Congress’s Power Over Appropriations: A Primer

Congress’s Power Over Appropriations: A Primer

June 16, 2020
Congress’s Power Over Appropriations: A Primer
A number of constitutional and statutory provisions provide
bills of attainder (Art. I, § 9, cl. 3). In United States v.
Congress with perhaps its most important legislative tool:
Lovett, 328 U.S. 303 (1946), the Supreme Court held that
the power to direct and control federal spending. This In
an appropriations act provision prohibiting any agency from
Focus summarizes relevant constitutional and statutory
paying the salaries of named federal employees amounted
provisions, and identifies recent developments related to
to a bill of attainder and, thus, was unconstitutional.
Congress’s power over appropriations. For a more detailed
discussion of these issues, see CRS Report R46417,
Key Terms
Congress’s Power Over Appropriations: Constitutional and
An appropriation is authority provided by statute to
Statutory Provisions, by Sean M. Stiff.
obligate and expend funds from the Treasury. An
appropriation is a type of budget authority, which is
Constitutional Authority
authority for a federal officer or employee to enter binding
Several constitutional provisions combine to provide
legal obligations on behalf of the United States. Congress
Congress its “power of the purse.” These include the
may provide budget authority in regular appropriations acts
Spending Clause (Art. I, § 8, cl. 1), which empowers
(covering a fiscal year), continuing appropriations acts
Congress to raise revenue, pay debts, and “provide for the
(covering all or part of a fiscal year and generally
common Defence and general Welfare of the United
continuing the level of appropriations provided in a prior
States.” Courts defer substantially to Congress’s decision of
appropriations act), supplemental appropriations acts
what constitutes the general welfare. In addition, the
(providing more funds for a fiscal year), or other statutes.
Appropriations Clause (Art. I, § 9, cl. 7) states that “[n]o
Money shall be drawn from the Treasury, but in
An appropriations act consists of unnumbered paragraphs,
Consequence of Appropriations made by Law.” Congress
each corresponding to an appropriations account. An
must authorize any expenditure of Treasury funds.
appropriations act may also include numbered general
provisions that set conditions or limitations on the use of
Congress’s constitutional power over federal funds is
appropriations. Congress grants appropriations in a specific
subject to three limitations.
amount, for a specific time period and purpose, and subject
to conditions specified in the appropriations act or in other
First, the text or structure of the Constitution may limit
law.
Congress’s authority to appropriate funds in a manner that
would diminish the independence of the other branches of
Statutory Provisions
the federal government. The Constitution constrains
Congress implements its constitutional power of the purse
Congress’s authority to change the compensation of the
with several generally applicable fiscal control statutes.
President or of federal justices or judges (Art. II, § 1, cl. 7
These statutes govern the handling of federal funds
and Art. III, § 1). In United States v. Klein, 80 U.S. 128
throughout their life cycle, from initial receipt by the
(1872), the Supreme Court held that Congress could not
agency through obligation and expenditure.
condition the availability of Treasury funds in a manner
that, if honored, would both nullify the effect of a pardon, a
Miscellaneous Receipts Act
power the Constitution vests exclusively in the President,
During its operations, an agency may receive money from a
and infringe upon the powers of the federal courts.
third party. For example, in administering a program, an
agency might collect a tax, duty, or fee. The Miscellaneous
Second, the Supreme Court has held that the federal system
Receipts Act (31 U.S.C. § 3302) requires officials who
of government established in the Constitution affects how
receive money on the government’s behalf to “deposit the
Congress may offer funds to the states. For example,
money in the Treasury as soon as practicable without
Congress may require a state to set its minimum drinking
deduction for any charge or claim.” When the official
age at 21 to receive federal highway funds. However, as the
deposits the money in the Treasury, the Appropriations
Supreme Court explained in South Dakota v. Dole, 483
Clause is triggered, meaning that the money may later be
U.S. 203 (1987), and later cases, the conditions Congress
withdrawn only with an “Appropriation[] made by Law.”
places on funds offered to states must be unambiguous and
Thus, as a default rule, an agency may not fund its
relate to a federal interest in the program, and Congress
operations using money the agency collects in the ordinary
cannot threaten to withhold a sum of money so great that
course of its operations. Congress may provide an
the state is “coerced” into accepting Congress’s conditions.
exception to this default rule by specifying in statute that
funds the agency receives are available to the agency to pay
Third, the Constitution’s protections for individual rights
certain expenses.
may limit Congress’s authority to appropriate funds. For
example, the Constitution prohibits Congress from passing
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Congress’s Power Over Appropriations: A Primer
The Purpose Statute
whether to enact such a law, the affected budget authority
The Purpose Statute (31 U.S.C. § 1301(a)) defines how an
may be withheld from obligation for 45 days of continuous
agency may apply appropriations. “Appropriations shall be
congressional session.
applied only to the objects for which the appropriations
were made except as otherwise provided by law.” Under the
The ICA also requires the President to transmit a special
Government Accountability Office’s (GAO’s) “necessary
message to Congress whenever the President, the OMB
expense test,” an agency may obligate an appropriation
Director, or a department or agency officer or employee
where there is a logical relation between an expense and the
proposes a deferral of budget authority. A deferral is any
appropriation, the expense is not prohibited by law, and no
action that withholds, delays, or otherwise precludes the
other appropriation more specifically covers the expense.
obligation or expenditure of budget authority. An agency
may only defer budget authority to provide for
Antideficiency Act
contingencies, to achieve savings made possible by changes
The Antideficiency Act (31 U.S.C. §§ 1341-42, 1349-51,
in requirements or efficiencies, or as specifically provided
1511-19) ensures that obligations and expenditures remain
by law.
within the amounts granted by Congress. A federal officer
or employee “may not make or authorize an expenditure or
Acting under the ICA, Congress may respond to rescission
obligation exceeding an amount available in an
proposals by enacting a rescission bill to cancel budget
appropriation or fund for the expenditure or obligation.”
authority, and either house may pass an impoundment
resolution disapproving of a proposed deferral. As an added
This prohibition has at least two effects: an agency may not
measure of oversight, GAO is tasked with monitoring
obligate more than its total available budget authority, and
agency compliance with the ICA. When an agency fails to
it may not obligate budget authority in a way that violates a
make budget authority available as required by the ICA,
cap or condition applicable to that authority. To take an
GAO has statutory authority to sue the agency to make the
example, Congress might appropriate $1 billion for an
budget authority available.
agency to enforce federal criminal law, set aside no more
than $100 million of that sum for drug prosecutions, and
Recent Developments
prohibit use of the funds to prevent a state from
Congress’s power over appropriations has drawn repeat
implementing its medical marijuana laws. Thus, the agency
attention during the 116th Congress, which began in the
may not obligate more than the $1 billion provided (i.e.,
midst of the longest partial U.S. government shutdown in
more than the total appropriation); obligate more than $100
history, based on a lapse in certain agencies’ appropriations.
million for drug prosecutions (i.e., beyond a cap within the
In January 2019, Congress amended the Antideficiency Act
appropriation); or obligate to prevent a state from
so that agency staff furloughed as a result of a lapse in
implementing its medical marijuana laws (i.e., in disregard
appropriations or employed on an excepted basis during a
of a condition).
shutdown are paid for the period of the shutdown once
Congress appropriates funds to end the shutdown. The
An officer or employee who violates the Antideficiency Act
shutdown also led to GAO findings that several agencies
“shall be subject to appropriate administrative discipline,”
violated the Antideficiency Act by incurring obligations
and, for willful violations, faces a criminal fine,
during the appropriations lapse.
imprisonment, or both. An agency also violates the Act
when it incurs obligations after its appropriations have
Legislators have proposed amending the fiscal control
lapsed. A head of an agency must immediately report any
statutes. In November 2019, the Senate Committee on the
violations to the President, Congress, and GAO.
Budget reported S. 2765, the Bipartisan Congressional
Budget Reform Act of 2020. Among its provisions, S. 2765
Under the Antideficiency Act, the President, acting through
would require reporting related to apportionments and also
the Office of Management and Budget (OMB), must
direct agencies to obligate budget authority that is proposed
apportion a fixed-period appropriation by time period,
for rescission, reserve, or deferral before the end of its
function, or a combination of the two. Apportionment
period of availability. S. 2765 would also authorize
generally ensures that the agency receiving the
appropriate administrative discipline for those who violate
appropriation does not use it at a rate that would require
S. 2765’s relevant provisions. In April 2020, H.R. 6628, the
another appropriation later in the same fiscal year. OMB
Congressional Power of the Purse Act, was introduced in
may reserve funds from apportionment to provide for
the House. In June 2020, companion legislation, S. 3889,
contingencies, to achieve savings made possible by changes
was introduced in the Senate. The companion bills include
in requirements or efficiencies, or as specifically provided
provisions similar to those in S. 2765 noted above. In
by law.
addition, the companion bills would modify, among other
things, how an agency reports Antideficiency Act
Impoundment Control Act
violations. The companion bills would also reduce the time
Congress monitors agency delay in making funds available
within which GAO may bring suit to enforce provisions of
for obligation or expenditure through the Impoundment
the ICA or to compel an agency to provide information.
Control Act of 1974 (ICA) (2 U.S.C. § 681, et seq.). The
ICA allows the President to transmit a special message to
Sean M. Stiff, Legislative Attorney
Congress containing a rescission proposal, which is a
request that Congress pass a rescission bill that cancels
IF11577
existing budget authority. While Congress considers
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Congress’s Power Over Appropriations: A Primer

Disclaimer
This document was prepared by the Congressional Research Service (CRS). CRS serves as nonpartisan shared staff to
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