Congress' Domain: Appropriations, Time, and Chevron
by Matthew B. Lawrence
Abstract
Annual appropriations and permanent appropriations play contradictory roles in the separation of powers. Annual appropriations preserve agencies’ need for congressionally-provided funding and enforce a domain of congressional influence over agency action in which the House and the Senate each enforce unicameral written commands through the threat of reduced appropriations in the next annual cycle. Permanent appropriations permit agencies to fund their programs without ongoing congressional support, circumscribing and diluting Congress’ domain.
The unanswered question of Chevron deference for appropriations demonstrates the importance of the distinction between annual appropriations and permanent appropriations. Uncritical application of governing deference tests that emphasize the time and procedural steps an agency put into an interpretation would tend to favor deference for agency interpretations of permanent appropriations but not for annual appropriations. Yet this result is upside-down if courts’ goal is to promote accountability and avoid interference with the balance of power between the political branches. Chevron has two core functions, a sub-delegation function (it transfers the authority delegated in ambiguities from courts to agencies) and an anti-entrenchment function (it relieves interpretations of the solidifying force of stare decisis). Applied to annual appropriations both functions respect Congress’ primary role in enforcement through the appropriations cycle; applied to permanent appropriations both functions interfere with Congress’ domain.
Courts that evaluate Chevron for appropriations without acknowledging and addressing the elemental difference between annual and permanent appropriations interfere with the political branches and frustrate Congress’ likely expectations. Courts cognizant of annual and permanent appropriations provisions’ contradictory roles in the separation of powers should address the confusion that surrounds Chevron’s applicability to appropriations by opting for doctrinal approaches the Article recommends to refuse or at least discourage deference for permanent appropriations provisions and permit deference for annual appropriations provisions. Finally, the Article concludes by suggesting how the annual/permanent distinction may be relevant to the incorporation of appropriations into other aspects of administrative law doctrine, including legislative standing, reviewability, and non-delegation.
Introduction
“Unless they’re paying your bills, pay them [] no mind.”
“The Congress shall have the power . . . To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years.”
In my house we have our five-year-old feed the dogs. Our reasoning will be intuitive to any pet owner. Pets naturally have a respect for the “hand that feeds,” aware that anyone who they count on for food has a ready means of punishing disobedience—through the stomach. But pets feel no such gastronomic compulsion to obey those who they do not count on for their daily meals. “Hunger changes worlds.”
This simple metaphor is critical for understanding the contradictory roles of annual appropriations and permanent appropriations in the separation of powers. The Constitution prohibits federal spending without an “appropriation,” i.e., legislation specifying an amount and source of funds for an agency to use for a designated purpose. Much like a pet obeys a master on whom it depends for its daily meals, agencies dependent upon annual appropriations obey both Houses of Congress because each must consent to enact such appropriations. Through this “hands that feed” dynamic Congress has made annual appropriations a domain where the House of Representatives and the Senate have enduring, independent power and in which compliance with “law” (including unicameral texts that no court would enforce even if they had the time to exercise review) is enforced primarily by the Houses themselves through the threat of retribution in the appropriations cycle. On the other hand, permanent appropriations provisions play a destructive role in this dynamic. They give agencies a way to feed themselves without or even despite the House and/or Senate, shrinking and diluting Congress’ domain.
Annual and permanent appropriations are essentially opposites, matter and anti-matter, fire and water, in the separation of powers. One preserves what the other destroys, namely, agencies’ underlying, recurring need for funds that only the mutual assent of both the House and Senate can provide.
This distinction between annual appropriations, which preserve congressional power, and permanent appropriations, which destroy it, was well understood to the Framers. The Constitution explicitly prohibits permanent (and long-term) appropriations for the army, a provision the Framers included in order to secure for popular majorities (who get to elect a new House every two years) an ongoing check on the use of military force, no matter what their predecessors might have enacted into law. The two year clause keeps the use of military force forever within Congress’ domain. But despite the constitutional pedigree of the temporal distinction between annual and permanent appropriations, it is underappreciated in contemporary doctrine and scholarship, a symptom of administrative law’s longstanding failure to, in Professor [Gillian] Metzger’s words, “take appropriations seriously.”
This Article explains the contrasting effects of annual (and other short-term) and permanent (and other long-term) appropriations provisions on the separation of powers. It then demonstrates how this distinction can be determinative in incorporating appropriations into administrative law doctrine by using it to address the unresolved question of Chevron for appropriations, i.e., whether courts should defer to agency interpretations of ambiguous appropriations provisions. Blockbuster lawsuits about the construction of a wall along the southern border and the Affordable Care Act’s health insurance subsidies have recently brought this question to the fore, but the federal appellate courts have not definitively resolved it, district courts have taken a plethora of contradictory approaches, and legal scholarship has offered little guidance.
The distinction between annual and permanent appropriations is pivotal to evaluating doctrinal paths forward for the unresolved question of Chevron in appropriations law. Unmindful application of the Supreme Court’s governing (if indeterminate) Mead test to appropriations provisions tends to favor deference for permanent appropriations but not for annual appropriations, because permanent appropriations are more likely to be included in a measure specific to one agency (a perk in the Mead test) and are on the books long enough for agencies to interpret them through notice and comment rulemaking (another perk). But, the Article explains, this result is upside-down if courts’ goal is avoiding interference with the balance of power between the legislature and the executive. Chevron has two core functions, a sub-delegation function (it transfers the authority delegated in ambiguities from courts to agencies) and an anti-entrenchment function (it relieves interpretations of the solidifying force of stare decisis). Applied to annual appropriations both functions respect Congress’ primary role in enforcing appropriations law; applied to permanent appropriations both functions undermine Congress’ domain.
Courts that evaluate Chevron for appropriations without acknowledging and addressing the elemental difference between annual and permanent appropriations interfere with the political branches and frustrate Congress’ likely expectations. Courts cognizant of appropriations provisions’ distinctive role in the separation of powers should address the confusion that surrounds Chevron’s applicability to appropriations by opting for doctrinal approaches the Article recommends to avoid or at least minimize deference for permanent appropriations provisions and permit deference for annual appropriations provisions.
The Article’s contribution is descriptive, doctrinal, normative, and prescriptive. Its descriptive contribution is to elaborate on annual appropriations’ role in preserving and supporting an often-overlooked domain of legislatively-enforced law governing agencies and on permanent appropriations’ role in fencing in and diluting Congress’ domain. Its doctrinal contribution is to map courts’ confusion in deciding whether to treat agencies’ interpretations of ambiguous appropriations provisions as binding, that is, in deciding whether to apply Chevron to appropriations. Its normative contribution is to argue that the effects of applying Chevron to appropriations depend critically on whether the provision to be interpreted is annual or permanent, and in particular that Chevron’s delegation and anti-entrenchment functions respect congressional power when applied to annual appropriations but diminish it in when applied to permanent appropriations. Finally, its prescriptive contribution is to argue in light of all of this that courts and scholars incorporating appropriations into administrative law doctrine should begin with the elemental distinction between annual appropriations and permanent appropriations, and to recommend specific doctrinal approaches to Chevron for appropriations that do so.
The Article proceeds in four parts. Part I describes appropriations concepts and practices that are most important for understanding the separation of powers and doctrinal questions appropriations present. It describes the anatomy of a typical statutory appropriation and the outer boundaries of the category of “appropriations.”
Part II explains how annual appropriations preserve and enforce a domain of unicameral “law” governing administrative agency behavior that includes texts no court would enforce but agencies and Congress treat as binding, including appropriations committee reports, conference reports, and budget justifications. Part II also explains how permanent appropriations provisions circumscribe and dilute this domain of enduring congressional influence.
Part III demonstrates the doctrinal importance of the distinction between annual and permanent appropriations provisions through the example of Chevron for appropriations. It summarizes the doctrinal confusion surrounding the applicability of Chevron to appropriations; the few courts to have addressed this question have gone every which way, perhaps because appropriations do not fit readily into the literal terms of governing doctrinal tests. It then explains that the effects of applying Chevron in appropriations law depends on whether the provision to be interpreted is annual or permanent, and that deference for permanent appropriations in particular diminishes legislative power. It therefore recommends that courts aspiring to choose an interpretive approach that avoids interference with the balance of powers pursue a doctrinal path forward that disfavors deference for permanent appropriations, which at a minimum requires application of the governing Mead test mutatis mendatis (with things altered that should be altered) to appropriations.
Finally, a brief conclusion summarizes the Article’s contribution and reflects on broader implications of the elemental distinction between annual and permanent appropriations for administrative law doctrine. It suggests, based on this distinction, future inquiry into congressional power to delegate the power of the purse to the executive branch in permanent law, the applicability of the Supreme Court’s holding that lump sum appropriations are committed to agency discretion by law to permanent appropriations provisions, and the relevance of duration of appropriations provisions to the legislative standing debate.
—from Congress' Domain: Appropriations, Time, and Chevron, 71 Duke Law Journal (forthcoming 2021)