A partial government shutdown is entering its third week. With President Trump and congressional Democrats at loggerheads over whether to fund the President’s desired border wall, Trump is threatening to employ statutory emergency powers to justify diverting funds from other accounts for wall construction.
I won’t address here the merits of the President’s possible statutory theories (though I am skeptical). Instead, I’ll use this quick reaction to highlight the structural importance of congressional appropriations authority in our moment—a topic I addressed at length in an article in the Vanderbilt Law Review last spring.
Under the federal constitution, Congress has exclusive authority over public revenues and expenditures. Congress may “lay and collect” taxes, and “[n]o Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law.”
Congress has backed up this constitutional authority with several statutes governing the appropriations process. The Miscellaneous Receipts Act provides that all funds received by the government generally must be deposited in the treasury; the Purpose Act generally makes appropriated funds available only for the specific “objects for which the appropriations were made”; and the Anti-Deficiency Act generally prohibits government officials from expending or even “obligating” (that is, committing) funds without a supporting appropriation. Willful violations of the Anti-Deficiency Act are criminal offenses.
Why, though, do appropriations keep running out, leading to shutdowns? The key reason is that Congress typically only makes time-limited, rather than permanent, appropriations for government activities. This practice has deep roots. The British Parliament developed the practice of appropriating funds for only one year at a time to maintain an ongoing constraint on royal policy, particularly with respect to military matters. The U.S. Congress adopted the same practice from the start.
Fitting Congress’s authority over money together with the President’s constitutional authorities is sometimes a puzzle (one my article addresses at length). But when it comes to affirmative government expenditures and activities, such as funds for building a wall or enforcing immigration restrictions, Congress’s authority is plenary. Indeed, given the breadth of statutory, military, and foreign affairs authorities expressly or implicitly conferred on the executive branch at this point in history, Congress’s appropriations authority today serves much the same purpose it did for the British parliament: it subjects broad executive authorities to an ongoing legislative constraint.
Current political dynamics, however, put pressure on this structure, as the current shutdown well illustrates. In an environment of intense polarization and negative partisanship, in which politics often appears to be a zero-sum game and inflicting losses on the other side is as valuable as making positive gains, reaching agreement over government expenditures (or anything else) becomes difficult. Shutdowns may become a political weapon, with each side seeking to gain leverage by pinning blame on the other for the interruption of government services.
The executive may then be tempted to get around funding restraints through aggressive theories of executive power—precisely as Trump is threatening to do through use of emergency statutes and by seeking ways to keep agencies open. (To show the problem is at least partly structural rather than personal, it’s worth noting that President Obama employed a dubious statutory interpretation to get around a funding lapse for Obamacare subsidies.)
Things could get considerably worse. In past periods of gridlock and polarization, presidents have sometimes claimed constitutional authority to circumvent appropriations limits altogether. In particular, they have claimed—incorrectly—that the President’s responsibility to “take Care that the laws be faithfully executed” entails power to employ whatever resources are necessary to execute a given law. President Trump in fact dusted off this misguided view in a signing statement, though to my knowledge he has not acted on it. (For my rebuttal of this theory see my article and this prior blog post and this one.)
Through accumulated statutory delegations and historical precedents, the executive branch has acquired enormous power, becoming the effective center of gravity in the federal government. To the extent this arrangement inverts the classical separation of powers, giving the president rather than Congress the power of initiative over federal policy, maintaining ongoing congressional authority over appropriations may be all the more important to maintaining effective restraints on the executive. If Trump or other presidents seek to slip these bonds, courts should stand ready in any justiciable case to reign them back in.