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Boston University School of Law




Actions of the federal government cost money. Legislative processes that specify the amounts and purposes of governmental expenditures control the scope and content of government actions.1 To paraphrase Chief Justice Marshall, the power to withhold spending involves the power to destroy.2

Those involved in the legislative process ordinarily do not engage in wholesale or sudden dismantling of government activities through unheralded failures to provide funds. While disputes over funding constitute a regular part of the nation's political activity, these controversies usually concern adjustments in the level of spending and of agency operations. A decision to terminate an agency usually takes the form of termination of authority rather than an unannounced cut-off of funds.3

This paper discusses the unusual case, the failure to appropriate funds for ongoing operations. The rules that govern such events carry intrinsic importance; they deal with intensely practical concerns of government administration. They also present statutory and constitutional questions that go to the fundamental structure of the federal government and the separation of powers among its political branches. The judicial branch never has prescribed how ongoing government agencies should behave in the absence of appropriated operating funds. While the Supreme Court has addressed separation-of-powers clashes in recent years with unwonted vigor and has settled some heavily disputed issues, 4 the rules that currently govern appropriations lapses appear in an opinion rendered by the Attorney General in the closing days of the Carter Administration ("1981 OAG"). 5 Unfortunately, the legal analysis of the 1981 OAG reflects the clear institutional stake of the executive branch in the outcome, so as to flaw the result.6

Although an agency might find itself without appropriated funds if Congress and the President decide to terminate or sharply modify the operations of the agency, the 1981 OAG addresses temporary lapses in appropriations. Disagreements during the legislative process over the level of funding for the government as a whole or for a specific agency may delay regular annual appropriations. All parties expect the major functions of the institutions involved to continue, but in the absence of an appropriation, no one can predict the level of funding or state with certainty that any funds will be appropriated. Should the agency maintain its existing operations but forgo new initiatives, or must it go further and cease all activities that incur expenditures, including compensation for employees? Do the same rules apply for the Internal Revenue Service and the Forestry Service?

The 1981 OAG answered these questions and became the operational guide for agencies faced with a lapse in appropriations. In form and reasoning the 1981 OAG resembles a judicial opinion which analyzes the competing claims; unlike a judge, however, the Attorney General is an active member of the executive branch and thus the opinion favors the institutional concerns of that branch and of the President. Even as it acknowledges Congress's primary role in appropriations through the legislative process, the 1981 OAG secures for the President and the executive branch considerable discretion over agency activities. Notwithstanding plausible arguments that the 1981 OAG claims more for the President and leaves less for Congress than the constitutional and statutory structure require, its nonconfrontational tone and the limited occurrence of the issue have obviated any adverse reaction from the legislative branch to date.

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