Deep Dive into Principles of Federal Appropriations Law: The Sequel

Weekly WastebasketDeep Dive into Principles of Federal Appropriations Law: The SequelIt's not just Antideficiency; there's impoundment too.

As you might have surmised we have a nerdy fixation on the statutes and regulations that surround the spending of federal funds. After all, every federal dime spent, one way or another, comes  out of the taxpayers’ pocket. When it comes to federal appropriations, the bills that pass the House and Senate and are signed by the president, become the rule of law. And we all get to live with it.

We’ve written a lot lately about the Antideficiency Act which keeps the executive branch from spending any money that wasn’t appropriated by the legislative branch for that specific purpose. This is the statute that – in our opinion – the Trump Administration ignored to take money appropriated for military construction projects and spend it, in violation of the law, on fencing along the southern border. The administration justifies its actions by citing a legally-suspect “emergency” declaration signed by the president – which was recently dealt a setback in federal court.

The flipside to an executive agency spending money it doesn’t have, is an executive branch that refuses to spend money as it has been directed. This leads to another major news story of the recent weeks:  the withholding of aid funds for Ukraine that was appropriated by Congress. This is the inverse of the government trying to spend money without having a proper appropriation. In this case the executive branch sought to withhold money the Congress had appropriated for a specific purpose. And that, students of federal appropriations law, is an illegal impoundment. Prepare to dive with us into the rules against impoundment.

We often write about the Congressional Budget Act of 1974 as it relates to the establishment of the Congressional Budget Committees and the Congressional Budget Office. But, in fact, the full name of the legislation is the “Congressional Budget and Impoundment Control Act of 1974.” The impoundment section of the act was in response to actions by President Richard Nixon to impound funds appropriated for water pollution projects at the Environmental Protection Agency.

After court battles over the issue, the Congress enacted the current legislation with an eye to strengthening the legislative branch role in federal appropriations. Under the law, impoundment is either an action or inaction by a federal officer or employee that delays or denies the obligation of Congressionally appropriated funds. Impoundment actions break down into two categories: deferrals (delays that cannot last longer than 45 days nor extend beyond the end of the fiscal year) and rescissions. In the case of either a deferral or a rescission, the president is required to submit a message to the Congress. In the case of a rescission, the Congress must pass a special rescission bill or include approval of the rescission in another, larger, bill. If Congress does not pass a rescission bill, the president must spend the funds. That’s what everyone agreed to by passing the appropriations bills into law.

We go through all this because rules matter. The federal government spent $4.1 trillion in fiscal year 2019. There are processes, procedures, and statutes used to govern the distribution of this unfathomable number. Whether you believe the government is too big, or too small, you should be able to agree that rules must govern. That’s how you get accountability. This isn’t the wild wild west.

Just as elections have consequences, appropriations bills have consequences, too. Every elected member of the federal government has an opportunity to weigh in on federal spending decisions. This includes the president. Every Congressional vote is a mini “election” of authority. When a majority of each chamber elect to agree to details in a spending bill, and the president elects to sign that bill into law, it’s time to follow the purpose, intent, and letter of that law.

Legislating is hard work. It’s high stakes, tedious, mind numbing, and exhilarating. Perhaps no area proves that more than the annual appropriations process. In the end there is always at least one bill and it always contains the good, the bad, and the ugly. And there is always next year where every elected member of the government gets to make their case once again.

Every voter has an interest in ensuring every elected official involved in federal spending decisions, and every civil servant, private contractor, or state official responsible for carrying out those decisions, respects and follows the rule of law. This is a nation of laws not of whims.

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