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The Unfilter. | |
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| The Brookings Institution held a discussion on the federal budget and which branch of government has control over spending and appropriations. | ||
| During their nearly hour and 20-minute remarks, law professors and a former congressional staffer also discussed executive power and legislative checks. | ||
| Good afternoon and welcome. | ||
| I'm David Wessel, Director of the Hutchins Center on Fiscal and Monetary Policy here at Brookings. | ||
| And I'm really pleased to have moderating this panel on the power of the purse, which when we conceived it seemed to be the big issue in Washington, but has been kind of crowded out by tariffs and deportations. | ||
| As I'm sure many of you know, Article 1 of the Constitution says that no money shall be drawn from the Treasury but in consequence of law. | ||
| Article 2 says the President's duty is to take care that the laws be faithfully executed. | ||
| The Anti-Deficiency Act, which has its roots in 1870, makes it a crime for a federal government employee to spend money that has not been appropriated by Congress. | ||
| And the Empoundment Control Act of 1974, passed after President Nixon refused to spend some funds that Congress has appropriated, says the president must spend the sums Congress has approved unless he submits a formal rescission request to Congress and Congress acts on it. | ||
| But both President Trump and the White House Budget Director Russ Volt say that 1974 law is unconstitutional, and that stirred a debate over who actually holds the power of the purse in our government. | ||
| Now, this isn't completely new to the Trump presidency. | ||
| There were some issues in both the Obama and the Biden presidencies, but nothing of the magnitude that we've seen now. | ||
| So we've invited four experts who I'm very pleased have agreed to join us. | ||
| Josh Chaffetz is a professor at Georgetown Law School and author of a book called Congress's Constitution, Legislative Authority and the Separation of Powers. | ||
| At the end, Luis Pasakoff is also a professor at Georgetown and has a forthcoming article called Appropriations Presidentialism, which is relevant to this conversation. | ||
| Keith Kennedy is a veteran of the Senate staff, 28 years on the Senate staff, 20 of them on appropriations committees and three different stints as the minority staff director. | ||
| And then joining us from Stanford is Michael McConnell, who's professor of law there and director of Constitutional Law Center and was a judge on the 10th Circuit from 2002 to 2009, nominated by President George W. Bush, confirmed unanimously by a democratically controlled Senate. | ||
| And he's the author of a 2020 book called The President Who Would Not Be King, Executive Power Under the Constitution. | ||
| I want to emphasize Brookings' commitment to diversity. | ||
| Josh went to Yale Law School. | ||
| Eloise went to Harvard. | ||
| Judge McConnell went to Chicago. | ||
| And Keith Kennedy, which I want to hear about this, has a Masters of Divinity from Duke, which probably explains his success on the Senate staff. | ||
| So I've asked each of the panelists to talk for a few minutes, and then we'll have a conversation. | ||
| I welcome some questions from the audience. | ||
| And I ask Josh to start first by talking a little bit about the history of the power of the purse. | ||
| Where does this come from? | ||
| Where were the founders drawing inspiration from Britain and so forth? | ||
| Well, thank you so much. | ||
| It's a pleasure to be here. | ||
| So when I get asked about the sort of history of more or less anything to do with Congress, but especially the power of the purse, I tend to start in the 17th century. | ||
| So I go long. | ||
| But it really, you know, there are sort of significant struggles between Parliament and the Stuart Crown sort of over the course of most of the 17th century that really begin to sort of define a role for the legislature in the power of the purse. | ||
| It's not until the Stuart monarchs were sort of constantly engaged in adventurism on the continent, which meant they needed more money than they could get from what Blackstone called their ordinary sources of revenue, which is to say the rents on their lands that they held and feudal dues and things like that. | ||
| And so they relied more on taxation than previous monarchs had. | ||
| This was also a moment of sort of rising parliamentary power for various economic, social, and religious reasons. | ||
| And so Parliament begins to push back, begins to say, first of all, you can't levy taxes without our permission. | ||
| Now, this is a principle that traces its roots back to Magna Carta, but really sort of is given teeth in the 17th century. | ||
| And secondarily, if you're going to tax us, we get to say what you spend the money on. | ||
| And these fights sort of take place throughout the 17th century. | ||
| They play a major part in the deposition of Charles I and the English Civil War. | ||
| After the Restoration, they play a major part in the restored government as well. | ||
| In the 1660s and 1670s, you have a number of instances where appropriations, you have sort of increasingly specific appropriations. | ||
| In several cases, there's even what you might anachronistically call an independent auditing board that's provided for in legislation to make sure the crown is spending the money the way it's supposed to. | ||
| There are several high-profile impeachments of royal officers specifically for spending money in ways that were not authorized by Parliament. | ||
| And it again becomes a major issue in 1688, 1689, the Glorious Revolution, when James II becomes the second of the four Stuart monarchs to be forcibly deposed. | ||
| And then in the 1689 Bill of Rights, one of the sort of provisions is that the Crown can't spend money, can't raise or spend money, except as has been authorized by Parliament. | ||
| The 18th century colonists across the Atlantic were very much looking to this history because they saw a real analog between Parliament's struggles against the Stuart Crown and their struggles and their colonial assemblies' struggles against royal officials in the colonies. | ||
| And so throughout the 18th century, you have all of these controversies where colonial officials, colonial legislatures will do things like refuse to pay the governor's salary, refuse to pay the salary of the judges. | ||
| Actually, if you look at the Declaration of Independence, one of the complaints there is that after the colonists stopped paying judges' salaries, the crown started paying their salaries, right? | ||
| We actually, you know, one of the complaints in the Declaration of Independence is that the Crown is paying his judges. | ||
| There are cases where the colonial assemblies stop paying rent on the governor's house, all in an attempt to sort of pressure the governor into doing sort of what the assembly wants rather than doing what the governor wants. | ||
| There are sort of specific controversies over how money would be spent. | ||
| There's something called the Wilkes Fund controversy in South Carolina, where the South Carolina Assembly wants to send money to what we today might call a legal defense fund for John Wilkes, who was this sort of major thorn in the side of the British government at the time and they sort of identified with his cause. | ||
| So they try to send money to him. | ||
| The governor vetoes that bill on the instructions from London, and the South Carolina Assembly basically shuts down South Carolina government starting in 1771 and basically never passes another bill between 1771 and when they're driven out in 1776. | ||
| So there's this like real sense of sort of legislatures being at the core of the spending power and fighting to maintain it and fighting to use it as a sort of cudgel against executives. | ||
| You see this in the early state Republican Constitution. | ||
| So after independence, I think 11 of the states write new state constitutions. | ||
| In nine of them, they provide that the treasurer of the state would be appointed by the legislature, not by the governor. | ||
| You see it in the Constitution, right? | ||
| Especially in the appropriations clause, right? | ||
| No money shall be drawn from the treasury except in consequence of appropriations made by law. | ||
| And you see it in early statutes as well. | ||
| So there is a history right from the beginning, even though it's not constitutionally required, of annual appropriations. | ||
| And that's again because that meant Congress would have a say every year in sort of how the money was getting spent and sort of collaterally would be able to use that as a stick if it didn't like other things the executive was doing. | ||
| Starting in the 1790s, as this sort of partisan competition picks up, you see increasingly detailed appropriation statutes. | ||
| So the very earliest federal appropriation statutes are five or six lines long. | ||
| But once you get competition between the sort of nascent federalists and Democratic Republicans, you start getting much more detailed appropriation statutes where people like Albert Gallatin, the great Democratic-Republican financier, doesn't want to give Alexander Hamilton sort of unfettered discretion about how to spend the money. | ||
| So he starts writing more and more detailed statutes about how to spend it. | ||
| You actually see this in the organic statute for the Treasury Department. | ||
| So one of the very first things the first Congress does is pass these statutes setting up the sort of three major departments, Treasury, War, and Foreign Affairs. | ||
| And the war and foreign affairs departments are both called executive departments. | ||
| Treasury is not. | ||
| The war and foreign affairs departments, the secretary is required to sort of do what the president tells him to. | ||
| There's nothing like that in the organic statute for treasury. | ||
| However, the treasury secretary is given a whole host of reporting responsibilities directly to Congress. | ||
| So once again, there's this sense that there is something sort of core legislative about how money is raised and how money is spent. | ||
| And this just carries forward. | ||
| I think Eloise will probably talk more about this, right? | ||
| But there are these sort of across the 18th century, there are these sort of grand fiscal statutes. | ||
| So there's the Miscellaneous Receipts Statute in 1849. | ||
| There's the Anti-Deficiency Act first passed in 1870. | ||
| And then into the 20th century with the Empowerment Control Act, these sort of major statutes, as well as the 1924 and 1974 Budget Acts, these major statutes that sort of assert Congress's power to define the fiscal constitution. | ||
| And that is coming out of this sort of long history of really viewing how money is raised and spent as a sort of core legislative power. | ||
| So I think that really sort of sets the stage for how our constitutional order, going back into English and British history, sort of views the role of money. | ||
| And so somebody said to me the other day, I'm embarrassed because it might have been one of these panelists or something I read you wrote, it wasn't that the founders thought Congress would be better at spending the money than the president. | ||
| It's just that this was the one way that there could be a check on the president. | ||
| Absolutely. | ||
| And you see this actually in the ratification debates over the Constitution. | ||
| People like Patrick Henry say in the Virginia Ratifying Convention says, you've created this president who will be a king, right? | ||
| To use something that sort of provides the title for Professor McConnell's book. | ||
| Your president will become a king. | ||
| And Madison immediately replies, that's not going to happen because of the separation of purse and sword. | ||
| As long as the president can't put an army in the field unless Congress pays for it, then you don't have that worry. | ||
| And this is something that Madison says in the Virginia Ratifying Convention, something that Hamilton says in the New York Ratifying Convention. | ||
| This is the major sort of federalist response to anti-federalist fears of the presidency. | ||
| Thanks. | ||
| So, Judge McConnell, maybe you can pick up from there. | ||
| Two questions. | ||
| One is, how important is this to the functioning of our democracy, that Congress have the power of the purse? | ||
| And what do you make of the administration's arguments that actually the 1974 Impoundment Act is unconstitutional, that blah, blah, blah, the president should have all this power? | ||
| Well, I think it's still foundational, although I have to say, as a practical matter, the budget process has been so messed up in the last 20 years that you really wouldn't know that Congress has this kind of authority. | ||
| Under the impoundment, actually, the budget control portion of the Empoundment Control Act, there's supposed to be a budget passed that the Congress then follows, and then you have certain appropriations bills that are programmatic under that. | ||
| But most years, they fail to do that. | ||
| And then as we come to this fiscal cliff at the end of the fiscal year, and they throw all the spending into one great big omnibus spending bill, which nobody knows what's in it. | ||
| And so Congress has basically failed to engage in the exercise of the powers that they have. | ||
| Now, that doesn't mean that the president has power either to spend money that hasn't been appropriated or to fail to spend money that has. | ||
| Both of those things are equally important. | ||
| If anything, I think the more important issues recently, until the last two months, the more important issues were more presidents asserting the authority to spend money or just spending money without appropriations. | ||
| There was a conspicuous case leading to litigation under President Obama, where he spent something like $7 billion in extra subsidies to insurance companies, health insurance companies that Congress had conspicuously failed to appropriate. | ||
| And that went to court. | ||
| Then you had the Biden student loan forgiveness, which was an expenditure. | ||
| It was a forgiveness, but nonetheless an expenditure without the authority of Congress. | ||
| So presidents do this too. | ||
| Until Trump, there hasn't been a lot of impoundment recently, and it's not quite clear how far he's going to press this. | ||
| But if I understand the constitutional theory, and I may not because they haven't made it clear, there's been no, you know, there are no briefs, we haven't really seen the arguments fleshed out. | ||
| But as I understand the argument, you know, the claim is that for most of American history, presidents did exercise a kind of impoundment. | ||
| And that is actually true, although I think ultimately not a persuasive constitutional argument. | ||
| But for a very long time, appropriations were understood to be ceilings rather than floors. | ||
| And if the president could accomplish the purpose of the appropriation by spending less than what was appropriated, everybody was pretty happy about that. | ||
| But the understanding was that whatever authority the president had through this was exercised not in opposition to the policies, spending policies of Congress, but rather in service of them. | ||
| So, you know, if Congress decides to build a post office and appropriates $8 million and the executive can build the post office for $6 million, that's great. | ||
| Most presidents did this. | ||
| I think the first example, at least that I'm aware of, others may know of an earlier one, but the first one that I can recall is that Thomas Jefferson declined to use appropriations that were made for five gunboats for the Mississippi River. | ||
| And his explanation was, now that we've bought the Louisiana Purchase, we no longer have a foreign government on the other side of the Mississippi, and so we don't need these gunboats anymore. | ||
| Some members of the Federalist Party thought that this was an excuse because they were actually trying to build up a serious Navy, and Jefferson was not keen on that. | ||
| But Jefferson did prevail in that. | ||
| Then along comes Richard Nixon. | ||
| And Richard Nixon used this flexibility, shall we call it? | ||
| The distinction between floors and ceilings of appropriations in a policy way and in direct opposition to the policy set by Congress, and simply refused to spend appropriated funds, or sometimes he would cut it by 40 percent or whatever, in an effort to bring federal spending down. | ||
| And two things happened in response to that. | ||
| One is that there was a whole spate of lawsuits. | ||
| We'll leave this at this point to take you live to Capitol Hill, where the U.S. House is about to gavel in for what's expected to be a brief session. | ||
| Live coverage here on C-SPAN. | ||
| The House will be in order. |