The President's Power of the Purse

During the Reagan administration, Congress discovered that it could intimidate the executive branch by uttering again and again the same seven words, "Provided, that no funds shall be spent. . . ." This limitation, attached to numerous appropriations bills, enabled Congress, under the guise of protecting the public fisc, to frustrate the President's ability to perform his duties and exercise his prerogatives under the Constitution.

The predicate for this encroachment by Congress on the Presidency lies in the appropriations clause: "No Money shall be drawn from the Treasury but in Consequence of Appropriations made by Law . . . ." Despite the importance of enabling public officials to spend money or incur debts in the name of the federal government, this provision in the Constitution is one of the least scrutinized. In a recent article entitled Congress' Power of the Purse, Professor Kate Stith of Yale Law School argues that the Constitution prohibits the "expenditure of any public money without legislative authorization." This proposition, which she calls the "Principle of Appropriations Control," is an elaboration on a theory of the appropriations clause espoused during the Iran-Contra hearings and in myriad appropriations laws. This theory encompasses far more than fiscal responsibility; it envisions the appropriations power as an omnipresent legislative veto on presidential action, thereby fostering what Professor Stith calls "[t]he genius of regulating executive branch activities by limitations on appropriations . . . ."

Professor Stith's theory of the appropriations power is flawed for a number of reasons. Part I of this Article examines the text and history of the appropriations clause and shows that the text of the clause is more ambiguous than commonly believed and that historical support for reading the clause to be a legislative veto on presidential action is dubious at best. A better view of the historical record shows that the appropriations clause was most likely intended to ensure fiscal responsibility and accountability. Part II argues, in direct contrast to Professor Stith's theory, that the President, without violating the Constitution or statutory law, may obligate the Treasury provided that Congress has failed to appropriate the minimum amount necessary for him to perform the duties and exercise the prerogatives given him by article II of the Constitution. I claim no originality of authorship, for the theory that I articulate here has been advanced in one form or another by Presidents and their Attorneys General since the Presidency of George Washington. Part III then examines the limiting principles that constrain the President's impliedpower to spend public funds under this theory. And Part IV demonstrates how Congress has tried to use the appropriations power to impose unconstitutional conditions on the President's performance of his constitutional duties and exercise of his prerogatives. It will be shown that these efforts, if successful, undermine the unitary Executive sought by the Framers.

Part V argues that Professor Stith reads the appropriations clause so broadly that it would replace the unitary Executive with a plural one, thereby swallowing the principle of the separation of powers. Part VI examines the exception with which Professor Stith proposes to cure the absence of a limiting principle in her Principle of Appropriations Control. She argues that necessity might justify the President spending public funds in the absence of appropriations. However, I argue that a justification of necessity might make lawless spending by the President more likely to occur.

In conclusion, I argue that the fundamental principle animating the Constitution—the separation of powers—dictates a unitary Executive, and that a unitary Executive cannot tolerate congressional encroachments that, under the pretext of guarding the public purse, deny the President the funds necessary to perform the duties and exercise the prerogatives conferred on him by article II.

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