Appropriations Presidentialism

Abstract

Since the start of the second Trump administration, the executive branch has attempted to change how federal spending works by asserting unilateral, centralized authority to condition, delay, cancel, or otherwise disrupt federal obligations and expenditures without regard to longstanding legal understandings and norms.  This appropriations presidentialism is unprecedented in scope and degree, and it threatens to weaken a key congressional check on executive policy, while also disrupting the settled expectations of civil servants, contractors, grantees, program beneficiaries, and others who were counting on continued federal funding for certain programs or activities.  Those injured by these executive actions are understandably turning to courts for redress.  But while courts have an important role to play in maintaining checks and balances, excessive judicial oversight of federal spending risks further shifting control away from Congress and exacerbating the potential for disruption of funding recipients’ expectations.

This Essay documents this new appropriations presidentialism and offers preliminary reflections on appropriate responses. Noting that many important threshold questions about the role of courts in this area are unsettled, the essay urges courts addressing spending disputes to proceed with caution and due attention to the complex tradeoffs that attend judicial intervention in this area.  In addition, it urges courts to attend carefully to the specifics of the appropriations and authorizing laws that govern individual programs and activities, even in the face of sweeping executive claims of blanket authority.  And finally, it stresses that there is ultimately no substitute for Senators’ and Representatives’ energy and attention when it comes to maintaining Congress’s constitutional authority over the public purse.

Keywords: appropriations, power of the purse, president, congress, courts, justiciability, separation of powers, imperial presidency