Congress’s Power Over Appropriations: Constitutional and Statutory Provisions

Congress’s Power Over Appropriations: Constitutional and Statutory Provisions

Congress’s Power Over Appropriations:
June 16, 2020
Constitutional and Statutory Provisions
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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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
A “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
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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strings; it is that, as generally understood, Congress alone has access.9 Thus, the “bedrock power-
of-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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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 GAO-
executive 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 NEW-
HAMPSHIRE 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 well-
known 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-of-
powers 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 self-
executing 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 prompt-
deposit 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, B-
307137, 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-by-
office 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, B-
257488, 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, B-
290005, 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 determination.”).
312 Lincoln, 508 U.S. at 187.
313 Cf. Kate Stith, Rewriting the Fiscal Constitution: The Case for Gramm-Rudman-Hollings, 76 CAL. L. REV. 593, 612
(1988) (noting that the concepts of “‘line-item’” and “‘lump-sum’” appropriations are “relative concepts” in that
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necessary” to carry out its mandate.314 As noted above, though, Congress often divides an
agency’s appropriations—for example, Congress provides three appropriations related to the
DHS Management Directorate.315 The agency cannot transfer funds between accounts without
statutory transfer authority. But when the question is how to allocate funds within an account and
it is “impossible to tell from the face of the statute how the appropriation is to be allocated among
the items for which it is available,”316 the agency may allocate funds as it sees fit to serve
permissible statutory purposes covered by the appropriation.
As noted above, an agency may even obligate funds in a manner that diverges from the
representations it made when it justified its budget request or that differs from how Congress
indicated it expected funds would be allocated, as expressed in a committee report accompanying
the appropriations act. When an agency takes such an action, the agency engages in
reprogramming.317 An agency is able to reprogram because neither justification materials nor
committee reports, on their own, limit the agency’s authority to manage appropriated funds.318
Rather, “[a]n agency’s representation to Congress as to how it proposes to allocate appropriated
funds is legally binding on the agency only to the extent that its proposed allocation finds its way
into the language of the appropriation statute itself.”319 Without limitations in statute, an agency
engages in reprogramming “at the peril of strained relations with Congress,” but that is only a
“practical” constraint, not a legal one.320
When Congress seeks to impose legal constraints on allocation discretion, it must do so by
statute. Of course, one way is for Congress to include more prescriptive language in the text of an
appropriation, to specify, with greater detail, the objects for which the appropriation is

“[e]ach ‘line item’ is, in turn, a ‘lump sum’ for all objects or activities within that line item”).
314 See Joint Resolution Making Continuing Appropriations for Fiscal Year 1985, Pub. L. No. 98-473, 98 Stat. 1837,
1863–64 (1984).
315 See Consolidated Appropriations Act, 2020, Pub. L. No. 116-93, Div. D, 133 Stat. 2317, 2503 (2019) (operations
and support; procurement, construction, and improvements; and the federal protective service).
316 In the Matter of the Newport News Shipbuilding and Dry Dock Company, B-184830, 55 Comp. Gen. 821, 820–21
(1976) (single appropriated sum available for two ships could be obligated to construct only one ship despite committee
report that purported to divide the amount between the two ships).
317 GAO GLOSSARY, supra note 19, at 85 (reprogramming) (“Shifting funds within an appropriation or fund account to
use them for purposes other than those contemplated at the time of appropriation; it is the shifting of funds from one
object class to another within an appropriation or from one program activity to another. While a transfer of funds
involves shifting funds from one account to another, reprogramming involves shifting funds within an account.”).
318 See Salazar v. Ramah Navajo Chapter, 567 U.S. 182, 200 (2012) (“Indicia in committee reports and other legislative
history as to how the funds should or are expected to be spent do not establish any legal requirements on the agency.”
(internal quotation marks omitted)). GAO has opined, though, that when Congress expressly incorporates into an
appropriations act funds allocations set forth in an accompanying committee report or explanatory statement in a
manner that allows the agency and others to “ascertain with certainty the amounts and purposes for which . . .
appropriations are available,” the committee report allocations bind the agency. Consolidated Appropriations Act of
2008—Incorporation by Reference, 2008 U.S. Comp. Gen. LEXIS 41, at *18 (Comp. Gen. Feb. 25, 2008). Along
similar lines, DOJ has argued in that such incorporated allocations are “legally binding restrictions” on an agency’s use
of an appropriation. See Brief of Defendant-Appellant United States at 20, South Carolina v. United States, No. 19-
2324 (Fed. Cir. Dec. 18, 2019) (arguing that allocation tables incorporated by reference into an appropriations act
“identify with certainty the amounts and purposes for which these appropriations are available and serve as legally
binding restrictions on the agency’s appropriations. Thus, [the Department of Energy] may not use appropriated funds
for [programs, projects, or activities] not identified in the tables.”)
319 Use of Law Enf’t Assistance Admin. Program Grant Funds for Admin. Purposes, 4B Op. O.L.C. 674, 675 (1980).
320 The Honorable Lowell Weicker, Jr., Chairman, Chairman, Subcommittee on Labor, Health and Human Services,
and Education, Committee on Appropriations, United States Senate, B-217722, 64 Comp. Gen. 359, 361–62 (1985).
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available.321 This more prescriptive approach may come at the cost of limiting the agency’s
ability to respond to unforeseen circumstances. Reprogramming permits an agency to make “new
and better applications of funds” that become apparent only after the “long period of time that
exists between an agency’s justification of programs and its actual expenditure of funds,”322 albeit
at the potential cost of an agency using its discretion in a way Congress might not favor.
So to maintain the potential benefits of reprogramming while also monitoring and influencing its
use, another common approach is for Congress to enact a “report-and-wait” provision. Typical
report-and-wait language will state that “[n]one of the funds provided by this Act . . . shall be
available for obligation or expenditure through a reprogramming of funds that creates or
eliminates a program, project, or activity” or that exceeds a given dollar amount.323 Thus, when
an agency’s proposed reprogramming does not meet these conditions or thresholds—because, for
example, the proposed reprogramming involves a small amount of funding—the agency need not
provide notice to Congress before the reprogrammed funds are available for obligation or
expenditure. Congress usually phrases reprogramming provisions as conditions on the availability
of appropriated funds—that is, the provisions state that no funds are “available for obligation or
expenditure” unless the reprogramming is performed under the conditions set forth in the report-
and-wait provision.324 When an agency violates an applicable reprogramming provision, in
GAO’s view the agency has obligated funds not available for that purpose in violation of the
Antideficiency Act.325
The Supreme Court has observed that report-and-wait provisions are permissible,326 as has the
executive branch.327 But both the Department of Justice (DOJ) and GAO are careful to distinguish
between a permissible report-and-wait provision and what could be called a “report-and-approve”
provision. Under the latter provision, Congress conditions the availability of appropriated funds
for certain purposes by requiring an agency to give notice to relevant committees of the proposed
use and then receive committee approval for the use.328 DOJ has long argued that such provisions

321 See, e.g., Consolidated Appropriations Act, 2020, Pub. L. No. 116-94, Div. D, 133 Stat. 2317, 2507 (2019)
(appropriating $8,032,801,000 for U.S. Immigration and Customs Enforcement’s Operation and Support Account “of
which not less than $6,000,000 shall remain available until expended for efforts to enforce laws against forced child
labor”).
322 Louis Fisher, Presidential Spending Discretion and Congressional Controls, 37 LAW AND CONTEMPORARY POLITICS
135, 150 (1972).
323 Consolidated Appropriations Act, 2019, Pub. L. No. 116-6, Div. A, § 503(a), 133 Stat. 13, 37 (2019).
324 Id.
325 See, e.g., U.S. Secret Service—Statutory Restriction on Availability of Funds Involving Presidential Candidate
Nominee Protection, B-319009, 2010 U.S. Comp. Gen. LEXIS 78, at *9–10 (Comp. Gen. Apr. 27, 2010) (concluding
that the U.S. Secret Service violated the Antideficiency Act by spending $5.1 million more on candidate-protection
activities during the 2008 presidential election than specified in the explanatory statement that accompanied the
FY2009 Department of Homeland Security Appropriations Act). While DOJ does not appear to have expressly
weighed in on this particular question, in line with GAO’s view, agencies have reported Antideficiency Act violations
after failing to follow reprogramming provisions. See Letter to the Honorable Gene Dodaro, Comptroller General of the
United States, Government Accountability Office, from the Honorable Rebecca Blank, Acting Secretary, Department
of Commerce, at 2 (Nov. 21, 2012) (observing that “where, as here, an agency incurs obligations against reprogrammed
funds where proper notice was not provided, it has incurred obligations in excess of available appropriations”).
326 See I.N.S. v. Chadha, 462 U.S. 919, 935 n.9 (1983) (noting that the Court had approved of a “report and wait”
provision that prevented court rules from taking effect for a specified period after promulgation so that Congress could
review the rules and if necessary “pass legislation barring their effectiveness”).
327 Reprogramming—Legislative Committee Objection, 1 Op. O.L.C. 133, 133–34 (1977) (explaining that DOJ regards
report-and-wait provisions as “constitutionally permissible”).
328 See, e.g., Consolidated Appropriations Act, 2019, Pub. L. No. 116-6, Div. B, 133 Stat. 13, 74 (2019) (permitting the
transfer of unobligated funds to the Department of Agriculture’s Working Capital Fund but making such funds
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are unconstitutional because they “vest the power to administer [a] particular program” in both
the agency and the appropriations committees, “with the overriding right to forbid action reserved
to the two [Appropriations] Committees.”329 Based on this separation-of-powers objection, at
least as far back as the Eisenhower Administration, Presidents of both parties have “explicitly
instructed their subordinates” that report-and-approve conditions are not binding.330 But the
executive branch does not ignore such provisions altogether. When presented with a report-and-
approve condition, Presidents of both parties have instructed subordinates to comply with the
notice portion of the statute and then “accord the recommendations of such committee all
appropriate and serious consideration.”331 Thus, agencies may strive to receive committee buy-in
on a proposed use that is covered by a report-and-approve provision,332 but the executive branch
does not view committee buy-in as necessary before funds may be obligated.
GAO has taken a similar position. In 1983, the Supreme Court issued its landmark decision in
I.N.S v. Chadha, invalidating a “one-house veto” provision of the Immigration and Nationality
Act, under which either house of Congress could overturn a decision of the Attorney General to
suspend an alien’s deportation.333 The Court reasoned that, having delegated authority to suspend
an alien’s deportation to the Attorney General, “Congress must abide by its delegation of
authority until that delegation is legislatively altered or revoked” through legislation passed by
both houses of Congress and either signed into law by the President or enacted over the
President’s veto.334 Given this holding, in 1984 GAO assessed whether commonly used
conditions on appropriated funds would be permissible under Chadha. GAO advised that a
“statutory requirement” of “committee approval of or a committee veto over reprogrammings of
lump-sum appropriations” would conflict with Chadha.335

available for obligation only upon “written notification to and prior approval of the Committees on Appropriations of
both Houses of Congress”).
329 Authority of Congressional Committees to Disapprove of Action of Executive Branch, 41 Op. Att’y Gen. 230, 231
(1955).
330 Constitutionality of Comm. Approval Provision in Dep’t of Hous. & Urban Dev. Appropriations Act, 6 Op. O.L.C.
591, 591–92 (1982).
331 1 PUB. PAPERS OF PRESIDENT BARACK H. OBAMA 217 (2009) (statement on signing the Omnibus Appropriations Act,
2009); see also PRESIDENT DONALD J. TRUMP, STATEMENT ON SIGNING THE FURTHER CONSOLIDATED APPROPRIATIONS
ACT, 2020, DCPD201900082, at *2 (Dec. 20, 2019) (similar language).
332 See, e.g., 2A DEP’T OF DEFENSE, FINANCIAL MANAGEMENT REGULATION 1-16, ¶ 51 (“Reprogramming is generally
accomplished pursuant to consultation with and approval by appropriate congressional committees.”).
333 462 U.S. 919, 924–25 (1983) (explaining that upon passage by one house of a resolution disapproving the Attorney
General’s decision to suspend deportation, statute stated that the Attorney General “shall thereupon deport such alien or
authorize the alien's voluntary departure at his own expense under the order of deportation in the manner provided by
law” (internal quotation marks omitted)).
334 Id. at 954–55.
335 The Honorable Silvio O. Conte, Ranking Minority Member, Committee on Appropriations, House of
Representatives, B-196854, 1984 WL 262173, at *2 (Comp. Gen. Mar. 19, 1984).
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Key Takeaways: Transfers and Reprogramming

Each appropriation may consist of several programs, projects, or activities.

An agency must have statutory authority to debit one appropriation to the credit of another. The movement
of funds from one appropriation account to another is a transfer.

An agency has implied authority to allocate funds within an appropriation, shifting funds from one program,
project, or activity to another, although Congress typically requires notice of such reprogramming.
The Antideficiency Act
The statutory provisions and legal doctrines discussed so far provide structure to Congress’s
appropriations power, requiring agencies to deposit public money in the Treasury and draw
Treasury funds only as authorized by statute. Except for the MRA,336 though, none of these
statutes or legal doctrines, on their own, authorizes penalties for agency officials who exceed their
authority. The Purpose Statute, itself, sets no penalty for an executive branch official who fails to
heed the requirement that “[a]ppropriations shall be applied only to the objects for which the
appropriations were made.”337 Likewise, the general statutory prohibition on transferring funds
between appropriations does not specify a consequence for a transfer that lacks statutory
authority,338 and limits on reprogramming authority likewise do not mete out sanctions for
disregarding reprogramming notice provisions. Instead, Congress imposes penalties on those who
obligate or expend funds beyond statutory authority through the collection of statutory provisions
now known as the Antideficiency Act.
Limits on Obligations or Expenditures
The Antideficiency Act’s prohibitions and limitations date to 1870, and grew incrementally over
time as Congress dealt with two related concerns. First, Congress confronted the common agency
practice of obligating appropriated funds to create “coercive deficiencies.”339 Congress would
appropriate an agency funds intended to last the fiscal year. Later, the agency would exhaust the
appropriation before the end of the fiscal year. The agency would request a deficiency
appropriation from Congress, at which point, practically speaking, Congress’s only choice was to
provide the funds requested.340 Second, agencies obligated appropriations without statutory
authority. While these improper obligations may not have caused the agency to exceed its total

336 As noted above, an officer or employee who violates the MRA’s prompt-deposit requirement “may be removed
from office” and “may be required to forfeit to the Government any part of the money held by the official or agent and
to which the official or agent may be entitled.” 31 U.S.C. § 3302(d).
337 See id. § 1301(a).
338 See id. § 1532.
339 Matter of Project Stormfury—Austl.—Indemnification for Damages, B- 198206, 59 Comp. Gen. 369, 372 (Comp.
Gen. Apr. 4, 1980) (“The Anti-deficiency Act was born as a result of Congressional frustration at the constant parade of
deficiency requests for appropriations it was receiving in the 19th century and early 20th century, generated, it
believed, by the lack of foresight and careful husbanding of funds by Executive branch agencies . . . . We term such
commitments ‘coercive deficiencies’ because the Congress has little choice but to appropriate the necessary funds.”);
see also 39 CONG. REC. 3689 (daily ed. Feb. 28, 1905) (Rep. Hemenway) (noting that agencies spending into
deficiency was “an abuse that has continued for many, many years”); CONG. GLOBE, 28th Cong., 1st Sess. 73 (1843)
(Rep. C. Johnson) (complaining that Congress had “appropriated $1,000,000 for certain objects” but that the Secretary
of the Navy “had gone on to employ hands enough to exhaust $2,000,000” to lay the groundwork for “additional
expenditures to keep these men in employ, and thr[o]w the odium of refusing to continue them on Congress”).
340 See, e.g., 39 CONG. REC. 3782 (daily ed. Mar. 1, 1905) (Rep. Underwood) (lamenting that, when presented with a
request for a deficiency appropriation “we must pay or stop the running of the government”).
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available budget authority, improper obligations often contributed to deficiencies.341 Both
practices undermined congressional control over Treasury funds, because the agency effectively
dictated to Congress its total funding or its allowed expenses.342
The Antideficiency Act responds to these related concerns.343 The Act generally prohibits an
agency from incurring obligations without available appropriations. In its central prohibition, the
Act provides that
an officer or employee of the United States Government or of the District of Columbia
government may not make or authorize an expenditure or obligation exceeding an amount
available in an appropriation or fund for the expenditure or obligation [or] involve either
government in a contract or obligation for the payment of money before an appropriation
is made unless authorized by law.344
GAO and the executive branch disagree over the types of obligations that trigger an
Antideficiency Act violation under its central prohibition. In line with GAO, the executive branch
sees two possible violations. First, the agency may obligate or expend funds beyond total
appropriations.345 Second, as noted above, the Act prohibits obligations or expenditures
“exceeding an amount available in an appropriation or fund for the expenditure or obligation.”346
According to DOJ, this important modifier, available, imparts a requirement of “legal
permissibility” for obligations and expenditures.347 That is, the agency must ensure that each of its
obligations or expenditures are for purposes permitted by law. DOJ recognizes that Congress may
constrain the scope of legally permissible spending not only in setting overall funding levels, but
also by including “caps” or “conditions” in an appropriations act.348 A cap is an appropriations
act’s prohibition on obligating or expending funds “in excess of a designated amount for a
particular purpose,” while a condition is an appropriations act’s prohibition on obligating or
expending funds “for a particular purpose.”349 Thus, if an officer or employee obligates or
expends funds in violation of either a condition or a cap that is contained in an appropriations act,

341 See id. at 3781 (Rep. Underwood) (explaining that the Department of the Navy had exhausted its FY1905
appropriation in less than six months, requiring a deficiency appropriation, in part because, without authorization, the
Navy had improperly spent $500,000 on ship gun sights using funds “ordinarily used for the maintenance and care of
ships”).
342 See, e.g., 40 CONG. REC. 1273 (daily ed. Jan. 19, 1906) (Rep. Littauer) (“We find that whenever we cut down . . . the
amounts estimated [by the agency] for any given object to what, in the judgment of Congress, is ample provision . . .
those in charge of bureaus arbitrarily proceed to expend amounts under the appropriation as though their estimates had
been allowed in full, giving no attention to the mandate contained in the appropriation determined by Congress.”).
343 Applicability of the Antideficiency Act to a Violation of a Condition or Internal Cap Within an Appropriation, 25
Op. O.L.C. 33, 54 (2001) (explaining that through the Antideficiency Act Congress “control[s] . . . both the amount and
objects of executive branch spending”).
344 31 U.S.C. § 1341(a)(1)(A)–(B). The Act also prohibits expenditures or obligations of, or contracting for the payment
of, “money required to be sequestered” under the Balanced Budget and Emergency Deficit Control Act of 1985. See id.
(c)–(d).
345 Applicability of the Antideficiency Act to a Violation of a Condition or Internal Cap Within an Appropriation, 25
Op. O.L.C. at 37.
346 31 U.S.C. § 1341(a) (emphasis added).
347 Applicability of the Antideficiency Act to a Violation of a Condition or Internal Cap Within an Appropriation, 25
Op. O.L.C. at 38 (“The fact that Congress did not simply prohibit expenditures in excess of total appropriations
suggests that the term ‘available’ should be construed more broadly to encompass the concept of legal permissibility.”).
348 See id. at 33–34.
349 Id.
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DOJ and GAO agree that that individual violates the Antideficiency Act, even if, in making the
improper obligation or expenditure, the agency has not exceeded its total appropriations.350
DOJ’s and GAO’s interpretations diverge, though, on the question of whether an individual
violates the Act when he or she obligates or expends funds in violation of a cap or condition that
was enacted into law at a different time than the particular appropriations act that made the funds
at issue available. The Act’s central ban on obligations “exceeding an amount available in an
appropriation or fund for the expenditure or obligation” requires an agency to determine whether
an obligation or expenditure exceeds “amount[s] available.” According to DOJ, to give meaning
to all parts of the statute, the agency “must look [only] to the applicable legislative act making the
amounts in question available for obligation or expenditure” to identify a cap or condition the
violation of which leads to an Antideficiency Act violation.351 GAO takes a broader view: “If a
statute, whether enacted in an appropriation or other law, prohibits an agency from using any of
its appropriations for a particular purpose, the agency does not have an amount available in an
appropriation for that purpose,” and action by the agency to obligate funds for such a purpose will
violate the Antideficiency Act.352
This point of disagreement may be significant, because Congress often enacts caps or conditions
on the obligation or expenditure of appropriations in general legislation that Congress enacts
separately from its appropriations acts.353 Congress also routinely enacts caps and conditions in
one appropriations act that apply “government-wide,” including to agencies funded under
separately enacted appropriations acts.354 And when it appropriates funds, Congress generally
does not “incorporate . . . by reference” the caps or conditions in general law into each agency’s
appropriations.355 Thus, when an agency obligates or expends funds in violation of a cap or
condition not in the act providing the relevant appropriation, according to DOJ, the obligation or
expenditure does not violate the Antideficiency Act.
Congress recognized that agencies could pressure Congress into making deficiency
appropriations not only by directly obligating or expending funds, but also by accepting services
from a person who would then expect payment for the services, even though the person may have

350 See id. at 52 (noting that DOJ’s view was “consistent with that of the Comptroller General”).
351 Use of Appropriated Funds to Provide Light Refreshments at EPA Conferences, 31 Op. O.L.C. 54, 67 (2007); see
also id. at 66 (“a proper reading [of the statute] reinforces that the [Antideficiency Act] does not impose a roving
requirement of ‘availability’ under all possibly applicable law, but rather requires ‘availability’ in the particular
appropriation for the expenditure or obligation”); see also CIRCULAR NO. A-11, supra note 290, at § 145.2 (directing
agencies to the Department of Justice Office of Legal Counsel’s (OLC) 2007 opinion for guidance on obligations that
violate “a funding restriction in an Act other than an appropriations act” (emphasis added)).
352 Antideficiency Act—Applicability of Statutory Prohibitions on the Use of Appropriations, B-317450, 2009 U.S.
Comp. Gen. LEXIS 155, at *11–12 (Comp. Gen. Mar. 23, 2009) (internal quotation marks omitted) (emphasis added).
353 See, e.g., 42 U.S.C. § 16313(c)(4) (“No funds allocated to the” Department of Energy’s Solar Fuels Research
Initiative “may be obligated or expended for commercial application of energy technology . . . .”), enacted by
Department of Energy Research and Innovation Act, Pub. L. No. 115-246, § 303, 132 Stat. 3130, 3143 (2018).
354 For example, Congress’s annual Financial Services and General Government appropriations acts contains
“government-wide” “general provisions.” See Consolidated Appropriations Act, 2020, Pub. L. No. 116-93, Div. C, tit.
VII, § 709, 133 Stat. 2317, 2486 (2019) (prohibiting use of “funds made available pursuant to the provisions of this or
any other Act” to implement a regulation that Congress has disapproved through a joint resolution (emphasis added)).
355 Use of Appropriated Funds to Provide Light Refreshments at EPA Conferences, 31 Op. O.L.C. at 62 n.2 (suggesting
Congress could respond to DOJ’s reading of the Antideficiency Act as applying to only the “internal” caps and
conditions of an appropriations act through such references to general law); see also Antideficiency Act—Applicability
of Statutory Prohibitions, B-317450, 2009 U.S. Comp. Gen. LEXIS 155, at *8 (“[DOJ] suggests that Congress would
have to specifically incorporate by reference every statutory provision of general applicability in order for the
restriction to be ‘in an appropriation.’”).
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had no legal right to payment.356 When presented with such a claim in 1884—individuals had
been “temporarily employed . . . in the [Department of the Interior’s] Indian Office” without
funds to pay them—Congress voted a deficiency appropriation but generally prohibited agencies
from accepting “voluntary services” “in excess of that authorized by law” in the future.357
Congress added this prohibition to the Antideficiency Act itself in 1905.358 The Act now bars
agencies from accepting “voluntary services” or employing “personal services exceeding that
authorized by law except for emergencies involving the safety of human life or the protection of
property.”359 The Act further specifies that its emergency exception “does not include ongoing,
regular functions of government the suspension of which would not imminently threaten the
safety of human life or the protection of property.”360 DOJ has interpreted the statute, though, to
preserve an agency’s ability to accept “gratuitous” services,361 defined as services offered by a
person who holds a position that the law allows to be uncompensated.362

Key Takeaways: Limits on Obligations or Expenditures Under the
Antideficiency Act

An agency may not exceed total available appropriations, meaning the agency may not obligate or expend a
lapsed or depleted appropriation.

An agency may not exceed a cap within an appropriation, meaning the agency may not incur obligations or
expenditures beyond the amount available within an appropriation for a given purpose, even if funds remain
for other purposes.

An agency must comply with a condition attached to an appropriation.

An agency may not accept voluntary services or accept personal services beyond the amount authorized in
law, except in cases of emergency.

356 Recess Appointment of Sam Fox, B-309301, 2007 WL 1674285, at *3–4 (Comp. Gen. June 8, 2007) (explaining
that Congress felt a “moral obligation” to pay agency employees who an agency had “coerce[d]” to “volunteer”
services to the agency).
357 Law of May 1, 1884, ch. 37, 23 Stat. 15, 17 (1884). One court stated that Congress adopted the voluntary-services
ban “based in part on the unsatisfactory history of the conduct of private parties delegated to exercise coercive
governmental authority,” offering the example of “private detective agency personnel” who served as “deputy police
officers in the nineteenth century.” Suss v. Am. Soc’y for the Prevention of Cruelty to Animals, 823 F. Supp. 181, 189
(S.D.N.Y. 1993). No member appears to have justified the ban in this way, and in 1893, before Congress added the
voluntary services ban to the Antideficiency Act, Congress separately passed the Anti-Pinkerton Act in response to the
use of private detective agencies. See S. REP. NO. 88-447 at 2 (noting, as background for the Anti-Pinkerton Act, the
role of private detective agencies in labor disputes of the 1880s and 1890s, including railway strikes); see also 5 U.S.C.
§ 3108 (“An individual employed by the Pinkerton Detective Agency, or similar organization, may not be employed by
the Government of the United States or the government of the District of Columbia.”).
358 See Law of Mar. 3, 1905, ch. 1484, 33 Stat. 1214, 1257–58 (1905).
359 31 U.S.C. § 1342.
360 Id.
361 Employment of Retired Army Officer As Superintendent of Indian Sch., 30 Op. Att’y Gen. 51, 55 (1913) (“[I]t is
evident that the evil at which Congress was aiming was not appointment or employment for authorized services without
compensation, but the acceptance of unauthorized services not intended or agreed to be gratuitous and therefore likely
to afford a basis for a future claim upon Congress . . . .”).
362 Authority to Decline Compensation for Service on the National Council of the Arts, 13 Op. O.L.C. 113, 114 (1989)
(opining that Professor Laurence Tribe could serve as Special Counsel to Independent Counsel Lawrence Walsh
without compensation because the statute permitting Tribe’s appointment “requires no minimum compensation but
merely states a maximum compensation”).
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Apportionments and Reserves
Finally, before the passage of the Antideficiency Act, coercive deficiencies arose from the rate at
which agencies obligated funds. In the era of frequent coercive deficiencies, Congress would
appropriate funds for the fiscal year, but an agency would then exhaust its appropriations months
before the fiscal year’s end.363
The Antideficiency Act further disciplines agency spending by establishing an apportionment
process. Through a delegation from the President, the Director of OMB is responsible for
apportioning appropriations available to executive agencies.364 “[A]n appropriation available for
obligation for a definite period” must usually be “apportioned to prevent obligation or
expenditure at a rate” that would place an agency into a deficiency.365 In other words, OMB must
phase an agency’s obligations or expenditures to avoid leaving the agency without available
appropriations before the end of the fiscal year.366 The Act makes limited exceptions to this usual
rule. OMB may apportion an agency’s appropriations at a rate that would indicate the need for a
deficiency appropriation to accommodate pay increases for civil employees or military
personnel.367 OMB may also apportion an agency’s appropriations at a rate that would indicate
the need for a deficiency appropriation when required by a law enacted after the agency
submitted its budget request to Congress368 or in “an emergency involving the safety of human
life, the protection of property, or the immediate welfare of individuals” where necessary to
support payments to individuals that are fixed by law.369
Apportionments must be “in writing”370 before appropriations are obligated or expended.371 OMB
may apportion appropriations by time period (i.e., by “months, calendar quarters, operating
seasons, or other time periods”), by function (i.e., by “activities, functions, projects, or objects”),
or by a combination of the two.372 After OMB makes its apportionment, the agency receiving the

363 See supra note 340 and text.
364 See 31 U.S.C. § 1513(b) (tasking the President with “apportion[ing] in writing an appropriation available to an
executive agency (except the Commission) that is required to be apportioned”); see also 3 U.S.C. § 301 (permitting
delegation of “any function which is vested in the President by law” to an agency head or an official “who is required
to be appointed by and with the advice and consent of the Senate”); Exec. Order No. 6,166, at § 16 (1933), as amended
by Exec. Order No. 12,066, 52 FED REG. 34,617, 34,617 at § 2 (1987) (“The functions of making, waiving, and
modifying apportionments of appropriations are transferred to the Director of the Office of Management and Budget.”).
Officials in the legislative and judicial branches apportion appropriations for their respective branches. See 31 U.S.C.
§ 1513(a).
365 31 U.S.C. § 1512(a). An appropriation provided for an indefinite period must be apportioned to make the most
effective and economical use of the appropriation. See id. The same requirement applies to authority to incur
obligations by contract in advance of appropriations. See id.
366 See id.
367 Id. § 1515(a).
368 Id. § 1515(b)(1)(A).
369 Id. § 1515(b)(1)(B). If an official makes an apportionment that indicates the need for a deficiency appropriation,
statute requires the official to immediately report the apportionment to Congress, a report that “shall be referred to in
submitting a proposed deficiency or supplemental appropriation.” Id. § 1515(b)(2).
370 Id. § 1513(a)–(b).
371 See Letter to Gloria Joseph, Director, Office of Administration, National Labor Relations Board, B-253164, B-
253164, at 2 (Comp. Gen. Aug. 23, 1993), https://www.gao.gov/assets/670/664216.pdf (concluding an agency violated
the Antideficiency Act when it obligated funds beyond an existing apportionment before receiving OMB’s
reapportionment in writing, even though OMB orally confirmed the reapportionment before funds were obligated and
provided a written reapportionment soon after).
372 31 U.S.C. § 1512(b).
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appropriation may then further subdivide the apportionment, so long as its subdivisions stay
within the limits of OMB’s apportionment.373 Once this process of apportionment and
administrative subdivision is complete, the resulting schedule constrains an agency’s authority to
obligate funds: an agency “may not make or authorize an expenditure or obligation exceeding an
apportionment” or any administrative subdivision.374
Generally, OMB must apportion all executive branch appropriations.375 However, OMB may
establish a reserve by withholding a portion of appropriated funds from apportionment and thus
from obligation.376 OMB may create reserves “to provide for contingencies,” “to achieve savings
made possible by or through changes in requirements or greater efficiency of operations,” or “as
“specifically provided by law.”377 To ensure that OMB does not misuse this reserve authority, the
Impoundment Control Act—which is detailed below—requires the President to report to
Congress whenever a reserve is created.378

Key Takeaways: Apportionments and Reserves Under the Antideficiency Act

Appropriations must generally be apportioned.

OMB apportions an executive branch appropriation that is available for a definite period by dividing the
appropriation by time period or function; an agency may further subdivide OMB’s apportionment.

An agency’s obligations or expenditures cannot exceed an amount available in the relevant apportionment.

OMB may reserve (i.e., withhold) appropriations from apportionment to provide for contingencies, achieve
savings, or when specifically provided by law.
Antideficiency Act Penalties
An agency may violate the Antideficiency Act in several ways, from obligating funds in violation
of an appropriations act cap or condition,379 to accepting voluntary services beyond that
authorized by law,380 to obligating funds exceeding an apportionment or its administrative
subdivision.381 When an agency violates the Antideficiency Act, further requirements trigger.
First, “the head of the agency” “shall report immediately to the President and Congress all
relevant facts and a statement of actions taken.”382 The head of agency must send a copy of this
report to GAO.383 Second, the Act authorizes sanctions for the officer or employee responsible for

373 Id. § 1513(d).
374 Id. § 1517(a).
375 See id. § 1511(a) & (b) (defining the “appropriations” covered by the apportionment requirement); id. § 1512(a)
(requiring apportionment of all covered appropriations); id. § 1516 (identifying funds that may be exempted from
apportionment).
376 See GAO GLOSSARY, supra note 19, at 25 (“budgetary reserves”).
377 31 U.S.C. § 1512(c)(1).
378 Id. § 1512(c)(2).
379 Id. § 1341(a).
380 Id. § 1342.
381 Id. § 1517(a).
382 Id. § 1351 (imposing reporting requirement for violations of 31 U.S.C. §§ 1341 & 1342); see also id. § 1517(b)
(imposing reporting requirement for obligations exceeding amounts available in an apportionments or its administrative
subdivision).
383 Id. §§ 1351 & § 1517(b).
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the violation. In the early 1900s, Congress found such consequences “imperatively necessary”
because even though the Act’s central prohibition had existed since 1870,384 the “vicious and
unlawful practice of exceeding appropriations by various departments [was] growing very
rapidly.”385 In its current form, the Act provides that “an officer or employee of the United States
Government . . . violating” the Act “shall be subject to appropriate administrative discipline
including, when circumstances warrant,” suspension without pay or removal from office.386
Knowing and willful violations of the Act may earn the responsible employee a fine of not more
than $5,000, up to two years’ imprisonment, or both.387 OMB requires agencies to report to DOJ
any Antideficiency Act violation that it “suspect[s]” were knowing and willful,388 and an agency
has referred at least two such cases to DOJ for further review.389
Though the Act’s administrative discipline and penalty provisions have existed for more than a
century, agencies rarely employ the more severe methods of discipline referred to in the statute.
Writing in 2001, DOJ stated that “no criminal or civil penalties have been sought under the Act in
the almost 95 years that such penalties have been available.”390 Thus, the Act’s criminal
provisions have apparently never formed the basis for a criminal prosecution.391 DOJ has even
signaled that it would be reluctant to bring such a prosecution, given “very difficult
considerations, such as fair warning and desuetude,” that DOJ asserts such a prosecution would
pose.392 DOJ has prosecuted individuals who misuse federal funds or property under other
statutes.393

384 Law of July 12, 1870, ch. 251, § 7, 16 Stat. 230, 251 (1870).
385 S. REP. NO. 58-4134 (justifying legislation containing similar language to that added to the Act in March 1905).
386 31 U.S.C. § 1349(a) (authorizing administrative discipline for violations of 31 U.S.C. §§ 1341 & 1342); see also id.
§ 1518 (authorizing administrative discipline for obligations exceeding amounts available in an apportionments or its
administrative subdivision).
387 Id. § 1350 (specifying criminal penalties for violations of 31 U.S.C. §§ 1341 & 1342); see also id. § 1519
(specifying criminal penalties for obligations exceeding amounts available in an apportionments or its administrative
subdivision).
388 CIRCULAR NO. A-11, supra note 290, at § 145.7.
389 See Letter to the Honorable Gene Dodaro, Comptroller General of the United States, Government Accountability
Office, from the Honorable Robert Adler, Acting Chairman, Consumer Product Safety Commission (June 5, 2014)
(employee who worked during a lapse in appropriations the day after signing a furlough notice directing the employee
not to work) (noting that DOJ declined prosecution); Letter to the Honorable Gene Dodaro, Comptroller General of the
United States, Government Accountability Office, from the Honorable Rebecca Blank, Acting Secretary, Department
of Commerce (Nov. 21, 2012) (use of accounting mechanism to “move expenses” from one program, project, or
activity to another).
390 Applicability of the Antideficiency Act to a Violation of a Condition or Internal Cap Within an Appropriation, 25
Op. O.L.C. 33, 54 n.22 (2001). It is unclear what DOJ means when it refers to “civil penalties,” as the Act authorizes
only “administrative discipline” and criminal penalties. See, e.g., 31 U.S.C. §§ 1349 & 1350.
391 Since 2005, GAO has annually compiled for Congress the information in that fiscal year’s Antideficiency Act
reports. None of these reports refers to an employee being prosecuted under the Antideficiency Act.
392 Applicability of the Antideficiency Act to a Violation of a Condition or Internal Cap Within an Appropriation, 25
Op. O.L.C. at 54 n.22. The Due Process Clause of the Fifth Amendment “prohibits application of a criminal statute to a
defendant unless it was reasonably clear at the time of the alleged action that defendants’ actions were criminal.”
United States v. Kanchanalak, 192 F.3d 1037, 1046 (D.C. Cir. 1999). Desuetude is a legal theory under which a court
may find a criminal statute unenforceable where there is a long history of non-enforcement coupled with routine,
readily apparent violations of the statute. “West Virginia alone recognizes [the theory] as a valid defense” to a criminal
prosecution, Notes, Desuetude, 119 HARV. L. REV. 2209, 2211 (2005), so it is unclear why DOJ has suggested that this
theory would impede an Antideficiency Act prosecution.
393 These money- and property-related offenses appear in Chapter 31 of Title 18 of the United States Code. DOJ’s
prosecutions under Chapter 31 usually involve a defendant who personally benefited from misuse of federal funds.
E.g., Satterfield v. United States, 249 F.2d 608, 609 (6th Cir. 1957) (affirming embezzlement conviction of IRS official
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Administrative discipline in the form of suspension or removal from office also appears rare.
Officers or employees responsible for Act violations may have retired or resigned from federal
employment before an agency considers the violation.394 When an agency imposes discipline, the
agency usually uses milder forms, such as a letter of censure, oral reprimand, or counseling. At
times, agencies will identify an Antideficiency Act violation but decline to impose administrative
discipline of any kind. Usually, though, agencies will respond to violations by committing to
reform agency practices to lessen the chance of further violations occurring.395

Key Takeaways: Antideficiency Act Penalties

An officer or employee who violates the Antideficiency Act is subject to appropriate administrative discipline,
up to termination.

An officer or employee who knowingly and willfully violates the Act is subject to a fine, imprisonment, or
both.

In practice, agencies tailor administrative discipline (if any) to the facts of each violation. No violation or
suspected violation of the Act appears to have led to a criminal prosecution under the Act.
The Impoundment Control Act
The key statutory provisions discussed so far constrain the executive branch’s ability to dispose
of federal funds. The MRA prevents agencies from augmenting their appropriations with funds
received from other sources; the Purpose Statute limits the ends to which an appropriation may be
applied; transfer and reprogramming provisions limit an agency’s discretion to manage
appropriated funds; and the Antideficiency Act prevents an agency from obligating funds when
none are available for a given purpose. Each constraint ensures that the executive branch does not
use budget authority in ways that conflict with the policy choices embodied in statute.
But the executive branch can just as easily frustrate congressional purpose by declining to
obligate appropriations. This process of “action or inaction by an officer or employee of the
federal government that precludes obligation or expenditure of budget authority” is called
impoundment.396 The last of Congress’s key fiscal control statutes detailed in this report, the
Impoundment Control Act of 1974 (ICA) addresses and controls this executive branch practice.

who had “wrongfully converted . . . to his own use” money that came into his possession in the course of his
employment). In a typical Antideficiency Act violation, though, such personal gain is lacking. See, e.g., Letter to the
Honorable Gene Dodaro, Comptroller General of the United States, Government Accountability Office, from the
Honorable Robert Wilkie, Secretary, Department of Veterans Affairs (Sept. 10, 2018) (reporting Department of
Veterans Affairs Antideficiency Act violation resulting from improper obligation of FY2015 appropriations for
expenses that should have been recorded as obligations in later fiscal years).
394 E.g., Letter to the Honorable Gene Dodaro, Comptroller General of the United States, Government Accountability
Office, from the Honorable Janet Napolitano, Secretary, Department of Homeland Security, at 1–2 (Aug. 21, 2013)
(explaining that U.S. Coast Guard (USCG) took no disciplinary action against the person deemed responsible for
USCG leasing more personal vehicles than its appropriation allowed because that person had retired).
395 E.g., Letter to the Honorable Gene Dodaro, Comptroller General of the United States, Government Accountability
Office, from the Honorable Lee J. Lofthus, Assistant Attorney General for Administration, Department of Justice, at 3
(Dec. 13, 2018) (explaining that in response to Antideficiency Act violations that arose when DOJ obligated funds in
violation of report-and-wait provisions DOJ had revised internal policies relating to congressional reporting).
396 GAO GLOSSARY, supra note 19, at 61.
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Background
Unlike the other executive branch practices discussed above, through much of U.S. history
impoundment of any type appears to have been relatively rare. There are early examples of a
President’s failure to obligate appropriated funds. Following the October 1802 decision of the
Spanish intendant in New Orleans to bar the right of Americans to deposit goods in the city’s port
at a time when the city was still under Spanish control,397 Congress appropriated $50,000 for the
purchase of up to 15 gunboats.398 In October 1803, after negotiating the Louisiana Purchase,
President Thomas Jefferson advised Congress that gunboat funds “remain[ed] unexpended”
because the “favorable and peaceful turn of affairs on the Mississippi rendered an immediate
execution of that law unnecessary.”399 Actual or threatened use of impoundment was mostly
absent during the 19th and early 20th centuries.400 Congress’s complaint in this period was
usually that the executive branch spent too much and for the wrong purposes, not that it was
failing to obligate or expend budget authority.401 The executive branch justified actual or
proposed impoundments as savings measures that still accomplished Congress’s objective for the
affected program,402 and in 1950 Congress provided statutory authority to effect such savings by
adding provisions to the Antideficiency Act allowing the President to create reserves in order to
effect savings.403 The executive branch seldom asserted that the President had broad authority to
withhold budget authority from obligation or expenditure. Units of the executive branch even
expressed doubt that such authority existed.404
Following the outbreak of World War II, though, impoundment became more common and
attracted new justifications.405 Presidents continued to assert that federal statutes authorized

397 Sally K. & William D. Reeves, Two Hundred Years of Maritime New Orleans: An Overview, 35 TUL. MAR. L.J.
183, 186 (2010).
398 Law of February 28, 1803, ch. xi, § 3, 7 Stat. 206, 206 (1803).
399 10 THE WORKS OF THOMAS JEFFERSON IN TWELVE VOLUMES 41 (Paul L. Ford ed. 1905) (Third Annual Message to
Congress).
400 See, e.g., Louis Fisher, Impoundment of Funds: Uses and Abuses, 23 BUFF. L. REV. 141, 165 (1973) (noting an
impoundment threat from President Harding in 1923 that was not carried out likely because of the President’s death
months later); Letter to the Honorable Sam J. Ervin, Jr., Chairman, Subcomm. on Separation of Powers of the S.
Comm. on the Judiciary, from Elmer B. Staats, Comptroller General of the United States, Government Accountability
Office, B-135564 (July 26, 1973) (stating that the Nixon Administration claims of extensive historical precedent for
presidential impoundments “relie[d] primarily upon impoundments occurring” after 1941); but see FEDERAL
IMPOUNDMENT CONTROL PROCEDURE ACT, REPORT OF THE S. COMM. ON GOV’T OPS., S. REP. 93-121, at 10–11 (1973)
(reciting OMB claim that “it seems likely that most if not all Presidents have impounded funds for any number of
reasons” but noting that OMB did “not keep records” of all such impoundments).
401 See supra notes 243–247 and 339–342 and text.
402 See 1971 Impoundment Hearings, supra note 53, at 174, 177 (testimony of J. Cooper, Professor, Department of
Political Science, Rice University) (noting that early impoundments “either had substantial congressional support or did
not arouse any substantial congressional opposition”).
403 See General Appropriations Act of 1950, ch. 896, § 1211, 64 Stat. 595, 765 (1950) (amending the Antideficiency
Act to allow for the creation of reserves to realize savings through changed program requirements or administrative
efficiency).
404 Presidential Authority to Direct Departments and Agencies to Withhold Expenditures from Appropriations Made, 1
Op. O.L.C. Supp. 12, 16 (1937) (“Further doubt regarding the existence of the power to make . . . an order . . .
withholding expenditures from appropriations made . . . arises from the fact that the power would in effect enable the
President to overcome the well-settled rule that he may not veto items in appropriation bills.”).
405 See generally Louis Fisher, The Politics of Impounded Funds, 15 ADMIN. SCI. QUARTERLY 361 (1970).
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particular impoundments,406 though some doubted these claims.407 Perhaps more concerning to
Congress, Presidents impounded budget authority based on policy disagreements with Congress’s
objective in providing budget authority.408 In 1971, for example, President Nixon impounded
$350 million appropriated for categorical grant programs, based on a policy preference for
revenue sharing, which he believed represented “a much more effective way of helping local
governments provide for local needs” than the more restrictive categorical grants.409 By 1973, the
Nixon Administration was withholding between $12 billion and $18 billion in budget authority
from obligation.410
Against this backdrop, Congress enacted the ICA in 1974.411 According to GAO, the ICA
“operates on the premise that when Congress appropriates money to the executive branch, the
President is required to obligate the funds.”412 However, the ICA also provides “mechanism[s]”
by which the executive branch may deviate from this requirement.413 The ICA establishes two
processes for Congress to learn of, and then weigh in on, executive branch impoundment of

406 1971 Impoundment Hearings, supra note 53, at 156 (testimony of C. Weinberger, Deputy Director, Office of
Management and Budget) (asserting that the Employment Act of 1946, coupled with the need to control inflation,
“does seem to be a very sound basis for some of the fiscal decisions that” President Nixon made to impound
appropriated funds); id. at 160 (similarly asserting that the President’s need to comply with “outlay ceilings” and “debt
limitations” permitted impoundments).
407 E.g., id. at 153 (Arthur S. Miller, Professor Emeritus, George Washington University School of Law) (arguing that it
is “beyond belief” that President Nixon would rely on “rather ambiguous statutes” such as the Employment Act of 1946
to justify impoundment).
408 Compare supra note 404 (opinion of Attorney General Homer Cummings expressing, in 1937, doubt concerning a
broad presidential power to impound appropriated funds), with Fed.-Aid Highway Act of 1956-Power of President to
Impound Funds, 42 Op. Att’y Gen. 347, 351 (1967) (“An appropriation act . . . places an upper and not a lower limit on
expenditures. The duty of the President to see that the laws are faithfully executed, under Article II, section 3 of the
Constitution, does not require that funds made available must be fully expended.”).
409 See Letter to Rep. Clement J. Zablocki, U.S. House of Representatives, from Caspar W. Weinberger, Deputy
Director, Office of Management and Budget (Mar. 9, 1971), reprinted in 1971 Impoundment Hearings, supra note 53,
at 310.
410 See REP. JOE L. EVINS, CHAIRMAN EVINS RELEASES PARTIAL LISTING OF IMPOUNDMENT BY OFFICE OF MANAGEMENT
AND BUDGET OF FUNDS APPROPRIATED BY CONGRESS (Jan. 15, 1973), reprinted in 1973 Impoundment Hearings, supra
note 145, at 563–66 ($12 billion); CHAFETZ, supra note 70, at 64 ($18 billion).
411 The Supreme Court has not applied the ICA to agency delay in making budget authority available for obligation or
expenditure. A search of LexisNexis’s Supreme Court opinions database reveals only two instances in which the Court
mentioned the Impoundment Control Act by name. But the Court did not apply the ICA in either case. In Train v. City
of New York, the Court considered whether, under the Federal Water Pollution Control Act Amendments (FWCPA) of
1972, the President could decline to allot to states the full amount of sums appropriated as financial assistance for
municipal sewers and sewage treatment works. 420 U.S. 35, 38-40 (1975). Congress enacted the ICA during the
pendency of the litigation, but the Court noted that “[o]ther than as they bear on the possible mootness in the litigation
before us, no issues as to the reach or coverage of the Impoundment Act are before us.” Id. at 45 n.10. The Court
decided that the case was not moot and that the FWCPA required the President to allot the full amount of funds
appropriated for the program at issue. Id. at 44. In other words, Train holds only that the particular pollution control
statute in that case made allotments mandatory. In I.N.S. v. Chadha, in the course of arguing that one-house legislative
vetoes of the type invalidated by the majority were commonplace, a dissenting justice noted that the ICA then included
a one-house legislative veto. See 462 U.S. 919, 970-71 (1983) (White, J., dissenting). But Chadha did not involve any
question regarding the impoundment of budget authority.
412 Matter of Impoundment of the Advanced Research Projects Agency-Energy Appropriation, 2017 U.S. Comp. Gen.
LEXIS 360, at *3 (Comp. Gen. Dec. 12, 2017).
413 Decision of General Socolar, 1981 U.S. Comp. LEXIS 2200, at *11 (Comp. Gen. Sept. 15, 1981).
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budget authority.414 “There are two types of impoundments: deferrals and proposed
rescissions,”415 and the ICA establishes separate processes for both.
Rescissions
First, the ICA requires the President to report to Congress, using a special message, whenever the
President proposes to rescind budget authority.416 A rescission cancels budget authority, making
the budget authority no longer available for obligation or expenditure.417 The ICA’s rescission
provision gives “the President the opportunity to initiate reconsideration of, and Congress the
opportunity to reconsider, the expenditure of program funds under circumstances that may be
different from those in existence when the original program was enacted.”418
The President may propose a rescission, either when “all or part of any budget authority will not
be required to carry out the full objectives or scope” of the programs for which Congress
provided the budget authority, or when there are “fiscal policy or other reasons” supporting a
rescission.419 The President may also propose to “reserve[] from obligation,” for the rest of the
fiscal year, budget authority “provided for only one fiscal year.”420
In either case, the President must transmit a special message to Congress justifying
cancellation.421 The special message must describe and justify the proposed rescission or
reserve.422 A special message describing a proposed rescission triggers a 45-legislative-day clock,
during which the agency may withhold the affected budget authority from obligation.423 Given
Congress’s modern practice of holding pro forma sessions, the ICA’s 45-legislative-day-hold
provision usually equates to 45 calendar days.424 If Congress does not rescind funds within this

414 Importantly, the ICA does not “supersed[e] any provision of law which requires the obligation of budget authority
or the making of outlays thereunder.” 2 U.S.C. § 681(4). When statute requires the executive branch to obligate budget
authority, an agency may not rely on the ICA to delay the obligation. See Maine v. Goldschmidt, 494 F. Supp. 93, 99
(D. Me. 1980) (holding that the ICA “cannot provide an independent statutory basis for the deferral” for a program
interpreted to mandate the allocation of highway funding to states).
415 GAO GLOSSARY, supra note 19, at 61. Under the ICA, these categories are exclusive. To withhold budget authority
from obligation, the President must transmit to Congress a special message proposing either a rescission or a deferral.
See NASA—Constellation Program & Appropriations Restrictions, Part II, 2010 U.S. Comp. Gen. LEXIS 149, at *8
(Comp. Gen. July 23, 2010).
416 2 U.S.C. § 683(a).
417 GAO GLOSSARY, supra note 19, at 85.
418 Appropriations—Impounding—General Accounting Office Interpretation of Impoundment Control Act of 1974, B-
115398, 54 Comp. Gen. 453, 464 (1974).
419 2 U.S.C. § 683(a).
420 Id. (explaining, in relevant part, that “whenever all or part of budget authority provided for only one fiscal year is to
be reserved from obligation for such fiscal year . . . the President shall transmit to both Houses of Congress a special
message”). “At midnight on the last day of an appropriation’s period of availability, the appropriation account expires
and is no longer available for incurring new obligations.” 1 GAO REDBOOK, supra note 30, at ch. 5, p. 1-37 (3d ed.,
2004), https://www.gao.gov/assets/210/202437.pdf (stating that “an appropriation ‘dies’ in a sense at the end of its
period of obligational availability”).
421 See 2 U.S.C. § 683(a).
422 Id. (requiring that a special message include, among other things, “the reasons why the budget authority should be
rescinded or is to be so reserved”).
423 Id. § 683(b) (“Any amount of budget authority proposed to be rescinded or that is to be reserved as set forth in such
special message shall be made available for obligation unless, within the prescribed 45-day period, the Congress has
completed action on a rescission bill rescinding all or part of the amount proposed to be rescinded or that is to be
reserved.”).
424 See Impoundment Control Act—Withholding of Funds through Their Date of Expiration, B-330330, 2018 U.S.
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period, the affected funds “shall be made available for obligation.”425 “Funds made available for
obligation” after the expiration of the 45-legislative-day hold period “may not be proposed for
rescission again,”426 meaning the President may not transmit successive special messages asking
for rescission of the same budget authority to create multiple 45-day hold periods.427
This 45-legislative-day hold period raises the prospect of so-called “pocket rescissions.” To
illustrate this practice, suppose that on September 1 of a fiscal year the President transmits to
Congress a special message proposing the rescission of budget authority whose period of
availability ends with the fiscal year. A fiscal year ends September 30.428 The special message
submitted on September 1 would permit the President to withhold budget authority for 45
legislative days.429 If the ICA were to allow the hold to continue for the entire 45-day period, the
affected budget authority’s period of availability would end on September 30, while the hold
period would continue. As a result, the agency could not make the funds available for obligation,
even if Congress later did not enact a rescission resolution.
GAO has reasoned that because the Constitution states that the President “shall take Care that the
Laws be faithfully executed,”430 the President must make budget authority that Congress fails to
rescind “available in sufficient time to be prudently obligated.”431 This requirement applies,
according to GAO, “[r]egardless of whether the 45-day period for congressional consideration
provided in the ICA approaches or spans the date on which funds would expire.”432 GAO reads
the Act to prohibit pocket rescissions.433 OMB disagrees, noting that the text of the ICA does not
bar an agency from withholding budget authority from obligation during the 45-day hold period
where the hold period spans fiscal years. In OMB’s view, Congress knows how to prohibit fiscal-
year-spanning holds, as the ICA contains a similar provision for deferrals.434 According to OMB,

Comp. Gen. LEXIS 395, at *6 n.1 (Comp. Gen. Dec. 10, 2018) (“As a result of Congress’s current practice of
conducting pro forma sessions, this 45-day period is likely to be 45 calendar days after the date of transmission of the
special message.”).
425 2 U.S.C. § 683(b).
426 Id.
427 H.R.CON.REP. NO. 100-313, at 68 (1987), reprinted in 1 H. COMM. ON THE BUDGET, THE BALANCED BUDGET AND
EMERGENCY DEFICIT CONTROL REAFFIRMATION ACT OF 1987: A LEGISLATIVE HISTORY, 453–54 (1993) (“The conferees
intend that the president be allowed to propose one rescission for any given activity.”) (conference report discussing
amendment to ICA included in the Balanced Budget and Emergency Deficit Control Reaffirmation Act).
428 31 U.S.C. § 1102.
429 See supra note 423 and text.
430 U.S. CONST. art. II, § 2.
431 Impoundment Control Act—Withholding of Funds through Their Date of Expiration, 2018 U.S. Comp. Gen. LEXIS
395, at *14 (Comp. Gen. Dec. 10, 2018).
432 Id.
433 Id. at *31–32 (“amounts proposed for rescission must be made available for prudent obligation before the amounts
expire, even where the 45-day period for congressional consideration in the ICA approaches or spans the date on which
the funds would expire”). In so holding, GAO recognized that its prior rulings had “intimated” the contrary conclusion,
that the ICA permitted pocket rescissions. See id. at *25–30 (explaining that such prior GAO opinions rested on the
premise that Congress could reject pocket rescissions via a one-house legislative veto later deemed unconstitutional).
For example, in 1975, GAO stated the prospect of pocket rescissions was “a major deficiency” of the ICA. Letter to the
Speaker of the House of Representatives and President of the Senate, from Elmer B. Stats, Comptroller General of the
United States, B-115398, at *2 (Comp. Gen. Dec. 15, 1975) (noting that certain funding for community development
activities that was the subject of a special message under the ICA had lapsed before the end of the 45-legislative-day
hold period).
434 Letter to Thomas Armstrong, General Counsel, Government Accountability Office, from Mark R. Paoletta, General
Counsel, Office of Management and Budget, at 1 (Nov. 14, 2018) (noting that the ICA’s deferral provision states that a
deferral “‘may not be proposed for any period of time beyond the end of the fiscal year in which the special message is
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because the ICA’s text does not expressly prohibit fiscal-year-spanning holds that result from
proposed rescissions, the President may “propose and withhold funds at any time in a fiscal
year.”435 As with many of the positions staked out by the executive branch regarding its discretion
over budget authority, OMB’s reading of the statute is, in practice, not applied to its fullest extent.
Aware of Congress’s distaste for the potential of a pocket rescission, at least some agencies
appear reluctant to time a rescission proposal in a way that would permit a pocket rescission.436
Aside from the ICA’s rescission provisions, through guidance documents, OMB has described
another means for the President to request that Congress cancel budget authority. OMB defines a
cancellation proposal as “a proposal by the President to reduce budgetary resources . . . that is not
subject to the requirements” of the ICA.437 In effect, both a special message describing a proposed
rescission and a cancellation proposal make the same request of Congress: that it enact legislation
canceling budget authority. A crucial distinction, though, is that while an agency may temporarily
withhold from obligation budget authority that is the subject of a special message,438 budget
authority that is the subject of a cancellation proposal only must remain available for
obligation.439 A cancellation proposal is not a statutory tool created by the ICA. Rather, a
cancellation proposal is merely a call for legislative action that, when made, has no effect on the
availability of budget authority—at least not until Congress enacts a law cancelling the budget
authority. When an agency withholds budget authority described in a cancellation proposal from
obligation, and the President has not also transmitted a special message to Congress justifying the
agency’s action as stemming from a proposed rescission or deferral, the agency violates the
ICA.440

transmitted’” but that the ICA’s rescission provision lacks any reference to the timing of proposed rescissions) (quoting
2 U.S.C. § 684(a)).
435 Id. at 4.
436 See, e.g., 3 DEP’T OF DEFENSE, FINANCIAL MANAGEMENT REGULATION 2-9, at 020601(C) (“[A] rescission will be
proposed prior to the beginning of the fourth fiscal quarter. Only in exceptional cases will rescissions be proposed
during the fourth quarter.”).
437 CIRCULAR NO. A-11, supra note 290, at § 20.3.
438 See 2 U.S.C. § 683(b).
439 See Status of Funds Proposed for Cancellation in the President’s Fiscal Year 2007 Budget, 2006 U.S. Comp. Gen.
LEXIS 137, at *9–10 (Comp. Gen. Aug. 4, 2006) (“We caution that should the President choose to propose
cancellations through means other than a special message under the ICA, affected agencies should be cognizant of the
differences between such proposals and a special message under the ICA, and that they may not withhold budget
authority from obligation in response to any proposal other than a special message under the ICA.”); see also CIRCULAR
NO. A-11, supra note 290, at § 112.2 (stressing that amounts proposed for cancellation only may not be withheld and
are subject to normal apportionment requirements).
440 See, e.g., Impoundment of the Advanced Research Projects Agency-Energy Appropriation Resulting from
Legislative Proposals in the President’s Budget Request for Fiscal Year 2018, B-329092, 2017 U.S. Comp. Gen.
LEXIS 360, at *11 (Comp. Gen. Dec. 12, 2017) (finding an ICA violation at the Department of Energy when the
agency withheld budget authority described in a cancellation proposal); Impoundments Resulting from the President’s
Proposed Rescissions of October 28, 2005, B-307122, 2006 U.S. Comp. Gen. LEXIS 45, at *2–4 (Comp. Gen. Mar. 2,
2006) (describing ICA violations at 12 agencies, even though OMB had “specifically instructed [agencies] not to
withhold funds in anticipation of an impending rescission” following the President’s submission of a cancellation
proposal).
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Key Takeaways: Rescissions Under the ICA

The President may propose a rescission by asking Congress to cancel budget authority that is no longer
needed.

The President must report all proposed rescissions to Congress using a special message.

Budget authority that is proposed for rescission may be withheld from obligation for 45 legislative days after
the President submits the proposal to Congress.
Deferrals
Second, the ICA requires the President to report to Congress, again using a special message,
whenever the President, the OMB Director, or a department or agency head or employee proposes
to defer budget authority.441 As with a proposed rescission, a deferral special message must justify
the deferral.442 A deferral results from executive action or inaction that withholds or delays the
obligation or expenditure of budget authority, whether by “establishing reserves or otherwise.”443
The President or others may defer budget authority (1) “to provide for contingencies,” (2) “to
achieve savings made possible by or through changes in requirements or greater efficiency of
operations,” or (3) “as specifically provided by law.”444 These are the same conditions under
which OMB may create a reserve under the Antideficiency Act.445 Under the ICA, “No officer or
employee of the United States may defer any budget authority for any other purpose.”446
Given the ICA’s structure—a list of permissible deferrals, coupled with a catch-all restriction on
deferrals for “any other purpose”447—the ICA does not authorize the President to defer budget
authority for general policy reasons.448 In fact, in enacting the ICA, Congress also repealed an
open-ended provision of the Antideficiency Act that allowed the President to reserve funds based
on “other developments subsequent to the date on which [a reserved] appropriation became
available.”449 As the U.S. Court of Appeals for the D.C. Circuit (D.C. Circuit) explained in New
Haven v. United States, this amendment “sought to remove any colorable statutory basis for

441 2 U.S.C. § 684(a).
442 Id. (explaining that a special message must describe the proposed deferral and “the reasons for the proposed
deferral, including any legal authority invoked to justify the proposed deferral”).
443 Id. § 682(1); see also Matter of Impoundment of the Advanced Research Projects Agency-Energy Appropriation,
2017 U.S. Comp. Gen. LEXIS 360, at *9–10 (Comp. Gen. Dec. 12, 2017) (finding an impoundment of budget authority
that had been “full apportioned” by OMB); Impoundment Control: Deferrals of Budget Authority in GSA, B-255338.2,
at *4 (Comp. Gen. Nov. 5, 1993 (noting that the simply because an agency does not create a reserve does not mean that
budget authority is not being deferred) (GSA memorandum directing assistant regional administrators to review new
public buildings and, in the meantime, not take specified contracting actions held to be a deferral); Impoundment
Control: Comments on Unreported Impoundment of DOD Budget Authority, B-246096.10, at *4 (Comp. Gen. June 3,
1992) (noting that statements of the Secretary of Defense, together with other facts, demonstrated a “clear indication on
his part not to execute” the V-22 program).
444 Id. § 684(b).
445 31 U.S.C. § 1512(c)(1).
446 2 U.S.C. § 684(b).
447 Id.
448 See Letter to Thomas Armstrong, General Counsel, Government Accountability Office, from Mark R. Paoletta,
General Counsel, Office of Management and Budget, at 6 (Dec. 11, 2019) (noting that absent constitutional concerns
“under the ICA the President may not defer funds simply because he disagrees with the policy underlying a statute”).
449 Compare 31 U.S.C. § 655 (1970) (containing former other-developments reserve authority), with Congressional
Budget and Impoundment Control Act of 1974, Pub. L. No. 93-344, § 1002, 88 Stat. 297, 332 (1974) (revising 31
U.S.C. § 655 to eliminate other-developments reserve authority).
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unchecked policy deferrals.”450 The President must report any reserve of budget authority as a
deferral, except for a proposal to reserve one-year funds for the rest of the fiscal year, which, as
noted above, the ICA treats alongside proposed rescissions.451 “Absent the transmittal of a special
message, it is improper for an agency to withhold budget authority.”452 As noted above, the
President may not propose a deferral for a period extending beyond the end of the current fiscal
year.453
In applying the ICA to delays in obligating budget authority, it is important to distinguish between
a deferral—which is subject to the ICA’s reporting requirement—and programmatic delay—
which, according to GAO, the ICA does not govern.454 GAO draws this line by examining the
“reason for the delay in obligating” budget authority.455 Generally, if budget authority is not now
available for obligation because the agency is getting ready to obligate, the delay is
programmatic.456 The agency intends to carry out Congress’s directive to obligate funds, so
temporary delay does not raise the same concerns that prompted the ICA’s adoption.457 When an
agency justifies delay in making budget authority available by pointing to factors that are not
necessary steps in program execution, though, the delay is not programmatic. The delay is a
deferral.458 This assessment necessarily depends on the facts of a given case, but, generally, GAO
has found a deferral, and not programmatic delay, when an agency cannot justify delay by
pointing to factors outside its control that slow program execution.459

450 809 F.2d 900, 909 (D.C. Cir. 1987).
451 2 U.S.C. § 684(a).
452 U.S. Department of Homeland Security—Impoundment Control Act and Appropriations for the Tenth National
Security Cutter, B-329739, 2018 U.S. Comp. Gen. LEXIS 414, at *9 (Comp. Gen. Dec. 19, 2018).
453 2 U.S.C. § 684(a).
454 See Obligation of Funds Appropriated for “International Organizations and Programs,” B-290659, 2002 WL
1799692, at *3 (Comp. Gen. July 24, 2002) (“Our decisions distinguish between programmatic withholdings outside of
the reach of the Impoundment Control Act and withholdings of budget authority that qualify as impoundments subject
to the Act’s requirements.”).
455 Decision of Socolar, B-207374, 1982 U.S. Comp. Gen. LEXIS 1641, at *6 (Comp. Gen. July 20, 1982) (noting that
“delay alone” is not proof of a deferral).
456 See, e.g., Budget Issues: Reprogramming of Federal Air Marshall Service Funds in Fiscal Year 2003, GAO-04-
577R, at 8–9 (Comp. Gen. Mar. 31, 2004) (delay caused by conferring with congressional committees on proposed
reprogramming of funds found programmatic delay); Funding for Technical Assistance for Conservation Programs
Enumerated in Section 2701 of the 2002 Farm Bill, B-291241, 2002 Comp. Gen. LEXIS 274, at *27 (Comp. Gen. Oct.
8, 2002) (interagency deliberations prompted by uncertainty over whether a statutory cap on transfer authority
prevented funds from being transferred from one agency to another considered programmatic delay).
457 See supra notes 405–410 and text.
458 See Reducing Redundant IT Infrastructure Related to Homeland Security, B-291063, at *5 (Comp. Gen. Sept. 19,
2002), https://www.gao.gov/assets/370/366818.pdf (explaining that an OMB memo delaying “IT and business
management funding” to achieve savings fit the definition of a “reportable, but authorized, deferral under the” ICA).
459 See, e.g., Matter of Office of Management and Budget Withholding of Ukraine Security Assistance, B-331564, 2020
WL 241373, at *5 (Comp. Gen. Jan. 20, 2020) (concluding OMB’s delay in making security assistance funding
available was an “impermissible policy deferral” because OMB pointed to its “policy development process” as a reason
for the delay which in that case was not an “external factor causing an unavoidable delay”); U.S. Department of
Homeland Security—Impoundment Control Act and Appropriations for the Tenth National Security Cutter, 2018 U.S.
Comp. Gen. LEXIS 414, at *19 (Comp. Gen. Dec. 19, 2018) (“Under the Constitution, a bill proposing to rescind
budget authority may become a law only after both chambers of Congress pass it in identical form for presentment to
the President.”) (concluding DHS deferred budget authority when it “delayed the obligation of funds while it reviewed
the potential consequences of a proposed lump-sum rescission in an unenacted bill”); Impoundment Control: Deferrals
of Budget Authority in GSA, B-255338.2, at 4 (Comp. Gen. Nov. 5, 1993), https://www.gao.gov/assets/220/218781.pdf
(GSA’s order to halt “all contracting activities program-wide while it assesse[d] . . . projects not yet under
construction” a deferral and not programmatic delay); Report to President of the Senate and the Speaker of the House,
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Key Takeaways: Deferrals Under the ICA

The President, OMB, or a department or agency head or employee may defer budget authority to provide
for contingencies, effect savings, or as specifically provided by law. No officer or employee of the United
States may defer budget authority for any other purpose.

The President must report all deferrals to Congress using a special message.

The ICA requires reporting of deferrals, but the ICA is understood to not require reporting of programmatic
delay, which is delay in making funds available for obligation that results from necessary steps in the process
of program implementation.
Congressional Action and GAO Oversight
Once the President transmits a special message to Congress, or once GAO submits a report to
Congress on a deferral or reserve that should have been the subject of a special message but was
not,460 the ICA provides that Congress may use an expedited procedure for the consideration of a
bill or resolution related to the message.461 The legislative vehicle that Congress uses to respond
under the ICA to the special message differs, depending on whether the special message describes
a rescission or a deferral. Under the ICA, Congress may act on a rescission proposed by the
President through consideration of a rescission bill, and may review deferrals through
consideration of an impoundment resolution. A rescission bill is defined in the ICA as “a bill or
joint resolution which only rescinds, in whole or in part, budget authority proposed to be
rescinded in a special message” passed by both houses of Congress “before the end of the first
period of 45 calendar days of continuous session of the Congress after the date on which the
President’s message is received by the Congress.”462 An impoundment resolution is defined as “a
resolution of the House of Representatives or the Senate which only expresses its disapproval of a
proposed deferral of budget authority.”463
The ICA’s two means for Congress to respond to proposed rescissions and deferrals have
different legal effects. If enacted into law, a rescission bill, which is passed by both houses of
Congress and presented to the President, has the effect of canceling budget authority.464 By

B-241514.2 (Comp. Gen. Feb. 5, 1991) (concluding that a DOD military construction moratorium imposed during the
Gulf War effected a deferral of budget authority); Impoundment Control Act: President’s Third Special Impoundment
Message for FY1990, B-237297.3, at *5–6 (Comp. Gen. March 6, 1990), https://www.gao.gov/assets/220/212244.pdf
(decision to defer certain military spending in the waning days of the Cold War given “promising developments in the
Soviet Union and Eastern Europe”).
460 See 2 U.S.C. § 686 (noting that when the executive branch fails to identify a reserve or deferral in a special message,
GAO’s reports about such reserve or deferral “shall be considered a special message”).
461 See id. § 688 (specifying committee discharge and expedited floor consideration rules for rescission bills and
impoundment resolutions). Congress may also act on its own initiative to rescind budget authority. This has typically
been the case in recent years. See Updated Rescission Statistics, B-330019, 2018 WL 4679596, at *2 (Comp. Gen.
Sept. 27, 2018) (reporting data on proposed and enacted rescissions from 1974 through 2017). When Congress rescinds
budget authority on its own initiative, the ICA’s expedited procedures do not apply. See, e.g., 2 U.S.C. § 682(3)
(defining a “rescission bill” eligible for consideration under the expedited procedure as a bill or joint resolution “which
only rescinds, in whole or in part, budget authority proposed to be rescinded in a special message transmitted by the
President” under the ICA (emphasis added)).
462 Id. § 682(3).
463 Id. § 682(4).
464 See U.S. Department of Homeland Security—Impoundment Control Act and Appropriations for the Tenth National
Security Cutter, B-329739, 2018 U.S. Comp. Gen. LEXIS 414, at *9 (Comp. Gen. Dec. 19, 2018) (“Under the
Constitution, a bill proposing to rescind budget authority may become a law only after both chambers of Congress pass
it in identical form for presentment to the President.”).
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contrast, the ICA does not require both houses of Congress to pass an impoundment resolution.465
An impoundment resolution approved by one house of Congress might persuade the President to
discontinue the deferral that is the subject of the resolution, but the resolution does not have the
force of law needed to compel this result.466 When Congress enacted the ICA in 1974, Congress
attempted to use impoundment resolutions to compel the release of deferred funds. As originally
enacted, the ICA provided that deferred budget authority “shall be made available for obligation
if either House of Congress passes an impoundment resolution disapproving of such proposed
deferral.”467 In 1987, the D.C. Circuit, following the reasoning of the Supreme Court in INS v.
Chadha, ruled this one-house veto provision unconstitutional.468 Later that year, Congress
removed the provision.469 In the process, though, Congress did not substitute another legislative
process for mandating the release of deferred funds,470 and Congress has not amended the ICA
since.
That is not to say that Congress cannot require deferrals to end, though. For example, Congress
could enact legislation disapproving of a deferral, in which case OMB recognizes that the deferral
must end.471 In that instance, though, enactment would require bicameral passage and
presentment to the President.472 Similarly, Congress likely could pass legislation requiring the
obligation of budget authority that is being deferred.473 But such legislation would not be an
“impoundment resolution” or a “rescission bill” within the meaning of the ICA, and therefore it
would not likely be in order for Congress to consider such stand-alone legislation under the ICA’s
expedited provisions.474 That said, an impoundment resolution might have practical effect, if not
legal effect, as it might persuade an agency to end a deferral that one house has disapproved.
The ICA supplements Congress’s role in monitoring and responding to impoundments by
assigning oversight tasks to the Comptroller General. If an agency fails to make impounded

465 See 2 U.S.C. § 682(4). This definition of impoundment resolution is a vestige of the original ICA, which, as
discussed below, expressly provided for single-house resolutions that would require release of deferred funds. See infra
notes 467–470 and text.
466 Cf. I.N.S. v. Chadha, 462 U.S. 919, 954–55 (1983) (explaining that for Congress to take actions that are “legislative
in purpose and effect” because the actions alter “legal rights, duties, and relations of persons,” including persons within
the executive branch, it must comply with the bicameral passage and presentment requirements of Article I, § 7 of the
Constitution).
467 Congressional Budget and Impoundment Control Act of 1974, Pub. L. No. 93-344, § 1013(b), 88 Stat. 297, 335
(1974).
468 See City of New Haven v. United States, 809 F.2d 900, 905 (D.C. Cir. 1987) (noting that the federal government
defendants “concede[d], as they must, that the [ICA’s] legislative veto provision” was unconstitutional under Chadha).
469 See Balanced Budget and Emergency Deficit Control Reaffirmation Act of 1987, Pub. L. No. 100-119, § 206, 101
Stat. 754, 785 (1987).
470 That said, Congress amended statute to further limit when an agency could defer funds. See CHAFETZ, supra note 70,
at 65.
471 See CIRCULAR NO. A-11, supra note 290, at § 112.16 (recognizing that Congress could “enact[]” legislation to
disapprove of a deferral in which case a deferral would need to be released “not later than the day following enactment
of the legislation”).
472 See, e.g., Clinton v. City of New York, 524 U.S. 417, 438 (1998) (explaining that “after a bill has passed both
Houses of Congress, but ‘before it becomes a Law,’ it must be presented to the President” (quoting U.S. Const. art. I,
§ 7, cl. 2)).
473 See supra note 143 (collecting authority for the proposition that Congress can draft statutes to require executive-
branch expenditures).
474 See, e.g., 2 U.S.C. §§ 681(4) & 688 (providing for expedited consideration of an “impoundment resolution” and
defining such a resolution as one that “only expresses . . . disapproval of a proposed deferral of budget authority”
(emphasis added)).
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budget authority available under the ICA, GAO may “bring a civil action in the United States
District Court for the District of Columbia.”475 The relief sought in such a lawsuit would be “to
require such budget authority to be made available for obligation.”476 The Act empowers the
district court to enter “any decree, judgment, or order which may be necessary or appropriate to
make such budget authority available for obligation.”477
For nearly its entire existence, this authority has lain dormant. GAO has apparently sued under
this provision only once, in 1975, one year after the ICA’s enactment. GAO sued, seeking an
injunction requiring President Gerald Ford’s Administration to make deferred budget authority
available for a low-income home ownership program.478 The federal government asked the
district court to dismiss the lawsuit, arguing that the ICA unconstitutionally conferred an
executive function, the prosecution of a lawsuit to enforce the laws of the United States, on an
agent of the legislative branch.479 The district court rejected the federal government’s motion to
dismiss and granted the Comptroller General’s request for a preliminary injunction.480 Thereafter,
the parties stipulated to dismissing the case.481
Despite this favorable early ruling, it remains an open question whether, under the ICA, the
Comptroller General could obtain the release of impounded funds through litigation. GAO has
statutory authority to sue “to require the head of the agency to produce a record” when an agency
refuses to “give the Comptroller General information the Comptroller General requires about the
duties, powers, activities, organization, and financial transactions of the agency.”482 Using this
authority, the Comptroller General sued Vice President Richard Cheney for documents related to
the National Energy Policy Development Group, which the Vice President chaired.483 In 2002, a
district court dismissed the suit, holding that the Comptroller General had not suffered, as a result
of the Vice President’s refusal to produce records, the type of injury required to show
constitutional standing.484 Should GAO bring another lawsuit under its ICA authority, the
executive branch would likely rely on similar arguments.

475 Id. § 687.
476 Id.
477 Id.
478 Opposition of Plaintiff to Defendants’ Motion to Dismiss at 5, Staats v. Lynn, No. 75-0551 (July 28, 1975),
reprinted in GAO Legislation, Part I, Hearing Before the Subcomm. on Reports, Accounting, and Management of the S.
Comm. on Gov’t Ops., 94th Cong. 199 (1975) [hereinafter 1975 GAO Legislation Hearing].
479 Points and Authorities in Support of Defendants’ Motion to Dismiss at 11–13, Staats v. Lynn, No. 75-0551 (June 16,
1975), reprinted in 1975 GAO Legislation Hearing, supra note 478, at 178–80.
480 Specifically, the district court ordered the government to record the deferred budget authority as obligated, so that
the budget authority’s period of availability would not lapse while the litigation proceeded to judgment. See Staats v.
Lynn, No. 70-0551 (Aug. 20, 1975) (ordering defendants to “record[] as an obligation of the United States” the budget
authority which was the subject of the President’s deferral special message). The defendants complied with the Court’s
order the day after it issued. See Staats v. Lynn, No. 70-0551 (Nov. 26, 1975) (stipulation of dismissal).
481 Charles Tiefer, The Constitutionality of Independent Officers as Checks on Abuses of Executive Power, 63 B.U. L.
Rev. 59, 67 n.39 (1983); see also GOV’T ACCOUNTING OFFICE, REVIEW OF THE IMPOUNDMENT CONTROL ACT OF 1974
AFTER 2 YEARS, B-115398, at 218–25 (summarizing the Staats litigation).
482 31 U.S.C. § 716(a)(2), (b)(2). Congress recently provided GAO additional such authority to oversee administration
of budget authority made available to respond to the Coronavirus Disease 2019. See Coronavirus Aid, Relief, and
Economic Security Act, Pub. L. No. 116-136, Div. B, Title IX, § 19010(d) (2020).
483 Walker v. Cheney, 230 F. Supp. 2d 51, 52–53 (D.D.C. 2002).
484 Id. at 74–75 (“Here, the Comptroller General has suffered no personal injury as a private citizen, and any
institutional injury exists only in his capacity as an agent of Congress—an entity that itself has issued no subpoena to
obtain the information and given no expression of support for the pursuit of this action.”).
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Key Takeaways: Oversight Under the ICA

Congress may act under expedited procedures on a rescission special message using a rescission bill.

Once enacted, a rescission bill has the force of law, as it must be passed by both chambers and presented to
the President before enactment.

Congress may act under expedited procedures on a deferral special message using an impoundment
resolution.

An impoundment resolution lacks the force of law because it is passed by only one house of Congress.

GAO reports to Congress when it identifies unreported deferrals and also reviews special messages. GAO
has statutory authority to sue an agency to make budget authority available for obligation when the ICA
requires the agency to make the funds available.
Appropriation Riders
Beyond these generally applicable fiscal control statutes, Congress exerts control over federal
funds through appropriations statutes themselves. When granting budget authority to a particular
federal agency, Congress commonly imposes conditions on the availability of budget authority.
Also called riders, the conditions function as “a limitation or requirement.”485 These conditions
may appear in the text of the appropriation itself, in general provisions applicable to a particular
title of an appropriations act, or in general provisions applicable to all titles of an appropriations
act. Alternatively, conditions on the use of appropriated funds may also be enacted outside of the
appropriations process in the provisions of any other law.486
At times, the terms of Congress’s appropriation riders spur objections from the executive branch
that Congress has exceeded its constitutional authority in passing the rider. The President may
communicate such objections in many ways, from correspondence to Congress, to hearing
testimony, to presidential signing statements.487 The executive branch’s objections are perhaps
most comprehensively set forth in opinions issued by DOJ at the request of the President or other
executive branch officials.488 However communicated, the President may state that, based on such
objections, the agency should construe the rider to avoid its allegedly unconstitutional features.489
The executive branch’s analysis typically distinguishes between two types of funding decisions:
(1) Congress’s refusal to grant any budget authority to carry out a statutory function, and
(2) Congress’s decision to grant budget authority subject to an appropriations rider. Given

485 See GAO GLOSSARY, supra note 19 (defining appropriation rider to include “a limitation or requirement in an
appropriation act”).
486 See supra notes 270–272 & text.
487 E.g., 1 PUB. PAPERS OF PRESIDENT GEORGE W. BUSH 1153 (2006) (directing the Secretary of State to construe a
statutory provision requiring consultation with congressional committees prior to exercising certain statutory authorities
as “requir[ing] only notification”).
488 Federal law tasks the Attorney General with providing opinions on questions of law at the request of the President or
the head of an executive branch agency or military department. See 28 U.S.C. §§ 511–13. While the Attorney General
once personally rendered such opinions, the Attorney General has delegated this function to OLC. See 28
C.F.R. § 0.25(a).
489 See Constitutionality of Statute Directing Executive Agency to Report Directly to Congress, 6 Op. O.L.C. 632, 643
(1982) (“Broadly worded statutes that could be interpreted in such a way as to create a conflict with the separation of
powers have, in the past, been interpreted very narrowly so as not to impinge upon the constitutional prerogatives of the
Executive Branch.”).
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Congress’s appropriations power, the executive branch has “recognized that the Congress may
grant or withhold appropriations as it chooses.”490 In such a case, the executive branch’s only
remedy would be a “political” appeal to the electorate to have the funding hold lifted,491 but
meanwhile the executive branch could not administer the defunded program.
The executive branch has historically viewed appropriations riders differently. Unlike with a
complete denial of funding for statutory functions, Congress makes budget authority available,
but under a rider that dictates how that budget authority may be obligated. The rider requires
action, but only action of a certain type. In DOJ’s view, the Constitution imposes limits on
Congress’s ability to dictate how the executive branch obligates budget authority.492
The executive branch has phrased its position in varying terms, but the common theme of these
different phrasings is that Congress cannot use its appropriations power to frustrate the other
branches’ performance of their separate constitutional duties. Under one phrasing, Congress
cannot indirectly accomplish through its appropriations power what it could not accomplish
directly through its other legislative powers.493 If the Constitution prevents Congress from passing
a statute making congressional committees the final arbiters of tax refunds, then Congress cannot
make the availability of budget authority for tax refunds turn on committee approval.494 Under the
other phrasing, Congress may not require the President to cede constitutionally vested discretion
as a condition of receiving budget authority, and the President may not agree to give up
constitutional authorities or duties in exchange for budget authority.495
While the executive branch generally recognizes Congress’s power to withhold funds needed to
implement legislation, the executive branch does not concede to Congress a similar power to
withhold funds necessary for the President to carry out power or duties conferred by the
Constitution. DOJ has opined that Congress could not “purport[] to deny” the President “the
minimum obligational authority sufficient to carry” out a function “authorized by the
Constitution.”496

490 Authority of Congressional Committees to Disapprove Action of Executive Branch, 41 Op. Att’y Gen. 230, 233
(1955) (“It is recognized that the Congress may grant or withhold appropriations as it chooses, and when making an
appropriation may direct the purposes to which the appropriation shall be devoted.”).
491 Mutual Security Program—Cutoff of Funds from Office of Inspector General and Comptroller, 41 Op. Att’y Gen.
507, 526 (1960).
492 Id. at 527 (opining that “the power to appropriate . . . cannot be exercised without regard to constitutional limitation”
but rather must be exercised in a way that “is consistent with the letter and spirit of the constitution” (internal quotation
marks omitted)).
493 Memorial of Captain Meigs, 9 Op. Att’y Gen. 462, 469 (1860) (“If Congress had really intended to make [a military
officer] independent of [the president], that purpose could not be accomplished in this indirect manner any more than if
it was attempted directly.”).
494 See Constitutionality of Proposed Legislation Affecting Tax Returns, 37 Op. Att’y Gen. 56, 58–62 (1933)
(concluding committee approval rider attached to appropriation for the payment of tax refunds was unconstitutional
because it either assigned executive functions to a congressional committee in violation of the separation of powers or
permitted the Joint Committee on Taxation to exercise legislative power in violation of the Constitution’s lawmaking
provisions).
495 The President’s Compliance with the “Timely Notification” Requirement of Section 501(b) of the Nat’l Sec. Act, 10
Op. O.L.C. 159, 170 (1986) (“Just as an individual cannot be required to waive his constitutional rights as a condition
of accepting public employment or benefits, so the President cannot be compelled to give up the authority of his office
as a condition of receiving the funds necessary to carry out the duties of his office.”).
496 Authority for the Continuance of Government Functions During a Temporary Lapse in Appropriations, 5 Op.
O.L.C. 1, 5–6 (1981) (emphasis added).
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When DOJ identifies an unconstitutional condition attached to budget authority, it will advise
agencies how to treat the rider. The executive branch may determine that the rider is invalid but
not the appropriation to which the rider is attached. The executive branch usually will make this
determination after engaging in a severability analysis.497 A severability analysis examines
whether the valid provisions of a partially invalid statute can stand without the invalid provisions,
on the ground that Congress would “have preferred what is left of its statute to no statute at
all.”498 If DOJ finds a rider severable, it might instruct the agency to obligate the appropriation
without regard to the rider.499 Along similar lines, the executive branch may adopt an
interpretation of the rider that gives some effect to the rider but which does not require the agency
to administer its programs in a manner that allegedly conflicts with the Constitution.500 Such an
interpretation may diverge from the rider’s plain-text meaning,501 but DOJ has stated that it will
interpret an appropriations rider to avoid having to determine, under a different reading, that the
rider is unconstitutional.502
The executive branch’s objections tend to cluster in certain subject areas.503 Objections are
perhaps most likely when Congress imposes conditions affecting the President’s foreign affairs
powers.504 For example, in 1990 DOJ stated that because the President’s foreign affairs powers
allowed the President to determine who would represent the United States in international
negotiations, the President could disregard a proposed rider requiring him to include
representatives of “an entity controlled by” Congress in a delegation to the Conference on
Security and Cooperation in Europe.505 In 1996, DOJ stated that it would be unconstitutional for
Congress to condition the availability of appropriations on the United States opening an embassy
in Jerusalem, reasoning that the condition would “severely impair the President’s constitutional
authority to determine the form and manner of the Nation’s diplomatic relations.”506 DOJ may

497 See, e.g., Severability and Duration of Appropriations Rider Concerning Frozen Poultry Regulations, 20 Op. O.L.C.
232, 236–39 (1996) (performing severability analysis); Issues Raised by Foreign Relations Authorization Bill, 14 Op.
O.L.C. 37, 45–46 (1990) (same).
498 Ayotte v. Planned Parenthood, 546 U.S. 320, 323 (2006).
499 See Memorial of Captain Meigs, 9 Op. Att’y Gen. 462, 469 (1860) (“Every law is to be carried out so far forth as is
consistent with the Constitution, and no further. The sound part of it must be executed, and the vicious portion of it
suffered to drop.”).
500 See Constitutionality of Statute Directing Executive Agency to Report Directly to Congress, 6 Op. O.L.C. 632, 643
(1982) (rider requiring the Federal Aviation Administration, an administration within the Department of
Transportation, to submit “any” budget estimates or comments on legislation directly to Congress).
501 Id. (interpreting rider as requiring submission to Congress of only “final” estimates and comments that had
undergone “appropriate review” by “appropriate senior officials” within the executive branch).
502 See id. at 642–43 (“Broadly worded statutes that could be interpreted in such a way as to create a conflict with the
separation of powers have, in the past, been interpreted very narrowly so as not to impinge upon the constitutional
prerogatives of the Executive Branch.”).
503 Of course, as administrations change, DOJ may object (or not object) to an appropriation rider in a manner that
arguably diverges from a prior DOJ opinion objecting to a similar appropriation rider.
504 See, e.g., Unconstitutional Restrictions on Activities of the Office of Sci. & Tech. Policy in Section 1340(a) of the
Dep’t of Def. & Full-Year Continuing Appropriations Act, 2011, 2011 WL 4503236, at *1 (O.L.C. Sept. 19, 2011)
(rider preventing use of appropriations to “coordinate bilaterally in any way” with the People’s Republic of China or its
state-owned companies); Constitutionality of Section 7054 of the Fiscal Year 2009 Foreign Appropriations Act, 2009
WL 2810454, at *9 (O.L.C. June 1, 2009) (rider preventing use of appropriations to pay the expenses of U.S.
delegations to a United Nations entity presided over by a state found to “support[] international terrorism” (internal
quotation marks omitted)).
505 See Issues Raised by Foreign Relations Authorization Bill, 14 Op. O.L.C. 37, 38 (1990).
506 Bill to Relocate United States Embassy from Tel Aviv to Jerusalem, 19 Op. O.L.C. 123, 125–26 (1995); see also
Issues Raised by Provisions Directing Issuance of Official or Diplomatic Passports, 16 Op. O.L.C. 18, 19, 27–29
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also advise agencies to disregard conditions on appropriations that affect the President’s
constitutional power as commander-in-chief of the Armed Forces.507 In fact, the executive branch
first stated that it could disregard allegedly unconstitutional appropriation riders in 1860, when
Congress appeared to legislate in the area of particular command relations.508
DOJ has also objected to riders that, if honored, would give Congress a role in executing a law
that it has passed. Several times DOJ has advised agencies that they may disregard appropriation
riders that purport to make budget authority available for obligation only if a congressional
committee approves the proposed use.509 DOJ has resisted riders that would give effect to one-
house veto legislation by (for example) preventing the obligation of budget authority to
implement rules that were the subject of a resolution of disapproval passed by one house of
Congress.510 Riders also at times require an agency provide certain information or documents to
Congress.511 The executive branch may view such requirements as intruding on executive
privilege512 or as interfering with the President’s view of his authority to control communications
between Congress and executive branch agencies.513
In stating these objections, the executive branch offers only an opinion on questions of law. If
confronted with a case testing the validity of a rider to which the executive branch has objected, a
federal court would generally give the executive branch’s opinion “only as much weight as the

(1992) (concluding that Congress exceeded its authority when it made appropriations available only if the Department
of State stopped issuing more than one diplomatic passport to U.S. government personnel to “to acquiesce in or comply
with the policy” of a foreign government to deny entrance to individuals whose passports reflected “that the person has
visited Israel”).
507 See, e.g., Constitutional Issues Raised by Commerce, Justice, and State Appropriation Bill, 25 Op. O.L.C. 279, 282–
83 (2001) (finding that a rider could not constitutionally prevent the President from obligating appropriations to support
a United Nations peacekeeping mission in which U.S. Armed Forces were under the command or operational control of
a foreign national).
508 See Memorial of Captain Meigs, 9 Op. Att’y Gen. 462, 468–69 (1860) (examining claim of a military officer that an
appropriations rider specified that he would be in charge of a particular public works project); see also Price, supra
note 10, at 373 & n.54 (noting that “presidents have claimed authority since at least 1860 to disregard some funding
constraints on their executive authorities” and citing Captain Meigs’ Memorial).
509 See Authority of Congressional Committees to Disapprove of Action of Executive Branch, 41 Op. Att’y Gen. 230,
230, 233–34 (1955) (opining that a rider requiring appropriation committee approval before appropriated funds could
be obligated for transfer of work performed “for a period of three years or more” by civilian DOD employees violated
the separation of powers); Severability and Duration of Appropriations Rider Concerning Frozen Poultry Regulations,
20 Op. O.L.C. 232, 232–33 (1995) (stating that rider purporting to make the validity of revised regulations dependent
on committee approval of such regulations was unconstitutional).
510 See Appropriations Limitation for Rules Vetoed by Congress, 4B Op. O.L.C. 731, 734 (1980) (authorizing agencies
to “implement regulations that have purportedly been vetoed by congressional action that does not meet the
Constitution’s requisites for legislation”).
511 See, e.g., Consolidated Appropriations Act, 2020, Pub. L. No. 116-93, Div. B, § 112, 133 Stat. 2317, 2395–96
(2019) (requiring the Secretary of Commerce to publish in the Federal Register a report made by the Secretary to the
President concerning the national security impacts of automobile imports and to provide to Congress any confidential
portions of the report that are not published in the Federal Register).
512 See Publ’n of a Report to the President on the Effect of Auto. & Auto.-Part Imports on the Nat’l Sec., 2020 WL
502937, at *5–8 (O.L.C. Jan. 17, 2020) (asserting that the FY2020 automobile-imports-report rider improperly applied
to materials legally privileged from disclosure); Mutual Security Program—Cutoff of Funds from Office of Inspector
General and Comptroller, 41 Op. Att’y Gen. 507, 525–26 (1960) (arguing that GAO’s view that a rider cut off State
Department funds if the agency did not provide Congress documents withheld from production under the president’s
assertion of executive privilege would render the rider unconstitutional).
513 Constitutionality of Statute Directing Executive Agency to Report Directly to Congress, 6 Op. O.L.C. 632, 639
(1982) (asserting that FAA submission of information directly to Congress could be read to “interfere greatly with the
President’s right to supervise the [FAA’s] action”).
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force of [its] reasoning will support.”514 Courts are free to reject the executive branch’s
reasoning.515 But executive branch objections can have significant practical effect. DOJ describes
its legal opinions as containing “authoritative interpretations of law for the Executive Branch.”516
Agencies tasked with obligating the relevant appropriation will likely follow DOJ’s opinions,517
though on occasion agencies have followed appropriation riders “as written” even after the
President objected to those provisions.518 It may also be difficult to find a plaintiff with standing
and incentive to sue to challenge the agency’s disregard of the rider. In the event that the
executive branch directs agencies to either disregard, or narrow the scope of, an appropriation
rider, Congress may respond through legislation and oversight, to name a few available tools.519

Key Takeaways: Appropriation Riders

The executive branch scrutinizes appropriation riders to identify constitutional concerns and may instruct
agencies to either ignore or narrowly construe riders that the executive branch finds are constitutionally
invalid.

The executive branch contends that Congress may not use a rider to interfere with another branch’s
exercise of its separate constitutional authorities or require a coequal branch to limit use of their
constitutionally vested powers in exchange for budget authority.

Common areas of executive branch objection include riders involving foreign affairs, use of the Armed
Forces, requirements to obtain committee approval for particular obligations or other agency action, and
disclosure of information to Congress.
Considerations for Congress
The fiscal control statutes described above erect background legal rules governing the handling,
obligation, or expenditure of public funds. Each of these background rules reflects a particular
policy determination made by Congress. The MRA prohibits agencies from retaining public
money the agencies receive, which ensures that agencies depend on appropriated sources of
funding. The Purpose Statute allows an appropriation to be obligated only for those objects
expressly or impliedly covered by the appropriation, limiting use of the appropriation to the
reason Congress provided the funds. Transfer and reprogramming provisions limit an agency’s
ability to shift funds between accounts or among certain subdivisions within an account,
preserving Congress’s determinations or expectations regarding the amount of activity that an

514 Comm. on the Judiciary v. Miers, 558 F. Supp. 2d 53, 104 (D.D.C. 2008).
515 See Lewis Pub. Co. v. Morgan, 229 U.S. 288, 311 (1913) (adopting a narrower construction of a statute than the
Attorney General).
516 Whether Appropriations May Be Used for Informational Videos News Releases, 29 Op. O.L.C. 74, 74 (2005).
517 See, e.g., The May 31, 2014 Transfer of Five Senior Taliban Detainees: Hearing Before the H. Comm. on Armed
Services, 113 Cong. 27 (2014) (testimony of Chuck Hagel, Sec’y of Defense) (confirming that the President directed
DOD to transfer detainees held at Naval Station Guantanamo Bay without notice to Congress, even though an
appropriation rider required 30 days’ notice of such transfer, because OLC advised the President that he had
constitutional authority to effect the transfer without notice).
518 See, e.g., Presidential Signing Statements Accompanying Fiscal Year 2006 Appropriations Acts, B–308603, 2007
WL 1746393, at *5 (Comp. Gen. June 18, 2007) (noting that, after reviewing how agencies executed, if at all, 19
provisions in an appropriations act as to which the President “raised some concern or objection,” agencies executed 10
provisions “as written”).
519 For a discussion of the tools available to Congress, see CRS Report R45442, Congress’s Authority to Influence and
Control Executive Branch Agencies, by Todd Garvey and Daniel J. Sheffner.
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agency may or would undertake in a given area. The Antideficiency Act prevents obligations
beyond available appropriations. The ICA limits the executive branch’s ability to withhold budget
authority from obligation or expenditure, so that the President cannot frustrate Congress’s
purpose in providing that budget authority. Congress has also established means for enforcing
these legal rules. Federal officers and employees face discipline or penalties for violating the
MRA or the Antideficiency Act. Reprogramming provisions ensure congressional awareness of
new allocations of agency funds. And the ICA provides a role for Congress and its agent, GAO, to
monitor agency impoundment of funds.
Sometimes, though, Congress may decide that these background legal rules strike the wrong
balance. Congress may see value in insulating an agency, in whole or in part, from the annual
appropriation process.520 Or Congress may wish to grant the President, OMB, or agencies greater
flexibility to respond to changing circumstances by obligating appropriations for broader
purposes. Congress may even decide that there is value in having agencies tasked with
implementing a program decide whether, for policy reasons, budget authority should be withheld
from obligation. If Congress reaches any of these judgments, though, Congress must ensure that
its intent translates into law by crafting legislation that provides any needed exceptions from the
background legal rules created by the fiscal control statutes.

520 For example, to varying degrees statute insulates certain financial regulatory agencies from the periodic
reauthorization and annual appropriations. See CRS Report R43391, Independence of Federal Financial Regulators:
Structure, Funding, and Other Issues, by Henry B. Hogue, Marc Labonte, and Baird Webel, at 3 & 27 tbl. 5 (discussing
the concepts of accountability and independence in the context of independent agencies and identifying the funding
characteristics of financial regulatory agencies).
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Appendix. Glossary
Apportionment
The process of distributing an appropriation available for a definite period to
particular time periods or functions. Appropriations provided for an
indefinite period and authority to incur obligations by contract in advance of
appropriations are apportioned to achieve their most effective and
economical use.
Appropriation
Authority provided by statute for an agency to obligate and expend money
from the Treasury for a specified purpose.
Appropriation Rider
As used in this report, a limitation or requirement in an annual,
supplemental, or continuing appropriations act.
Authorization
Authority provided by statute for an agency to perform functions, administer
programs, or receive appropriation. An authorizing statute might provide
budget authority, such as by establishing an entitlement or providing
borrowing authority.
Budget Authority
Authority provided by statute to enter into financial obligations on behalf of
the United States that will result in the immediate or future outlays of
federal funds.
Deferral
The act of withholding or delaying the obligation or expenditure of budget
authority (through creation of reserves or otherwise) or any other action or
inaction that effectively precludes the obligation of budget authority.
Expenditure
The act of spending money, including to pay an obligation.
General Provision
The numbered provisions of an appropriations act that, among other things,
may set the conditions under which budget authority may be obligated or
expended.
Impoundment
Action or inaction by an officer or employee of the federal government that
precludes the obligation or expenditure of budget authority.
Impoundment Resolution
Under the ICA, a nonbinding resolution passed by only one chamber of
Congress disapproving of a deferral.
Obligation
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 based only on
the actions of a third party.
Pocket Rescission
The act of proposing a rescission of budget authority under the ICA at a
time when the resulting 45-legislative-day hold period would last for the
remainder of the budget authority’s period of availability. GAO contends
that the ICA prohibits pocket rescissions, while the executive branch argues
the ICA does not.
Program, Project, or Activity
An element within a budget account. For annually appropriated accounts,
these elements may be identified in Appropriations Committee reports and
budget justifications. For permanent appropriations, OMB identifies these
elements in certain schedules included in the President’s budget submission.
These elements are intended to provide more detail concerning the
operations funded by a given account.
Programmatic Delay
Delay in making budget authority available for obligation that results from an
agency taking steps necessary to implement a program. Programmatic delay
need not be reported under the ICA.
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Report-and-Approve Provision Provision in an appropriations act that requires an agency to report a
proposed use of budget authority to some component of Congress, typically
specified committees, and then receive approval for the use from that
component before budget authority is available for obligation or
expenditure. Provisions of this type are of questionable constitutional
validity, given Supreme Court decisions specifying the steps that, under the
Constitution, Congress must take to engage in “legislative” action.
Report-and-Wait Provisions
Provision in an appropriations act that requires an agency to report a
proposed use of budget authority to some component of Congress, typically
specified committees, and then wait a stated time period after submitting
notice before obligating or expending budget authority.
Reprogramming
Shifting funds within an appropriation account to obligate funds in a manner
different than that contemplated at the time of the appropriation’s
enactment.
Rescission Proposal
A proposal, pursuant to the ICA, that Congress cancel budget authority
previously provided. May also refer to cancelled budget authority.
Rescission Bill
A bill eligible for expedited consideration under the ICA that when enacted
into law cancels budget authority previously provided.
Reserve
Withholding appropriations from apportionment to effect savings, provide
for contingencies, or as specifically provided by law.
Special Message
Message submitted to Congress by the President under the ICA, proposing a
rescission or a deferral.
Transfer
The act of shifting funds between appropriation accounts.
Transfer Authority
Authority provided by statute to debit one appropriation account to the
credit of another.

Author Information

Sean M. Stiff

Legislative Attorney

Disclaimer
This document was prepared by the Congressional Research Service (CRS). CRS serves as nonpartisan
shared staff to congressional committees and Members of Congress. It operates solely at the behest of and
under the direction of Congress. Information in a CRS Report should not be relied upon for purposes other
than public understanding of information that has been provided by CRS to Members of Congress in
connection with CRS’s institutional role. CRS Reports, as a work of the United States Government, are not
subject to copyright protection in the United States. Any CRS Report may be reproduced and distributed in
its entirety without permission from CRS. However, as a CRS Report may include copyrighted images or
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