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The Constitution for Dummies: The Appropriations Clause

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So many times, we look at our American government through our American eyes, never through the lens of history. For instance, it seems obvious to us that the people who represent us in Congress would be the ones to approve and direct the spending of government money rather than the President approving and directing the spending of money whenever he pleases.

But, we need to look at this allocation of power through the lens of history to grasp its truly unprecedented reality. Historically speaking, what King or Emperor wasn’t empowered to spend money? What about waging war? What about treaties? How could a King wage war or enter into treaties without the ability to spend the money to do so?

The idea of taking the power to spend money away from the executive was unprecedented at the time of the American founding. The mere concept that the legislative is the one in charge of all allocation of money–meaning, the legislative holds the power over war, over law implementation, over federal agency power, and over every aspect of the funding and spending of government money–is truly unique in world politics.

And yet, in Article 1, Section 9, the Constitution states: “No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law; and a regular Statement and Account of the Receipts and Expenditures of all public Money shall be published from time to time.”

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In other words, federal money cannot be spent unless it is first attached to a law written by the people who represent the American people. In short, federal spending cannot be arbitrary.

I’ve harped on the importance of avoiding arbitrary power in government because arbitrary power is limitless power. Power is arbitrary when it’s not attached to some outside standard. The power our government possesses comes from the Constitution and is therefore, confined.

So, let’s take this a step further. The founders wanted to be sure that money, our money, when spent by the government would be intrinsically attached to and confined by the job description we gave our government.

If the government chooses to spend money, it can only do so within the confines of the Constitution. That is to say, all laws written by Congress must fall within the confines of Article 1, Section 8 of the Constitution and no money shall be drawn from the treasury unless Congress writes a law to support such a appropriation. Therefore, all spending is supposed to be confined and defined by the Constitution.

How It Works

See how all of this was supposed to work?

In fact, the reality that only Congress can appropriate funds is a given, without Article 1, Section 9 confirming it.

Kate Smith, Professor of Law at Yale Law School puts it this way: “The Appropriations Clause is not technically a grant of legislative power, because pursuant to the Necessary and Proper Clause (Article I, Section 8, Clause 1), Congress clearly has the power to specify the objects, amounts, and timing of federal spending—even if there were no Appropriations Clause. If Congress could not limit the Executive’s withdrawing of funds from the Treasury, then the constitutional grants of power to Congress to raise taxes (Article I, Section 8, Clause 1) and to borrow money (Article 1, Section 9, Clause 2) would be for naught because the Executive could effectively compel taxing and borrowing by spending at will. Rather, the Appropriations Clause creates a legislative duty that Congress exercise control and assume responsibility over the federal fisc. Congress’s “power of the purse” is at the foundation of our Constitution’s separation of powers, a constitutionally mandated check on Executive power.”

The creators of the American government wanted to make sure that there was an appropriate legislative check on how the executive spent money in the enforcement of law. In other words, it shouldn’t be arbitrary. This is critical because the people have the most direct connection and influence on Congress…outside of Congress, only two people in the U.S. government are elected. Get that. Out of the millions of government federal workers, staffers, employee, judges, ambassadors and the like, only Congress, the President and Vice-President are directly connected to the people.

It’s so imperative that Congress have a say over how federal money is spent that many executive powers are useless unless Congress chooses to fund them. Smith says, “Moreover, despite the categorical imperative of the Appropriations Clause, it would seem that Congress itself is constitutionally obligated to provide funding necessary for the President to undertake Executive powers specifically granted in Article II—to receive ambassadors, act as Commander in Chief, negotiate treaties, grant pardons, and the like. If Congress fails to provide necessary funds, then the grants of power to the President are themselves for naught.”

What Is An Appropriation?

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So, what is an appropriation?

An appropriation, defined by Smith “must specify the powers, activities, and purposes—what we may call, simply, objects—for which the funds may be used.” Appropriations are not merely Congressional directives about how much money the executive agency or President may spend, but also directives about the powers attached, the activities attached and purposes attached. Merely writing a law and creating a federal agency to enforce the law does not authorize that agency to spend funds. The funds must be appropriated by Congress. Again, the spending of money must be attached to an outside standard. It cannot be arbitrary. Spending with no limitation or standard is simply too much power to give to the executive.

Does Government Follow Article 1, Section 9, Clause 7?

The question then is this: does our government follow this Constitutional directive?

No. Through what some call “backdoor spending”, Congress has given discretionary spending authority to many agencies in the executive branch. For example, the Federal Reserve has total and complete authority over how it allocates and spends federal funds…with no congressional oversight. Other Congressional laws have “indefinitely authorized federal agencies to spend Treasury funds or special-purpose taxes, fees, or forfeitures, without separate appropriation of such funds.” (Smith). These have no limitations on amount or duration, although they must be spend on some specific object.

For example, spending on the national debt, entitlement programs such as Social Security, unemployment payments and the like “are likewise usually funded by an indefinite and permanent appropriation in the statute creating the program itself” (Smith). Smith further explains:

“There is, for instance, an indefinite, permanent appropriation for national intelligence activities, the ‘objects’ of which are only partially specified in federal statutes. One questionable form of spending authority is open-ended authority to receive and spend donations and gifts (even gifts conditioned for a particular purpose), which Congress has granted to a variety of federal agencies, including the State Department. Loan guarantees and insurance schemes, like mortgages backed by the Federal Home Loan Banks, similarly function outside the appropriations process, notwithstanding the federal financial liability incurred.”

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Further, the Constitution, in Article 1, Section 9, stipulates that, ““and a regular Statement and Account of the Receipts and expenditures of all public Money shall be published from time to time.”

However, according to Smith:

“Since the Founding Era, Congress has largely delegated its duty under the Statement and Accounts Clause to Executive Branch agencies such as the Treasury Department and later the Office of Management and Budget. Those agencies in turn (and in some cases, by statutory mandate) have failed to include or report in full on a variety of “backdoor” federal spending programs, federal insurance liabilities, and spending and borrowing by semi-autonomous federal entities. Certain national security spending is also excluded from the annual budget process. While the Congressional Budget Office and Government Accountability Office seek to provide further budget accountability as agents of the legislative branch, the Statement and Accounts Clause has de facto fallen in the purview of the Executive.”

In other words, part of the reason federal agencies, full of federal workers who are directly accountable to no citizens, have had an immense amount of discretionary spending authority over the past hundred years is this: Congress, who we have elected, has chosen to give this power to these agencies.

Conclusion

Yes, Congress has given these agencies an immense amount of arbitrary power. Not only are many of the Congressional laws written unconstitutional, but there isn’t even a direct line attaching the implementation and enforcement of that law to at least stay within the confines of the law itself. It’s arbitrary power built upon arbitrary power.

Need I remind you who employees the federal government…who pays the federal government?

We, the people, do. And we have an obligation to be effective, informed employers who do the following:

One: Know what our employee’s job description says.

Two: Make sure those we elect know that we know what it says.

Three: Hold those elected employees accountable to that job description and punish them accordingly if they do not follow it.

Otherwise, sections of the Constitution like the appropriations clause become nice suggestions with, very literally, no power.

The Liberty Belle

1 thought on “The Constitution for Dummies: The Appropriations Clause”

  1. I being on a public board understand appropriations , you are correct on “how it is to be spent , being that the instructions [ if we can call them that ] are confined in the constitutions ” . Will you be able to in the near future give us your opinion on the confrontation clause ? Thanks , keep up the good work explaining the constitution. Ron

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