider because by prohibiting use of appropriated funds to pay the salaries of named government

employees suspected of being communists the rider functioned as an unconstitutional bill of attainder); see also U.S.

CONST. art I, § 9, cl. 3 (“No Bill of Attainder or ex post facto Law shall be passed.”). These individual-rights cases are

beyond the scope of this report.

149 91 U.S. 474, 475 (1875).

150 Id.

151 Id. at 476.

152 Id. at 477.

153 Id. at 478.

154 United States v. Knote, 95 U.S. 149, 156 (1877); see also Osborn, 91 U.S. at 479 (“The power of the court over

moneys belonging to its registry continues until they are distributed pursuant to final decrees in the cases in which the

moneys are paid.”).

155 However, at least one scholar has argued that the term “Treasury,” as used in the Appropriations Clause, should be

understood as “[a]ll funds belonging to the United States[,] received from whatever source, however obtained, and

whether in the form of cash, intangible property, or physical assets.” See Stith, supra note 9, at 1356.

156 See infra notes 197–237 and text.

157 Embry v. United States, 100 U.S. 680, 685 (1879).

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Congress with full control over presidential compensation could “weaken [the President’s]

fortitude by operating on his necessities” or “corrupt his integrity by appealing to his avarice.”158

Hamilton separately cautioned that “the complete separation of the judicial from the legislative

power” could not be achieved “in any system which leaves the [judiciary] dependent for

pecuniary resources on the occasional grants of the [the legislature.]”159 The Constitution

therefore provides protections for the salary of the President and of federal justices and judges.

Congress may not increase or decrease the President’s salary during the President’s term in

office,160 and Congress may not decrease—but may increase—the salaries of federal justices and

judges during their terms in office.161

The Court has not applied the prohibition against changes in presidential salary, but the Court has

invalidated appropriation riders that unlawfully diminished the salaries of federal judges during

their terms in office. In United States v. Will, a class of federal judges sued the United States,

claiming that Congress had unconstitutionally diminished judicial salaries. 162 Under the law then

in effect, federal judges received the same annual cost-of-living provided to General Schedule

employees, which the Court said was set by a statutory formula.163 Beginning in fiscal year (FY)

1977, and continuing through FY1980, Congress enacted statutes—three of which it adopted as

limitations in an appropriations act—denying a pay adjustment for justices and judges, among

others.164 Two of these blocking acts became law before the start of the fiscal year to which the

statute applied, while the other two became law after the start of the relevant fiscal year.165 In

Will, the Supreme Court held that “a salary increase ‘vests’ for purposes of the Compensation

Clause,” and thus Congress could not block the increase, “only when it takes effect as part of the

compensation due and payable to Article III judges.”166

This dividing line, between contingent and vested salary increases, balanced Congress’s

discretion to increase (or not increase) the salary of judges against concerns for judicial

independence. “To say that the Congress could not alter a method of calculating salaries before it

was executed would mean the Judicial Branch could command Congress to carry out an

announced future intent as to a decision the Constitution vests exclusively in the Congress.”167

Applying this dividing line, the Court invalidated the two blocking statutes that became law after

the start of the relevant fiscal year—by which time the salary increases had vested—but denied

158 THE FEDERALIST NO. 73, at 441–42 (Alexander Hamilton) (Clinton Rossiter ed., 1961).

159 Id. NO. 79, at 472.

160 U.S. CONST. art. II, § 1, cl. 7 (“The President shall, at stated Times, receive for his Services, a Compensation, which

shall neither be encreased nor diminished during the Period for which he shall have been elected, and he shall not

receive within that Period any other Emolument from the United States, or any of them.”).

161 Id. art. III, § 1 (“The Judges, both of the supreme and inferior Courts, shall hold their Offices during good

Behaviour, and shall, at stated Times, receive for their Services, a Compensation, which shall not be diminished during

their Continuance in Office.”).

162 449 U.S. 200 (1980).

163 Id. at 203–04.

164 See Legislative Branch Appropriations Act of 1977, Pub. L. No. 94-440, 90 Stat. 1439, 1446 (1976) (FY1977

blocking act); Pub. L. No. 95-66, 91 Stat. 270, 270 (1977) (FY1978 blocking act); Legislative Branch Appropriations

Act of 1979, Pub. L. No. 95-391, Title III, § 304(a), 92 Stat. 763, 788–89 (1978) (FY1978 blocking act); Continuing

Appropriations Act of 1980, Pub. L. No. 96-86, § 101(c), 93 Stat. 656, 657 (1979) (FY1980 blocking act).

165 Will, 449 U.S. at 205–08.

166 Id. at 228–29.

167 Id. at 228.

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relief for the two blocking statutes that became law before the start of the relevant fiscal year—

and thus before any salary increase had vested.168

Third, the Court has on at least one occasion, in United States v. Klein,169 invoked separation-ofpowers principles to hold that Congress may not use its appropriations power to control how

another branch exercises its constitutional powers. Klein arose from a complex background of

court decisions and congressional action.170 In 1869, the Supreme Court held, in United States v.

Padelford,171 that a person pardoned for supporting the Confederacy “was as innocent in law as

though he had never participated” in the rebellion.172 Though he “certainly afforded aid and

comfort to the rebellion” by acting as surety to certain bonds, because of the pardon Padelford

had a right to the proceeds from the sale of his property seized during the Civil War.173 The Court

thus affirmed a judgment of the Court of Claims awarding proceeds to Padelford.174

The next year, using the appropriations process, Congress expressed its disapproval of Padelford.

Congress appropriated $100,000 for “payment of judgments which may be rendered” by the

Court of Claims “in favor of claimants” but limited use of the appropriation.175 The limitation

included in the appropriation prohibited proof of a pardon or amnesty from either being offered

into evidence or considered by the Court of Claims in support of a claim.176 The claimant had to

prove loyalty to the United States “irrespective” of any pardon.177 If an individual accepted a

pardon for acts done in support of the Confederacy without denying having provided the support,

the person’s acceptance would be “conclusive evidence” of ineligibility.178 Any case then before a

federal court that fit this category would have to be dismissed, notwithstanding Padelford, as no

appropriation was available to pay the judgment sought by the pardoned claimant.179

168 See id. at 224–30. In 1989, Congress amended the cost-of-living formula statute to its current form (the 1989

statute). In 2012, sitting en banc, the U.S. Court of Appeals for the Federal Circuit held that blocking acts passed in the

1990s “constitute[d] unconstitutional diminishments of judicial compensation.” Beer v. United States, 696 F.3d 1174,

1186 (Fed. Cir. 2012) (en banc). The Federal Circuit distinguished Will by characterizing the 1989 statute as

“provid[ing] [cost-of-living adjustments] according to a mechanical, automatic process that creates expectation and

reliance when read in light of the Compensation Clause.” Id. at 1181. Given this expectation and reliance, “all sitting

federal judges are entitled to expect that their real salary will not diminish due to inflation or the action or inaction of

the other branches of Government.” Id. at 1184. “If a future Congress wishe[d] to undo” the “promises” of selfexecuting pay increases under the 1989 statute, the Federal Circuit reasoned, “it may, but only prospectively. Any

restructuring of compensation maintenance promises cannot affect currently-sitting Article III judges.” Id. at 1185. The

Supreme Court has not granted review in a case raising questions about Congress’s ability to block pay raises that

would otherwise go into effect under the current statute.

169 80 U.S. 128 (1872).

170 See Price, supra note 10, at 398–99 (referring to Klein as an “important (if famously opaque) Reconstruction-era

decision”).

171 76 U.S. 531 (1869).

172 Klein, 80 U.S. at 132–33.

173 Padelford, 76 U.S. at 536, 543.

174 See id. at 543.

175 Law of July 12, 1870, ch. 251, 16 Stat. 230, 235 (1870).

176 Id.

177 Id.

178 Id.

179 See Id.

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Against this backdrop, Klein reached the Supreme Court. Just like Padelford, Treasury agents

seized and sold Klein’s180 cotton, depositing the proceeds of the sale into the Treasury.181 Just like

Padelford, Klein had “voluntarily become the surety on the official bonds of certain officers of

the rebel confederacy, and so given aid and comfort.”182 And just like Padelford, Klein received a

pardon.183 Klein sought an award of the proceeds from the sale of his property.184

Thus, the question before the Supreme Court in Klein was whether to enforce the limitation in the

1870 appropriation. If the Court enforced the limitation, a person who had performed acts in

support of the Confederacy would be ineligible for a sale proceeds award. Klein’s claim would

have to be denied. But the Court did not enforce the limitation.185 The Court recognized that

“[u]ndoubtedly the legislature has complete control over the organization and existence of” the

court of claims (the court where the case originated) “and may confer or withhold the right of

appeal from its decisions.”186 The Court refused to find that this power decided the case, though,

because it was the “intention of the Constitution that each of the great co-ordinate departments of

the government . . . shall be, in its sphere, independent of the others.”187 Congress’s appropriation

limitation improperly intruded upon both of the other branches’ spheres. Congress sought to

modify proceedings in the federal courts for the impermissible end of “prescrib[ing] rules of

decision to the Judicial Department of the government in cases pending before it.”188 And

Congress had tried to limit a pardon’s effect.189 The limitation could not be honored without

intruding upon the finality of federal court judgments, the federal courts’ independent exercise of

the judicial power, or the President’s pardon power.

Klein does not establish a bright-line rule for distinguishing between lawful and unlawful

appropriations riders, and the Supreme Court does not appear to have disregarded an

appropriations rider in any later case because of separation-of-powers concerns. This dearth of

relevant case law is perhaps because, as the Court explained more than a century later, cases

raising separation-of-powers questions in the appropriations context “implicate[] the fundamental

relationship between the Branches.”190 If the Court can avoid weighing in on a constitutional

180 More precisely, the cotton belonged to V.F. Wilson, who died before litigation began. Klein was the administrator

of Wilson’s estate and sued on behalf of the estate. See United States v. Klein, 80 U.S. 128, 136 (1872). For

simplicity’s sake, this report refers to Klein alone.

181 Id. at 131–32.

182 Id. at 132.

183 Id. at 141–42.

184 See id. at 136.

185 Id. at 148 (asserting the appropriation rider must have been “inserted in the appropriation bill through inadvertence”

and affirming the Court of Claims’s judgment).

186 Id. at 145.

187 Id. at 147.

188 Id. at 146; but see Robertson v. Seattle Audubon Soc., 503 U.S. 429, 438 (1992) (distinguishing Klein in a case in

which changes to law did not “direct any particular findings of fact or applications of law, old or new, to fact” but

rather amended existing law).

189 Klein, 80 U.S. at 148.

190 Am. Foreign Serv. Ass’n v. Garfinkel, 490 U.S. 153, 161–62 (1989) (vacating a district court judgment that

invalidated an appropriation rider related to executive branch use of confidentiality agreements, on the ground that the

rider impermissibly interfered with the President’s foreign affairs powers, because the district court could decide the

case on statutory rather than constitutional ground).

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question relating to this fundamental relationship, such as by deciding a case on another

ground,191 it likely will.

Still, two factors appear important under a Klein analysis. An appropriations rider must

significantly affect another branch’s exercise of a power conferred on that branch by the

Constitution. It also appeared noteworthy to the Court that, in adopting the rider, Congress

exercised its appropriations power to pursue an impermissible end. For example, in Klein the

Court recognized that Congress could pass legislation to shape federal court jurisdiction and

proceedings, but the Court appears to have decided that the rider was not a bona fide use of this

authority. “[T]he language of the proviso shows plainly that it does not intend to withhold

appellate jurisdiction except as a means to an end,” which was to infringe on the President’s

pardon power.192 If Congress could not nullify a pardon directly, such as by passing legislation

purporting to revoke a pardon, under Klein’s reasoning, it could not accomplish that end

indirectly by conditioning appropriated funds in a manner that denied a pardon its effect. 193

Key Takeaways: The Appropriations Clause’s Limits

As a constitutionally conferred power, Congress’s power to control the other branches through

appropriations is limited only by the Constitution itself.

The Appropriations Clause does not apply to money held outside of the Treasury. As described later in this

report, this aspect of the Court’s jurisprudence generally has limited practical effect, because, by statute,

agencies usually must deposit in the Treasury money received for the government.

Express provisions of the Constitution limit Congress’s authority to control the compensation provided to

the President or to federal justices and judges.

The Supreme Court has refused to give effect to an appropriation rider that, in the Court’s judgment,

infringed on the constitutional functions of the executive and judicial branches.

Congress’s Fiscal Control Statutes

The Appropriations Clause is not the only means for Congress to ensure that obligations stay

within the scope of the budget authority it grants. Rather, Congress has adopted a series of fiscal

control statutes that provide “the operational and definitional framework for the enactment and

expenditure of appropriations.”194 These statutes govern the receipt of funds by an executive

branch agency; the purposes for which appropriated funds may be obligated; the authority of an

agency to shift funds between or within appropriations; and when an agency may delay the

obligation or expenditure of budget authority. Departures from or variations on these rules may

exist in the statutes pertaining to a specific agency or agencies, such as statutes dealing with the

National Intelligence Program,195 and may also create additional funds control measures for

191 Id. at 161 (“[W]e emphasize that the District Court should not pronounce upon the relative constitutional authority

of Congress and the Executive Branch unless it finds it imperative to do so.”).

192 Klein, 80 U.S. at 145 (emphasis added).

193 See id. at 148 (“It is clear that the legislature cannot change the effect of such a pardon any more than the executive

can change a law. Yet this is attempted by the provision under consideration.”).

194 Stith, supra note 9, 1363.

195 See 50 U.S.C. § 3003(6) (defining the National Intelligence Program as “all programs, projects, and activities of the

intelligence community” except for intelligence gathered solely for “tactical military operations by United States

Armed Forces”); see also, e.g., id. § 3024(c)(5)–(6) & (d) (assigning the Director of National Intelligence

responsibilities for apportionment, transfers, and reprogramming of budget authority made available for the National

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particular agencies, programs, or statutory authorities. But, generally speaking, the fiscal control

statutes act as a set of background rules governing agency authority to retain, obligate, and

expend public money.

The Miscellaneous Receipts Act (MRA)

As noted above, the Appropriations Clause has generally been construed to establish the Treasury

as a special place of deposit. Funds deposited in the Treasury may not be obligated or expended

without an appropriation, while funds held outside the Treasury are not subject to the same

limitation.196 Congress does not directly administer the Treasury.197 Nor does Congress act as the

collecting agent for funds owed to the government.198 Thus, without a requirement that federal

agencies pay funds they receive into the Treasury, the executive branch could, practically

speaking, narrow the Appropriations Clause’s reach. Agencies might be able to avoid the need for

an appropriation—and all of the control and accountability an appropriation entails—by keeping

(for example) tax collections outside the Treasury and financing agency operations with such

funds.

Given this potential, it is perhaps surprising that Congress did not legislate a Treasury deposit

requirement until 1849, a full 60 years after the Clause’s adoption. Before 1849, federal agencies

commonly deducted sums from money the agency received in the ordinary course of its

operations and used those deductions to pay expenses. Thus, for example, in 1845 revenue agents

responsible for collecting duties on imports deposited in the Treasury only 85% of the duties they

collected. The agents used the balance, 15% of all collections, to cover expenses and other

payments.199 The withheld amount was a large sum of money for the time, more than 10% of all

federal revenues raised in a typical fiscal year.200

In response, Congress passed a statute requiring federal officers or employees to pay into the

Treasury, “at as early a day as practicable” “the gross amount of all duties received from customs,

from the sales of public lands, and from all miscellaneous sources, for the use of the United

States.”201 Proponents justified this new statutory requirement, the forerunner of today’s MRA, on

varying grounds, with some arguing that it improved transparency202 and others touting the

requirement as an anti-fraud measure.203 Congress’s aim was to compel the executive branch to

Intelligence Program).

196 See supra notes 149–156 and text.

197 31 U.S.C. § 302 (“The United States Government has a Treasury of the United States. The Treasury is in the

Department of the Treasury.”).

198 E.g., 26 U.S.C. § 6301 (“The Secretary [of the Treasury] shall collect the taxes imposed by the internal revenue

laws.”).

199 More specifically, “the gross amount of revenue accruing from imports was $30,892,000” but only $26,326,000 of

this sum was “actually paid into the treasury.” CONG. GLOBE, 30th Cong., 1st Sess. 464 (Mar. 15, 1848) (Rep. McKay).

200 During FY1845, the federal government collected $29,769,133.56 from all sources. DEP’T OF TREASURY, REPORT

FROM THE SECRETARY OF THE TREASURY ON THE STATE OF FINANCES 1 (Dec. 3, 1845). During FY1846, total federal

revenue collected equaled $29,499,247.06. DEP’T OF TREASURY, REPORT FROM THE SECRETARY OF THE TREASURY ON

THE STATE OF FINANCES 1 (Dec. 10, 1846).

201 Act of March 3, 1849, ch. 110, 9 Stat. 398, 398 (1849).

202 See CONG. GLOBE, 30th Cong., 1st Sess. 464 (Mar. 15, 1848) (Rep. McKay) (arguing that the MRA would “give a

true exposé of the whole expenses of the Government”).

203 See id. (Rep. Pollock) (stating that the MRA would “secure the Government from frauds on the part of those who,

under existing laws, received payment of demands upon the Government without appropriations therefor by law”).

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place public moneys in a legally significant place, the Treasury, where “[o]nce money is

deposited . . . it takes an appropriation to get it out.”204

Congress has revised the MRA since its initial adoption, but its purpose remains to “preserve

congressional control of the appropriations power.”205 The current statute appears at 31 U.S.C.

§ 3302(b), which provides that “an official or agent of the Government receiving money for the

Government from any source shall deposit the money in the Treasury as soon as practicable

without deduction for any charge or claim.”206 But Congress may provide exceptions to the

MRA’s Treasury deposit requirement and allow agencies to keep public money that they

receive.207 Common examples of MRA exceptions include an agency’s authority to accept and

retain gifts or other contributions208 or to use funds received through enforcement activities to

finance those activities.209 Congress may also permit an agency to charge fees to offset the cost of

providing “a service or thing of value.”210 But unless Congress additionally allows the agency to

retain and spend the proceeds of its fees,211 the agency must deposit the fees in the Treasury.

Congress would need to specify (for example) that user fees collected are “available until

expended” by the agency for specified purposes.212

Agencies must deposit public money received for the United States “not later than the third day”

after receipt of the money,213 though the Secretary of the Treasury has authority to prescribe, by

204 2 GAO REDBOOK, supra note 30, at ch. 6, p. 6-168 (3d ed., 2006), https://www.gao.gov/assets/210/202819.pdf.

Despite Congress’s aspirations for the statute, agency officials continued to hold public money outside the Treasury,

prompting more legislation imposing penalties not provided for in the original act. See, e.g., Joint Resolution of March

30, 1868, §§ 1–2, 15 Stat. 251, 251 (1868) (requiring agencies to “immediately” pay into the Treasury any money

derived from the “sale of captured or abandoned property in the late insurrectionary districts” and declaring that

officials who did not immediately pay such money into the Treasury would be guilty of embezzlement). Adopted

during Reconstruction, the statute addressed the particular needs of that era; no criminal penalties survive in the modern

MRA.

205 Scheduled Airlines Traffic Offenses, Inc. v. Dep’t of Def., 87 F.3d 1356, 1362 (D.C. Cir. 1996).

206 31 U.S.C. § 3302(b). Though the Act appears to apply to the federal judiciary as well as the executive branch, see

Lee v. United States, 33 Fed. Cl. 374, 383 (Ct. Cl. 1995) (holding that the court could not order filing fees refunded to a

plaintiff because the MRA required the Clerk of Courts to deposit the fees in the Treasury), other statutes separately

require federal clerks of court to “pay into the Treasury all fees, costs, and other moneys collected by” the relevant

clerk. See 28 U.S.C. § 671(d) (Supreme Court); id. § 711(c) (circuit courts of appeals); id. § 751(e) (district courts); id.

§ 156(f) (bankruptcy courts); id. § 791(b) (Court of Federal Claims).

207 See Application of the Miscellaneous Receipts Act to the Settlement of False Claims Act Suits Concerning

Contracts with the General Services Administration, 30 Op. O.L.C. 53, 57 (2006) (explaining that “Congress simply

supersedes its own general statute,” the MRA, “with a specific statute” that creates “an exception to the MRA that

gives an agency statutory authority to direct funds elsewhere” (internal quotation marks omitted)).

208 10 U.S.C. § 2350J (authorizing for the Secretary of Defense to accept and use burden-sharing contributions from

“any country or regional organization” to pay local nationals who are DOD employees, for military construction, and

for DOD supplies and services).

209 28 U.S.C. § 524(c) (permitting DOJ to use the proceeds from forfeiture proceedings and other sources to cover

specified expenses).

210 31 U.S.C. § 9701(b).

211 See SBA’s Imposition of Oversight Review Fees on PLP Lenders, B-300248, 2004 U.S. Comp. Gen. LEXIS 13, at

*8–9 (Comp. Gen. Jan. 15, 2004).

212 See, e.g., 8 U.S.C. § 1356(n) (“All deposits into the ‘Immigration Examinations Fee Account’ shall remain available

until expended . . . to reimburse any appropriation the amount paid out of such appropriation for expenses in providing

immigration adjudication and naturalization services and the collection, safeguarding and accounting for fees deposited

in and funds reimbursed from the ‘Immigration Examinations Fee Account.’”).

213 31 U.S.C. § 3302(c)(1).

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regulation, a different deposit time frame.214 Officers or employees who violate this promptdeposit requirement “may be removed from office . . . [and] may be required to forfeit to the

Government any part of the money held by” that person to which he or she “may be entitled.”215

Though there appears to be no case law on this point, the MRA’s text could allow the government

to seek forfeiture of funds, such as salary or savings, belonging to the federal custodian

responsible for violating the Act.216 Under this reading, it would be no defense to forfeiture for

the employee to assert that the public money wrongfully held outside the Treasury was no longer

in his or her possession because (for example) the agency had spent the funds; the government

has recourse, through forfeiture, to “any part of the money held by that person.”217

The MRA’s prompt-deposit requirement triggers upon receipt of “money for the Government

from any source.”218 Money falls within the scope of the Act if an agency will use the money to

“bear[] the expenses of the administration of the Government and pay[] the obligations of the

United States.”219 Actual receipt of funds is neither necessary, nor is it sufficient, for the MRA to

apply. An agency violates the MRA if it requires a third party to make payments on its behalf to

satisfy an agency obligation, even though no agency employee receives money from the third

party.220 But the MRA does not apply to money held by the United States for a third party (e.g., in

214 Id. § 3302(c)(2).

215 Id. § 3302(d).

216 More broadly, public employees who have authority to spend public money are often accountable for funds that are

improperly spent. See, e.g., id. § 3528(a)(4) (making a “certifying official” “responsible for . . . repaying a payment”

that is prohibited by law or “does not represent a legal obligation under the appropriation or fund involved”); id.

§ 3325(a)(3) (providing that a “disbursing official” may be “held accountable for” carrying out statutory

responsibilities); see also, e.g., O.R.C. § 117.28 (state statute authorizing a civil action “for the recovery of the money

or property” that is the subject of an “audit report [that] sets forth that any public money has been illegally expended, or

that any public money collected has not been accounted for, or that any public money due has not been collected, or

that any public property has been converted or misappropriated”).

217 31 U.S.C. § 3302(d) (emphasis added).

218 Id. § 3302(b).

219 Interstate Commerce Commission—Disposition of Excess Railway Operating Income, 33 Op. Att’y Gen. 316, 321

(1922). Attorney General Daughtery derived this meaning from the phrase “[f]or use of the United States,” which

appeared in a prior version of the MRA. See id. at 320–21. Congress revised and recodified the MRA in 1982 so that

the statute applied to moneys received “for the Government.” Act of Sept. 13, 1982, 96 Stat. 877, 948 (1982). Congress

did not intend this revision to change the MRA’s scope. See id., § 4(a), 96 Stat. at 1067 (relevant sections of the 1982

Act “may not be construed as making a substantive change in the laws replaced”); see also Commodity Futures Trading

Commission—Consistency of Real Property Leases with Miscellaneous Receipts Statute, B-327830, 2017 U.S. Comp.

Gen. LEXIS 29, at *11 (Comp. Gen. Feb. 8, 2017) (construing current MRA by applying same definition).

220 E.g., CFTC—Consistency of Real Property Leases, B-327830, 2017 U.S. Comp. Gen. LEXIS 29, at *19 (“The

critical factor in this case . . . is that [the Commodity Futures Trading Commission (CFTC)] arranged for its landlord to

make payments to pay CFTC liabilities; thus, CFTC violated the miscellaneous receipts statute when the landlords

made the payments. CFTC should have deposited the amounts of these payments into the Treasury as miscellaneous

receipts.”); Department of Energy—December 2004 Agreement with the United States Enrichment Corporation, B307137, 2006 U.S. Comp. Gen. LEXIS 135, at *34–35 (Comp. Gen. July 12, 2006) (“[I]f DOE itself had sold its clean

uranium, rather than transferring the uranium to USEC to carry out the same task, the department admits that it could

not have legally retained the sales proceeds and applied them to pay its decontamination costs,” but would have instead

had to deposit the sale proceeds in the Treasury. “With the December 2004 Agreement, DOE circumvented the [MRA]

by its use of USEC as its sales agent [for the clean uranium] and its direct control of the disposition of the sales

proceeds.”).

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a statutory interpleader action221 in federal court).222 In either case, what matters is whether the

agency’s action has the effect of violating the Act’s “anti-augmentation principle.”223 Under this

principle, an agency may not “augment its appropriations from outside sources without statutory

authority.”224 Thus, when an agency has a third party pay expenses that the law considers

obligations of the agency, the agency improperly augments its appropriations by relying on funds

not governed by the appropriations process.225 But when an agency receives money “not available

to the United States for disposition on its own behalf,” the agency need not deposit the funds in

the Treasury because the agency cannot use the money to supplement its appropriations.226

One particular application of the MRA involves civil penalties. Congress often legislates by

prohibiting certain conduct and authorizing the imposition of penalties on those who violate the

prohibition. A penalty is money for the government, and thus, under the MRA, must be paid into

the Treasury.227 Two important consequences generally follow from this background rule.

First, GAO has concluded that when an agency alleges a violation of a statute that the agency

enforces through civil penalties, the agency’s ability to use civil penalty reductions as a

bargaining chip in settlement discussions is limited. The agency may agree to reduce or forgo

civil penalties paid under the settlement, but only if the settling party agrees to fund a remedial

project, such as environmental cleanup, that is sufficiently related to the violation.228 For

example, GAO disapproved of the Commodity Futures Trading Commission’s (CFTC’s) proposal

to “accept a charged party’s promise to make a donation to an educational institution as all or part

of a settlement agreement” resolving alleged violations of the Commodity Exchange Act

otherwise punishable through civil penalties.229 The CFTC had prosecutorial discretion and could

221 In a statutory interpleader action, one party who holds money or property (the stakeholder) asks a federal court to

resolve the contending claims of third parties (claimants) to that money or property (the stake). The stakeholder

deposits the stake “into the registry of the court,” where it remains until the court renders its judgment as to which of

the claimants is entitled to the stake. See 28 U.S.C. § 1335(a).

222 Matter of Office of Natural Res. Revenue—Disbursement of Mineral Royalties, B-321729, 2011 U.S. Comp. Gen.

LEXIS 186, at *8 (Comp. Gen. Nov. 2, 2011) (“Occasionally a government agency will receive money that is not

‘money for the Government,’ such as when the government has received the money for the benefit of another. In those

instances, neither the miscellaneous receipts statute nor the Appropriations Clause is implicated.”).

223 As discussed below, portions of the Antideficiency Act implement a similar anti-augmentation principle. See 31

U.S.C. § 1342 (generally prohibiting agency acceptance of “voluntary services”).

224 Application of the Miscellaneous Receipts Act to the Settlement of False Claims Act Suits Concerning Contracts

with the General Services Administration, 30 Op. O.L.C. at 56; see also Motor Coach Industries, Inc. v. Dole, 725 F.2d

958, 968 (4th Cir. 1984) (noting that the Federal Aviation Administration (FAA) had attempted an “end-run around

normal appropriation channels” that effectively “supplement[ed] its budget by $3 million without congressional action”

when it waived certain fees imposed on airlines in exchange for the airlines’ agreement to pay into a trust controlled by

the FAA for use in expanding bus transportation to Dulles International Airport).

225 See Matter of Office of Federal Housing Enterprise Oversight—Settlement Agreement with Freddie Mac, B-306860,

2006 U.S. Comp. Gen. LEXIS 43, at *7 (Comp. Gen. Feb. 28, 2006) (“A ‘de facto’ augmentation occurs when an

agency arranges for an outside source to defray an obligation of the agency.”).

226 Effect of 31 U.S.C. § 484 on the Settlement Authority of the Attorney General, 4B Op. O.L.C. 684, 687 (1980).

227 E.g., Pub. Interest Research Grp. v. Powell Duffryn Terminals, 913 F.2d 64, 82 (3d Cir. 1990) (“Courts have

consistently stated that penalties in citizen suits under the Act must be paid to the Treasury.”).

228 See, e.g., Decision of Comptroller General of the United States—Environmental Protection Agency Mobile Air

Source Pollution Enforcement Actions, 1992 U.S. Comp. Gen. LEXIS 1319, at *2 (Comp. Gen. July 7, 1992)

(concluding the Environmental Protection Agency (EPA) lacked authority to “allow alleged violators” of the Clean Air

Act’s mobile source air pollution requirements “to fund public awareness and other projects relating to automobile air

pollution in exchange for reductions of the civil penalties assessed against them”), recon. denied by Decision of Gen.

Counsel Hinchman, B-247155.2, 1993 U.S. Comp. Gen. LEXIS 1168 (Comp. Gen. Mar. 1, 1993).

229 Matter of Commodity Futures Trading Commission—Donations Under Settlement Agreements, B-210210, 1983

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obtain relief in a settlement that it could not impose through an adjudication.230 The statute also

tasks the CFTC with “establish[ing] and maintain[ing] research and information programs”

related to futures trading.231 Still, GAO reasoned that “there are limits to what” the CFTC could

accept under a settlement that reduced civil penalties.232 The CFTC would exceed these limits by

reducing civil penalties in exchange for a party’s donation of fund “to an educational institution

that has no relationship to the violation and that has suffered no injury from the violation.”233 That

said, Congress may grant an agency more or less authority to bargain away civil penalties, and the

language of the agency’s enforcement statutes determines the extent of its bargaining authority.234

Second, the MRA limits the discretion of courts to direct the use of civil penalties, whether as part

of a judgment or a settlement. While a federal statute may permit a private party to supplement

the federal government’s enforcement of the statute by bringing a “citizen suit,” civil penalties

obtained as a result of the private party’s litigation belong in the Treasury.235 This requirement

constrains a federal court’s ability to order that a penalty be used for a specified purpose, such as

for environmental remediation, rather than be deposited in the Treasury.236 One court has opined

that “simply depositing civil penalties into the vast reaches of the United States Treasury does not

seem to be the most effective way of combating” the violation that led to the enforcement action,

but given the limits imposed by the MRA, “once a penalty has been assessed by the court, the

penalty must be paid into the Treasury.”237

Key Takeaways: Miscellaneous Receipts Act

The MRA requires an official or agent of the United States to deposit money received for the federal

government in the Treasury, without any deduction, as soon as practicable.

An agency needs statutory authority to retain and obligate or expend the funds that it receives in the course

of its operations.

The MRA embodies an “anti-augmentation principle,” under which an agency may not supplement the

appropriations that it receives from Congress with other sources of revenue, such as by requiring a third

party to pay the agency’s costs.

U.S. Comp. Gen. LEXIS 544, at *1–2 (Comp. Gen. Sept. 14, 1983).

230 Id. at 2.

231 Id. at *1 (internal quotation marks omitted).

232 Id. at *4.

233 Id. at *5.

234 Decision of General Counsel Hinchman, B-247155.2, 1993 U.S. Comp. Gen. LEXIS 1168, at *2–4 (Comp. Gen.

March 1, 1993) (suggesting that under its authority to “compromise or remit” administrative penalties the EPA could

reduce penalties in exchange for the violator’s agreement to fund “an environmental restoration project which calls for

the acquisition and preservation of wetlands in the immediate vicinity of wetlands injured by unlawful discharges” but

disapproving of EPA’s use of this authority to “go beyond correcting the violation at issue” by reducing penalties in

exchange for the violator’s support of a public outreach campaign that bore no “nexus” or “connection” to its

violation).

235 Pub. Interest Research Grp. v. Powell Duffryn Terminals, 913 F.2d 64, 81–82 (3d Cir. 1990).

236 Id. at 82 (reversing district court order that required payment of civil penalties into a trust fund for use in

environmental remediation).

237 See United States v. Smithfield Foods, 982 F. Supp. 373, 375–76 (E.D. Va. 1997).

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The Purpose Statute

Once an agency deposits funds in the Treasury, or when the Treasury receives funds from a

nonfederal source, the funds may be withdrawn from the Treasury only “in Consequence of” an

appropriation made by Law.238 This phrase is not “self-defining,” though, and Congress has

“plenary power to give [it] meaning.”239 Congress has further defined in the Purpose Statute, 31

U.S.C. § 1301(a), how an agency may obligate appropriated Treasury funds.

Early Congresses appropriated funds with varying specificity. For example, Congress’s first

appropriations act provided an entire year’s worth of funding for the executive branch in a single

paragraph setting forth sums for the civil list,240 the Department of War, Treasury warrants, and

pensions.241 Later acts took a more granular approach to funding. For example, in 1795 Congress

set compensation for officers and employees of the Department of the Treasury on an office-byoffice basis, providing one sum for the Auditor’s office and a different sum for the Register’s

office.242 Despite this specificity, some in Congress argued that the Secretary of the Treasury

acted as if he was “at liberty to take . . . money from an item where there was a surplus”—say,

from funds appropriated for the Auditor’s office—“and apply it to another where it was

wanted”—say, to cover a shortfall in funding for the Register’s office.243

This perceived discretion troubled some Members of Congress. In March 1797, Congress

considered appropriating funds to complete construction of the U.S.S. Constitution and U.S.S.

Constellation, two of the first six frigates built for the U.S. Navy.244 Once built, though,

prominent Members of the House of Representatives did not want either frigate manned and put

to sea.245 Thus, although Congress appropriated funds for frigate construction, it further provided

that amounts appropriated “shall be solely applied to the objects for which they are respectively

appropriated.”246 The 1797 appropriations act marked the first time that Congress, in express

terms, limited the purposes for which appropriated funds could be obligated. But this early

assertion of congressional control was short lived. In 1798 the House refused to add similar

language to that year’s military appropriations act, with certain members voicing fear that the

restriction “would embarrass the proceedings of the War Department.”247

238 U.S. CONST. art. I, § 9, cl. 7.

239 Harrington v. Bush, 553 F.2d 190, 194–95 (D.C. Cir. 1977).

240 Congress appears to have borrowed and modified the phrase “civil list” from English fiscal practice, where it

“cover[ed] the expenditure of the [Monarch’s] court and of the entire central administration.” EINZIG, supra note 7, at

119. “[E]xpenses in relation to the civil list” were “chiefly for salaries.” CONTROL OF FEDERAL EXPENDITURES: A

DOCUMENTARY HISTORY 1775-1894, at 199 (Fred Wilbur Powell ed., 1939).

241 Law of Sept. 29, 1789, ch. 24, § 1, 1 Stat. 95, 95 (1789); see also Law of Feb. 11, 1791, ch. 6, 1 Stat. 190, 190

(1791) (one-paragraph appropriation).

242 E.g., Law of Jan. 2, 1795, ch. 8, § 1, 1 Stat. 405, 406 (1795).

243 6 ANNALS OF CONG. 2350 (Mar. 2, 1797) (Rep. Gallatin).

244 See IAN W. TOLL, SIX FRIGATES: THE EPIC HISTORY OF THE FOUNDING OF THE U.S. NAVY 40–44 & 61 (2006).

245 6 ANNALS OF CONG. 2350 (Mar. 2, 1797) (Rep. Gallatin) (warning that under the President’s view of his discretion

“money might be found to get the frigates to sea from the appropriations for the Military Department, if the President

should it necessary so to apply it”).

246 Law of Mar. 3, 1797, ch. 17, § 1, 1 Stat. 508, 509 (1797).

247 8 ANNALS OF CONG. 1874 (June 7, 1798). The House took this step even though, months earlier, War Department

reports had shown that the executive branch continued to use appropriations for purposes not permitted by the

appropriation. Id. at 1544–45 (Apr. 25, 1798) (Rep. S. Smith) (commenting on estimates prepared by the Quartermaster

General that showed the Army had used appropriations meant for its supply officer to build fortifications and “vessels

of war and galleys”) (asserting that “[u]nless Congress can get the Secretary of War to understand what they mean by

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By 1809, the proponents of more narrowly constraining executive discretion over appropriated

funds won out over those who preferred greater agency flexibility. That year, Congress adopted

the first permanent, government-wide purpose limitation. Congress provided that “the sums

appropriated by law for each branch of expenditure in the several departments shall be solely

applied to the objects for which they are respectively appropriated, and to no other.”248 Similar

language survives today in the Purpose Statute, which states that “[a]ppropriations shall be

applied only to the objects for which the appropriations were made except as otherwise provided

by law.”249 By requiring a connection between an appropriated purpose and a use of funds, the

Purpose Statute establishes that “for appropriated funds to be legally available for an expenditure,

the purpose of the obligation or expenditure must be authorized.”250

An agency applies the Purpose Statute by first looking to the relevant appropriation, which

identifies the “objects” for which sums are appropriated.251 While an appropriation may appear in

any statute, an annual appropriations act, for example, might consist of unnumbered paragraphs

identifying the purpose, amount, and time period of available budget authority.252 Each paragraph

corresponds to an appropriation account.253 For example, the Department of Defense

Appropriations Act for FY2020 includes an appropriation for operations-and-maintenance

(O&M) for the Department of the Army, consisting of roughly $39.5 billion made available “[f]or

expenses, not otherwise provided for, necessary for the operation and maintenance of the

Army.”254 How Congress structures appropriations affects how an agency may obligate funds,

with more narrowly phrased appropriations providing less flexibility than more generally phrased

appropriations; if, instead of confining the expenditure of money to the purposes for which it is appropriated, he

employ it in building ships of war and fortifications; they may vote $500,000,” more than double the amount under

discussion for the 1798 quartermaster appropriation, “and still be called upon to supply deficiencies”). This change in

approach likely was due to a shift in party control of the House. Democratic-Republicans controlled the House up until

the day the 1797 military appropriations act passed. The Federalists then assumed control, alongside the newly elected

Federalist President John Adams.

248 Law of Mar. 3, 1809, ch. 28, 2 Stat. 535, 535 (1809). At the same time that Congress adopted this purpose

restriction, Congress granted the President authority to transfer funds between different “branch[es] of expenditures”

during recesses of Congress, id. at 535–36, a form of standing transfer authority that would exist until repealed in 1868,

Law of Feb. 12, 1868, ch. 8, 15 Stat. 35, 36 (1868) (repealing relevant portions of the 1809 Act and all other acts

“authorizing such transfers of appropriations” and directing that “no money appropriated for one purpose shall

hereafter be used for any other purpose than that for which it is appropriated”).

249 31 U.S.C. § 1301(a).

250 U.S. Dep’t of the Navy v. Fed. Labor Rels. Auth., 665 F.3d 1339, 1348 (D.C. Cir. 2012) (Kavanaugh, J.) (quotation

marks omitted).

251 Department of Defense—Availability of Appropriations for Border Fence Construction, B-330862, 2019 U.S.

Comp. Gen. LEXIS 276, at *27 (Comp. Gen. Sept. 5, 2019) (noting that the text of an agency’s appropriations is

“paramount” in a Purpose Statute analysis).

252 Alternatively, Congress may state the period of an appropriation’s availability in provisions that apply generally.

See, e.g., Coronavirus Aid, Relief, and Economic Security Act, Pub. L. No. 116-136, Div. B, Preamble and Title XIII,

§ 23002 (2020) (providing appropriations “for the fiscal year ending September 30, 2020” and further specifying that

“[n]o part of any appropriation contained in this Act shall remain available for obligation beyond the current fiscal year

unless expressly so provided herein.”

253 GAO GLOSSARY, supra note 19, at 2.

254 Consolidated Appropriations Act, 2020, Pub. L. No. 116-93, Div. A, Title II, 133 Stat. 2317, 2321 (2019).

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appropriations.255 Besides the appropriations themselves, an agency identifies the purposes for

which appropriated funds may be obligated by looking to its authorizing statutes.256

An authorizing or appropriating statute need not specifically reference a proposed expense for

that expense to be permissible under the Purpose Statute.257 The functions of the federal

government are generally too varied to require this specificity. And even if this level of specificity

were possible, it may be undesirable; the more prescriptive an appropriation, the less flexibility an

agency has to obligate appropriations to account for unanticipated circumstances. According to

GAO, “where an appropriation is made for a particular object, by implication it confers authority

to incur expenses which are necessary or proper or incident to the proper execution of the

object.”258

Thus, an appropriation may confer authority for an agency to obligate or expend in one of two

ways: either the agency has express authority to obligate funds for an expense because the statute

refers to an expense or object, or the agency has implied authority to obligate funds for an

expense that while not mentioned in the text of the appropriations act is sufficiently related to

those expenses that are referenced.259 GAO has developed a three-factor “necessary expense” test

to determine whether an agency’s appropriations confer implied authority for a given expense.260

First, the expenditure must bear a logical or reasonable relationship to accomplishing an

authorized agency function.261 Whether a logical relationship exists depends on the facts of a

given case, including the type of proposed expense, any limitations imposed on use of the

appropriations, and the agency’s statutory mission and authorities. Broad statements about this

element have limited value, because “[t]he concept of ‘necessary expenses’ is a relative one,

255 See, e.g., Matter of Army—Availability of Procurement Appropriation for Logistical Support Contractors, B-

303170, 2005 U.S. Comp. Gen. LEXIS 71, at *7–8 (Comp. Gen. Apr. 22, 2005) (“Many agencies do not have to make

the distinction between procurement activities and operational activities that the Army must make, because the

appropriations structure for those agencies differs from that of the Army. Instead of receiving separate appropriations,

one for procurement and one for operations, those agencies may receive only one appropriation to cover all of the

agency’s expenses.”).

256 Department of Defense—Availability of Appropriations, B-330862, 2019 U.S. Comp. Gen. LEXIS 276, at *26

(noting that, along with text of the agency’s appropriations act, “[o]ther statutes, such as authorizing legislation, and the

agency’s interpretation of its appropriations are also relevant considerations”). By contrast, an agency may not justify

an obligation decision by relying on committee report directives that conflict with the text of relevant statutes. See

Election Assistance Comm’n—Obligation of Fiscal Year 2004 Requirements Payments Appropriation, B-318831, 2010

WL 176608, at *3 (Comp. Gen. Apr. 28, 2010) (“While views expressed in legislative history may be relevant in

statutory interpretation, those views are not a substitute for the statute itself where the statute is clear on its face.”).

257 See U.S. Dep’t of the Navy v. Fed. Labor Rels. Auth., 665 F.3d 1339, 1348–49 (D.C. Cir. 2012) (Kavanaugh, J.)

(considering whether a “general appropriation for an agency’s operations implicitly authorizes the purchase of bottled

water”).

258 Comptroller Gen. McCarl to Maj. Gen. Stephan, Commanding Officer, D.C. Militia, A-17673, 6 Comp. Gen. 619,

621 (1927).

259 See Department of Defense—Availability of Appropriations, B-330862, 2019 U.S. Comp. Gen. LEXIS 276, at*26.

260 See id. The Department of Justice has similarly concluded that authority to obligate or expend may be implied, and

it has provided agencies its own framework for deciding whether such implied authority exists. According to the Office

of Legal Counsel, this standard “mirrors” the GAO standard. See, e.g., State and Local Deputation of Federal Law

Enforcement Officers During Stafford Act Deployments, 2012 WL 1123840, at *8 (O.L.C. Mar. 5, 2012) (advising that

an agency may make an expenditure that it believes “bears a logical relationship to the objectives of the general

appropriation” and furthers the agency’s mission so long as the proposed expenditure does not offend a specific

limitation imposed on the general appropriation).

261 Matter of Implementation of Army Safety Program, B-223608, 1988 U.S. Comp. Gen. LEXIS 1582, at *5 (Comp.

Gen. Dec. 19, 1988) (“Where a given expenditure is neither specifically provided for nor prohibited, the question is

whether it bears a reasonable relationship to fulfilling an authorized purpose or function of the agency.”).

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defined in any given circumstance by the relationship of a particular proposed expenditure to the

specific appropriation to be charged.”262 Still, case law and administrative decisions identify rules

of thumb that bear on this element. Perhaps most importantly, an agency’s decision that a

proposed expense relates to one of its appropriations enjoys deference.263 The case law justifies

this deference by reasoning that the agency charged with carrying out a particular function is best

placed to determine the expenses necessary to carry out that function.264 When a reviewing body,

either a court or GAO, examines an agency’s spending under the Purpose Statute, the reviewing

body decides whether the agency’s relatedness determination is reasonable.265 The reviewing

body does not decide whether the agency’s use of funds was the best way to carry out its statutory

functions.266 In other words, “the necessary expense doctrine does not require that a given

expenditure be ‘necessary’ in the strict sense that the expenditure would be the only way to

accomplish a given goal.”267 Even so, there is a point past which an agency’s determination

becomes untenable. The decisions commonly state the agency’s articulated connection between

an expenditure and the appropriation to be charged can become “so attenuated as to take [the

expense] beyond the agency’s legitimate range of discretion.”268 If the agency goes to this

extreme, the Purpose Statute bars the use of funds.

Second, the proposed expense cannot be prohibited by law.269 Some expenditures may have a

logical relationship to achieving the agency’s statutory functions, but Congress may decide that

certain means to accomplish the agency’s functions are off limits to the agency. These

prohibitions exist in general and permanent laws. For example, Congress prohibits use of

appropriated funds, “in the absence of express authorization by Congress,” to lobby a “Member

of Congress, a jurisdiction, or an official of any government” to adopt or oppose any “legislation,

law, ratification, policy, or appropriation.”270 And with each appropriations act, Congress limits

262 See Matter of Air Force—Appropriations—Reimbursement for Costs of Licenses or Certificates, B-252467, 73

Comp. Gen. 171, 171 (1994).

263 See U.S. Dep’t of the Navy v. Fed. Labor Rels. Auth., 665 F.3d 1339, 1349 (D.C. Cir. 2012) (Kavanaugh, J.)

(“Whether an expenditure is reasonably necessary to accomplish the agency’s mission, in the first instance, is a matter

of agency discretion.” (internal quotation marks omitted)).

264 E.g., Customs and Border Protection Relocation Expenses, B-306748, 2006 WL 1985415, at *6 (Comp. Gen. July 6,

2006) (“As the agency charged with securing U.S. borders, Customs is in the best position to determine whether

foreign residency could compromise security procedures and practices.”).

265 Cf. Matter of Implementation of Army Safety Program, 1988 U.S. Comp. Gen. LEXIS 1582, at *6 (Comp. Gen.

Dec. 19, 1988) (“When we review an expenditure with reference to its availability for the purpose at issue, the question

is not whether we would have exercised that discretion in the same manner. Rather, the question is whether the

expenditure falls within the agency’s legitimate range of discretion . . . .”).

266 J. Gregory Sidak, Esq., Covington & Burling, Counsel for Envelope Manufacturers Ass’n of Am., B-240914, 1991

WL 202594, at *2 (Comp. Gen. Aug. 14, 1991) (responding to request for an opinion from counsel for envelope

manufacturing trade association who claimed the Federal Prison Industries, Inc. (“FPI”), a government corporation,

violated the Purpose Statute by using prisoners to manufacture envelopes, a highly automated function that the trade

association claimed conflicted with FPI’s duty of engaging in labor-intensive activities that would use as many

prisoners as possible) (“We do not opine, nor should we, on whether envelope manufacturing is the optimal choice of

industry for FPI. Rather, we conclude only that FPI has not abused its discretion in selecting that industry and, on this

basis, that expending appropriated funds to implement that choice would not violate section 1301(a).”).

267 Matter of Demolition of the Existing LaGuardia Air Traffic Control Tower, 2001 U.S. Comp. Gen. LEXIS 37, at *4

(Comp. Gen. Jan 29, 2001).

268 Matter of Food and Drug Administration—Use of Appropriations for “No Red Tape” Buttons & Mementoes, B257488, 1995 U.S. Comp. Gen. LEXIS 703, at *5 (Comp. Gen. Nov. 6, 1995).

269 See U.S. Dep’t of the Navy v. Fed. Labor Rels. Auth., 665 F.3d 1339, 1349 (D.C. Cir. 2012) (Kavanaugh, J.).

270 18 U.S.C. § 1913. The statute carves out certain communications from this lobbying ban, such as those made

“through the proper official channels” or at the request of a Member of Congress or other official. Id.; see also Matter

of The Honorable William F. Clinger Chairman Comm. on Gov’t Reform and Oversight, 1996 U.S. Comp. Gen.

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the use of available appropriations, both in the description of particular appropriations in the

unnumbered paragraphs of the act,271 and in the numbered general provisions that follow the act’s

appropriations paragraphs.272

Third, if the proposed expense has a rational connection to an appropriation and is not prohibited

by law, the agency may incur the obligation using the appropriation that it proposes to charge, but

only if the agency does not have another appropriation that more specifically relates to the

expense.273 While the first two elements of the “necessary expense” test prevent an agency from

obligating Treasury funds for a purpose not authorized by law, this last element guards against an

agency expending funds for an authorized purpose using the wrong appropriation account. This

final requirement recognizes that Congress expresses its policy decisions not only in making

budget authority available but also in setting the amount of budget authority available. The

decision to make budget authority available expresses Congress’s judgment that the federal

government should be involved in a given function, while the decision of the amount of budget

authority available expresses Congress’s judgment of what the level of that involvement should

be.274 An agency therefore may not supplement the budget authority made available for a given

purpose in a particular appropriation with budget authority from another, more general

appropriation.275

That said, if Congress provides two equally available appropriations—which is “rare”276—the

agency has discretion over which to use.277 There is an exception to this exception. GAO has

LEXIS 489, at *3 (Comp. Gen. July 5, 1996) (noting that Section 1913 is a “criminal provision” and therefore enforced

by DOJ).

271 E.g., Consolidated Appropriations Act, 2019, Pub. L. No. 116-6, Div. A, 133 Stat. 13, 16 (2019) (appropriating

$168 million for “the necessary expenses” of the Department of Homeland Security Office of Inspector General but

capping at $300,000 the Office’s expenses for “confidential operational expenses” such as payments to informants).

272

E.g., id., Div. C, § 537, 133 Stat. at 138 (“None of the funds made available under this Act to the Department of

Justice may be used . . . to prevent [particular states] from implementing their own laws that authorize the use,

distribution, possession, or cultivation of medical marijuana.”). For a discussion of limitations within appropriations

measures, see CRS Report R41634, Limitations in Appropriations Measures: An Overview of Procedural Issues, by

James V. Saturno.

273 Department of Defense—Availability of Appropriations for Border Fence Construction, B-330862, 2019 U.S.

Comp. Gen. LEXIS 276, at *30–31 (Comp. Gen. Sept. 5, 2019); see also U.S. Department of Agriculture—Economy

Act Transfers for Details of Personnel, B-328477, 2017 U.S. Comp. Gen. LEXIS 272, at *9 (Comp. Gen. Sept. 6, 2017)

(“if an expense falls specifically within the scope of one appropriation, though it may be reasonably related to the

purpose of a more general appropriation, the agency must use the more specific appropriation for the expense, unless

otherwise authorized by Congress” (emphasis added)).

274 See Nevada v. Dep’t of Energy, 400 F.3d 9, 16 (D.C. Cir. 2005) (rejecting a claim by Nevada for additional grant

funding to cover the State’s costs of participating in licensing proceedings for a nuclear waste repository at Yucca

Mountain because even though Congress made $190 million available for grants for “nuclear waste disposal activities”;

“the fact that Congress appropriated $1 million expressly for Nevada” to participate in licensing activities “indicates

that is all Congress intended Nevada to get in FY04 from whatever source”).

275 See, e.g., Unauthorized Legal Services Contracts Improperly Charged to Resource Management Appropriation, B290005, 2002 WL 1611488, at *3 (Comp. Gen. July 1, 2002) (concluding that U.S. Fish and Wildlife Service

improperly used its resource management appropriation for legal services provided by outside counsel as Congress had

more specifically appropriated funds for “necessary expenses of” the Department of Interior’s Solicitor who is

responsible for all Service legal work).

276 Matter of Commodity Futures Trading Commission—Availability of Appropriations for Inspector General

Overhead Expenses, 2015 U.S. Comp. Gen. LEXIS 426, at *6 (Comp. Gen. Sept. 29, 2015); see also Office of the

Inspector General for the Troubled Asset Relief Program—Use of Amounts for Oversight Activities, B-330984, 2020

WL 2745285, at *4 (Comp. Gen. May 27, 2020).

277 See Dep’t of Homeland Security—Use of Management Directorate Appropriations to Pay Costs of Component

Agencies, B-307382, 2006 U.S. Comp. Gen. LEXIS 138, at *12 (Comp. Gen. Sept. 5, 2006) (“Where one can

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opined that once the agency decides which of two equally available appropriations to use for a

given expense, the agency must stick to that choice when obligating funds for similar expenses in

the future.278 GAO’s rule appears to operate on the view that appropriators grow accustomed to

seeing a particular account used to satisfy particular expenses, and thus can be expected to

appropriate future sums with that practice in mind. The agency “must continue to use the same

appropriation for that purpose unless it informs Congress of its intent to change,”279 presumably

so that appropriators can account for this change.

Key Takeaways: The Purpose Statute

• The Purpose Statute confines use of appropriations to the “object for which the appropriation was made.”

• Appropriations confer express and implied authority to obligate or expend an appropriation.

• Express authority is the authority provided by the language of the appropriation.

• Implied authority is determined under the “necessary expense” test:

-

there must be a rational connection between expense and appropriation;

the expense must not be prohibited by law; and

the agency must use the appropriation that is most specific to the expense.

Transfers and Reprogramming

Congress also exerts control over agency use of appropriated funds by limiting an agency’s

ability to allocate funds using a transfer and reprogramming.280 As noted above, the unnumbered

paragraphs of an appropriations act reflect separate appropriations accounts.281 Congress’s

approach to structuring appropriations varies by agency. Some agencies see their annual

appropriations distributed across a dozen or more appropriations;282 other agencies have only a

few appropriations;283 still others receive only one.284 And in the unnumbered paragraphs of an

reasonably construe two appropriations as available for an expenditure not specifically mentioned in either

appropriation, we will accept an administrative determination as to which appropriation to charge.”).

278 See Department of the Interior—Activities at National Parks During the Fiscal Year 2019 Lapse in Appropriations,

B-330776, 2019 WL 4200991, at *10 (Comp. Gen. Sept. 5, 2019) (“[B]ecause [the National Parks Service (NPS)] has

historically charged the ONPS appropriation for such expenses, and clearly elected to continue to charge the ONPS

appropriation for such expenses in fiscal year 2019, as reflected in its congressional budget justification for fiscal year

2019, the ONPS appropriation was the only appropriation available for this purpose in fiscal year 2019”).

279 Matter of Commodity Futures Trading Commission—Availability of Appropriations for Inspector General Overhead

Expenses, B-327003, 2015 U.S. Comp. Gen. LEXIS 426, at *6 (emphasis added).

280 Because, as explained below, transfers and reprogramming are subject to different requirements, it is important to

keep the distinction between these two actions in mind. Some courts obscure this distinction by calling a transfer a

reprogramming or vice versa. See, e.g., Sierra Club v. Trump, 929 F.3d 670, 676 (9th Cir. 2019) (referring to the

administration’s transfer of funds between appropriation accounts as an instance of “reprogramming”). DOD

commonly uses the term reprogramming to refer to either transfers or reprogramming, as that latter term is defined by

GAO. See Department of Defense—Availability of Appropriations for Border Fence Construction, 2019 U.S. Comp.

Gen. LEXIS 276, at *14–15 n.6 (Comp. Gen. Sept. 5, 2019).

281 See supra note 253 and text.

282 E.g., Consolidated Appropriations Act, 2019, Pub. L. No. 116-6, Div. G, 133 Stat. 13, 395–400 (2019) (Department

of Transportation not including departmental administrations) (12 paragraphs).

283 Id., 133 Stat. at 19 (Transportation Security Administration) (three paragraphs).

284 Id., 133 Stat. at 164–65 (Consumer Product Safety Commission).

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annual appropriations act, Congress may decide to set aside budget authority by designating a

portion of that paragraph’s funds for a particular purpose.285 GAO considers each of these

designated sums as the equivalent of a separate appropriation for purposes of transfers.286

These account structures are an integral part of the federal budget process, and are used in a

variety of contexts,287 which, as relevant here, begins with the President proposing the text of

appropriations to Congress—in essence, submitting a draft appropriations act for all agencies.288

Each appropriations account typically “encompasses a number of activities or projects,”289 but the

text of the appropriations proposed by the President for inclusion in an appropriations account

will not usually delineate these various programs, projects, and activities. Instead, for annually

appropriated accounts, agencies provide this further detail to Congress in justification materials,

which the agencies develop in coordination with the Office of Management and Budget

(OMB).290 To take a recent example, the President’s FY2020 budget submission asked for

roughly $1.1 billion for the “necessary expenses of the Management Directorate for operations

and support.”291 In turn, the Department of Homeland Security (DHS) justified the President’s

request by explaining it planned to allocate such funds among eight programs, projects, and

activities that comprised the proposed operations-and-support appropriation.292 DHS planned to

allocate roughly $100 million of the $1.1 billion total to its Office of the Chief Readiness Support

Officer and another roughly $90 million to the Office of the Chief Financial Officer.293 While

agency justification materials first propose funding allocations among the programs, projects, and

activities that, in the agency’s view, comprise the account, Congress may weigh in on funding

allocations at the program, project, and activity level through committee or conference reports

285 Such designations, which typically appear in the provisos of an appropriation (i.e., the clauses of an appropriation

that begin “provided” or “provided further”), are commonly referred to as “line items.” See GAO GLOSSARY, supra

note 19, at 64 (defining a “line item,” as used in the context of an appropriations act, as typically referring to “an

individual account or part of an account for which a specific amount is available”).

286 John D. Webster Dir., Financial Services Library of Congress, B-278121, 1997 U.S. Comp. Gen. LEXIS 381, at *7

(Comp. Gen. Nov. 7, 1997) (“The fact that an appropriation for a specific purpose, such as library materials, is included

as an earmark in a general appropriation does not deprive it of its character as an appropriation for the particular

purpose designated.”). Congress has adopted this same view for some of its appropriations acts. See, e.g.,

H.R.CON.REP. NO. 116-9, at 504 (2019) (directing DHS to adhere to GAO’s view when using its statutory transfer

authority).

287 For example, the Department of the Treasury uses this account structure in its annual publication of the receipts and

outlays of the United States. See DEP’T OF THE TREASURY, COMBINED STATEMENT OF RECEIPTS, OUTLAYS, AND

BALANCES OF THE UNITED STATES GOVERNMENT (2019). The President’s annual budget submission likewise uses this

account structure.

288 31 U.S.C. § 1105(a)(5) (requiring submission of “estimated expenditures and proposed appropriations the President

decides are necessary to support” executive branch agencies “in the fiscal year for which the budget is submitted and

the 4 fiscal years after that year”); see also id. (b) (concerning expenditures and proposed appropriations for the

legislative and executive branches).

289 GAO GLOSSARY, supra note 19, at 2. As GAO explains, there is no comprehensive definition of what constitutes a

“program” (or a project or an activity) in the appropriations-law context. A “program” is “[g]enerally, an organized set

of activities directed toward a common purpose or goal that an agency undertakes or proposes to carry out its

responsibilities. . . . It is used to describe an agency’s mission, functions, activities, services, projects, and processes.”

Id. at 79.

290 See OFFICE OF MGMT. & BUDGET, EXEC. OFFICE OF THE PRESIDENT, CIRCULAR NO. A-11: PREPARATION, SUBMISSION,

AND EXECUTION OF THE BUDGET § 51.2 (rev. Dec. 2019) [hereinafter CIRCULAR NO. A-11].

291 OFFICE OF MGMT. & BUDGET, EXEC. OFFICE OF THE PRESIDENT, BUDGET OF THE UNITED STATES, FISCAL YEAR 2020:

APPENDIX 490 (2019).

292 DEP’T OF HOMELAND SECURITY, FISCAL YEAR 2020 CONGRESSIONAL JUSTIFICATION: MANAGEMENT DIRECTORATE at

MGMT-3 (2019) (presenting program activity structure for management directorate appropriations).

293 Id. at MGMT-O&S-4.

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that accompany an appropriations measure.294 (Congress could also direct funding allocations in

statute.) And while committee or conference reports may reflect that the appropriations

committees agree with the agency’s proposed allocations,295 the appropriations committees may

also indicate their rejection, in significant ways, of the agency’s proposed allocations.296

Thus, when Congress appropriates funds for an agency, it divides sums made available for

obligation by creating one or more appropriations accounts in statute, after the agency advises

Congress how it intends to allocate the funds of each account among different programs, projects,

and activities. These dividing lines—between appropriations, and within appropriations—create

two background mechanisms of agency control.297 Congress is free to displace or limit either of

these mechanisms by statute.

Statute generally prohibits the shifting of funds from one appropriation account to another, which

is referred to as a transfer.298 Specifically, “An amount available under law may be withdrawn

from one appropriation account and credited to another or to a working fund only when

authorized by law.”299 When Congress enacts a statute that authorizes a transfer, the statute is

generally referred to as transfer authority.300 The specific language used in the agency’s transfer

authority statute determines how much flexibility the agency has to both shift and use transferred

funds.301 “Except as specifically provided by law, an amount authorized to be” transferred “is

available for the same purpose and subject to the same limitations provided by the law

appropriating the amount.”302 Suppose, for example, that Congress appropriates funds for Account

A that are only available for one fiscal year, and the agency then validly transfers those funds to

Account B, the contents of which Congress made available “until expended” (i.e., on a “no-year”

basis).303 Unless the transfer authority statute specifies otherwise, the funds transferred from

294 See GAO GLOSSARY, supra note 19, at 80 (“For annually appropriated accounts, the Office of Management and

Budget (OMB) and agencies identify PPAs by reference to committee reports and budget justifications.”). For a

discussion of appropriations report language development and components, see CRS Report R44124, Appropriations

Report Language: Overview of Development, Components, and Issues for Congress, by Jessica Tollestrup.

295 For example, the appropriations committees largely accepted DHS’s proposed allocations within the FY2020 DHS

Management Directorate’s Operations-and-Support appropriation. See 165 CONG. REC. H11,025-26 (daily ed. Dec. 17,

2019) (reflecting for the DHS Management Directorate’s Offices of the Chief Readiness Support Officer and Chief

Financial Officer slight increases in funding allocations from those set forth in DHS’s budget justification materials).

296 See, e.g., id. at H11,033 (reducing, by roughly $765 million, funding allocations for the Enforcement and Removal

Operations program of the U.S. Immigration and Customs Enforcement’s Operations and Support appropriations

account, a 14.7% reduction from the level proposed by DHS).

297 The phrase “budget execution” describes the period during which an agency obligates appropriated funds. See GAO

GLOSSARY, supra note 19, at 111 (“An agency’s task during this phase is to spend the money Congress has given it to

carry out the objectives of its program legislation in accordance with fiscal statutes and appropriations, while at the

same time beginning” to formulate its budget request for the next fiscal year).

298 See id. at 95.

299 31 U.S.C § 1532.

300 See GAO GLOSSARY, supra note 19, at 96 (“Statutory authority provided by Congress to transfer budget authority

from one appropriation or fund account to another.”). Transfer authority may be established in an agency’s authorizing

statutes. See, e.g., 22 U.S.C. § 2360 (providing transfer authority under the Foreign Assistance Act of 1961). Transfer

authority may also be enacted in an appropriations acts. See infra note 301.

301 Further Consolidated Appropriations Act, 2019, Pub. L. No. 116-94, Div. A, Title III, § 312 (2019) (providing the

U.S. Department of Education (ED) with general transfer authority of up to specified amounts and subject to the

proviso that the transfer authority may not be used to create a new program, project, or activity for which no funds were

provided in the Act).

302 31 U.S.C. § 1532.

303 See GAO GLOSSARY, supra note 19, at 22.

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Account A to Account B remain available only for the one fiscal year.304 Without transfer

authority, an agency cannot “raid[] one appropriation account” to “credit another.”305 Thus, if

Congress’s goal is to deny agency flexibility in shifting funds between accounts, and no

applicable transfer authority already exists, Congress need not take any specific action. The

background prohibition already in statute306 will tie the agency’s hands.

By contrast, unless Congress directs otherwise, an agency has discretion to allocate the funds of a

single appropriation among the various programs, projects, and activities that the appropriation

could serve, including by allocating the funds in a way that departs from how the agency told

Congress it would allocate funds. The Supreme Court described the extent of an agency’s

discretion in Lincoln v. Vigil, explaining that Congress’s decision to give an agency “a lump-sum

appropriation reflects a congressional recognition that an agency must be allowed flexibility to

shift funds within a particular appropriation account so that the agency can make necessary

adjustments for unforeseen developments and changing requirements.”307

In Lincoln, Native American children sued the Indian Health Service (IHS), challenging the

decision to end its Indian Children’s Program (the Program), which provided direct clinical

services in the southwest United States. IHS chose a model in which reassigned staff served only

as consultants for nationwide programs.308 The Supreme Court unanimously reversed a lower

court decision requiring IHS to reinstate the Program. The Court explained that the IHS’s

“allocation of funds from a lump-sum appropriation” (i.e., its decision to discontinue the regional

program and fund the nationwide program) was not subject to judicial review because it was a

decision “committed to agency discretion by law.”309 Courts cannot review an agency’s funding

allocation decisions because they “require[] a complicated balancing of a number of factors

which are peculiarly within [the agency’s] expertise.”310 When an agency makes an allocation

decision, it makes a choice between competing policy interests, and that type of choice is not

generally subject to judicial review.311 And this was true even though the IHS had “repeatedly

apprised Congress of the Program’s continuing operation.”312

The same discretion exists, more or less, in all appropriations.313 Lincoln presented the case of an

agency that received all of its appropriations in a single account available for all “expenses

304 See Matter of United States Capitol Police—Advance to Volpe Center Working Capital Fund, B-319349, 2010 U.S.

Comp. Gen. LEXIS 109, at *8–9 (Comp. Gen. June 4, 2010).

305 Highland Falls-Fort Montgomery Cent. Sch. Dist. v. United States, 48 F.3d 1166, 1171 (Fed Cir. 1995) (internal

quotation marks omitted) (explaining that ED correctly declined to transfer funds from one appropriation account to

another to make up for a funding shortfall in an “entitlement” funding stream that benefited a local school district

because doing so would ignore an express congressional determination of the amounts available for the entitlement

program).

306 See 31 U.S.C. § 1352.

307 508 U.S. 182, 193 (1993) (internal quotation marks omitted).

308 See id. at 185–89.

309 Id. at 193 (internal quotation marks omitted).

310 Id. (internal quotation marks omitted).

311 Id. (“[T]he agency is far better equipped than the courts to deal with the many variables involved in the proper

ordering of its priorities.” (internal quotation marks omitted)); see also Int’l Union, UAW v. Donovan, 746 F.2d 855,

862–63 (D.C. Cir. 1984) (Scalia, J.) (“The distribution of public funds among competing social programs is an

archetypically political task, involving the application of value judgments and predictions to innumerable alternatives,

as opposed to the application of accepted principles to a binary determin

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