In recent years, Congress has repeatedly failed to appropriate funds necessary to honor legal commitments (or entitlements) that are them­selves enacted in permanent law. The Appropriations Clause has forced the government to defy legislative command and break such commit­ments, with destructive results for recipients and the rule of law. This Article is the first to address this poorly understood phenomenon, which it labels a form of “disappropriation.”

The Article theorizes recent high-profile disappropriations as one probabilistic consequence of Congress’s decision to create permanent legis­lative payment commitments that the government cannot honor without periodic, temporary appropriations. Such partially temporary programs include Medicaid and scores of other important, permanent features of the administrative state. The Article’s core descriptive contribution is to ex­plain that while dissonance between Congress’s legislative and appro­priations powers creates the destructive possibility of disappropriation, it can also preserve for Congress enduring influence (over the executive) and majoritarian control (against the “dead hand” and leadership) that Congress would surrender if it instead exercised both its legislative and appropriations powers permanently.

This insight–that Congress’s ability to legislate permanently but appropriate temporarily makes disappropriation possible but also alters the balance of powers—has theoretical implications for constitutional doctrine, the separation of powers, the design of new legislative commit­ments, and efforts to reduce the harms of disappropriation. The Article’s nor­mative component addresses the regulation and adjudication of disappropriation in light of these implications. It conceptualizes shut­downs as aggregations of distinctive disappropriations and cautions that prior scholarly analyses of proposals to prevent shutdowns by financially penalizing legislators for failing to appropriate funds necessary to honor pre-existing commitments are incomplete because they fail to consider upstream impacts on the balance of powers. And it explains that courts could play a salutary role without interfering with the balance of powers by favoring rules that promote durability but not entrenchment, that is, by adopting rules that tend to reduce the ex ante likelihood of disap­propriation without undermining the credibility of the threat of disap­propriation. In practice, this weighs in favor of judicial approaches that prevent inadvertent disappropriation by reducing uncertainty and pri­vate information. Courts should therefore adopt an interpretive presump­tion against disappropriation, empower civil servants to enforce disap­propriation ex ante rather than empower Congress to do so ex post (as the House of Representatives sought to do in House v. Burwell), and en­deavor to adjudicate actions seeking damages in the aftermath of disap­propriation in ways that make the availability of such damages more predictable while avoiding interference with the political branches.

The full text of this article may be found by clicking the PDF link to the left.


“Here an appropriation is less a grant of money than an act of duty, to which the Constitution, that is, the will of the nation, obliges us. 1 5 Annals of Cong. 699 (1796) (statement of Rep. Murray); see also Zachary S. Price, Funding Restrictions and Separation of Powers, 71 Vand. L. Rev. 357, 382–84 (2018) (extracting passages addressing the “duty” to appropriate from the Jay Treaty debates).

“We need to handle our financial situation. 2 Lin-Manuel Miranda, My Shot, on Hamilton: Original Broadway Cast Recording (Atl. Records 2015).

In recent years, Congress has repeatedly failed to appropriate funds necessary for the government  to  honor  permanent,  statutory  payment  commitments  (or entitlements 3 The term “entitlement” engenders confusion because of the many ways it is used in describing federal programs. See Timothy Stoltzfus Jost, Disentitlement? The Threats Facing Our Public Health Care Programs and a Rights-Based Response 23–46 (2003) (offering four senses of “entitlement” in describing efforts to repeal or limit access to benefit programs); David A. Super, The Political Economy of Entitlement, 104 Colum. L. Rev. 633, 640–58 (2004) [hereinafter Super, Political Economy] (offering a taxonomy of six senses in which the word “entitlement” is used to describe federal programs). In part for this reason, this Article uses the less loaded and more inclusive term “commitment,” differentiating as appropriate in its descriptive and normative parts between legal commitments, subjective commitments, and remediable commitments. See infra section I.D (explaining and identifying points at which the question of whether a commitment is legal, subjective, and/or remediable is relevant in regulating or adjudicating disappropriation). ), thereby forcing the government to break those commitments. 4 The Constitution prevents the federal government from complying with even a direct statutory command to pay unless Congress appropriates the funds. U.S. Const. art. I, § 9, cl. 7 (“No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law . . . .”). Such “disappropriations” 5 See infra section I.D (defining disappropriation as the failure to appropriate funds necessary to honor a government commitment). have been destructive and unfair for frustrated recipients and have undermined the rule of law. More­over, the resulting “contradiction” 6 Ramah Navajo Chapter v. Salazar, 644 F.3d 1054, 1056–57 (10th Cir. 2011). between a statutory command to pay and a constitutional prohibition on expenditures absent “[a]ppropriations made by law” 7 U.S. Const. art. I, § 9, cl. 7. continues to vex the courts. When the government broke its commitment to fund tribal support contracts, tribes were forced to cut back on health care, law enforcement, and education services for decades until ultimately prevailing 5-4 in Salazar v. Ramah Navajo Chapter. 8 567 U.S. 182, 185–88 (2012); see also infra section II.A.1 (discussing tribal support contract disappropriation). When the government failed to honor Affordable Care Act (ACA) 9 Patient Protection and Affordable Care Act, Pub. L. No. 111-148, § 1342, 124 Stat. 119, 211 (2010) (codified at 42 U.S.C. § 18062 (2012)). payment com­mitments—due to what many described as “sabotage”—insurers raised their premiums, left the ACA marketplaces, went bankrupt, and filed scores of lawsuits currently awaiting decision from the Supreme Court. 10 See infra section II.A.2–.3 (describing risk corridors and cost-sharing reductions disappropriations). And government shutdowns in October 2013, January 2018, and Decem­ber 2018–January 2019 have for increasing periods disrupted legal and subjective commitments like food stamps and tax refunds, again spurring a plethora of lawsuits. 11 See Gretchen Frazee & Lisa Desjardins, How the Government Shutdown Compared to Every Other Since 1976, PBS: News Hour (Dec. 26, 2016), https://www.pbs. org/newshour/politics/every-government-shutdown-from-1976-to-now [https://perma.cc/ 5EF3-A3BZ] (last updated Jan 25, 2019); infra section II.A.5 (characterizing shutdowns as numerous and usually staggered component disappropriations).

Despite its immense impact in recent years and the many blockbuster lawsuits it has brought about, the phenomenon of disappropriation of le­gal commitments to pay has not previously been isolated and analyzed in legal scholarship. 12 Section II.B explains that while essential treatments of particular disappropriation controversies exist, such treatments handle those controversies as sui generis and do not consider implications for the separation of powers. E.g., Nicholas Bagley, The Supreme Court Will Hear the Risk Corridor Cases, The Incidental Economist (June 24, 2019), https://theincidentaleconomist.com/wordpress/the-supreme-court-will-hear-the-risk-corridor- cases/ [https://perma.cc/D7X8-LW52] [hereinafter Bagley, Risk Corridor Cases] (provid­ing background about the risk corridors cases, focusing on “what Congress meant when it placed limits on the use of appropriated funds in an effort to sabotage the Affordable Care Act”). This Article closes the gap by documenting and offer­ing a theoretical understanding of this phenomenon, then applying that under­standing to address pressing questions about its regulation and adjudication.

The Article explains disappropriations of legal commitments as only one probabilistic consequence of the overlooked fact that Congress has en­acted scores of payment commitments in permanent law that are dependent for their operation upon periodic temporary appropriations. 13 For recent treatments assuming that entitlements do not depend on periodic, temporary appropriations, see, e.g., John Brooks, Brian Galle & Brendan Maher, Cross-Subsidies: Government’s Hidden Pocketbook, 106 Geo. L.J. 1229, 1269 (2018) [hereinafter Brooks et al., Cross-Subsidies] (describing “entitlements” as “automatically funded” in contrast to “federal programs . . . [that] must be affirmatively provided with funding each year in an annual appropriations bill”); see also John Brooks, Income-Driven Repayment and the Public Financing of Higher Education, 104 Geo. L.J. 229, 252 (2016) [hereinafter Brooks, Income-Driven Repayment] (“[E]ntitlement programs are . . . not dependent on annual appropriations.”). Medicaid and food stamps are examples of such programs, and Medicare and Social Security soon will be as their trust funds become insufficient to cover their liabilities. In creating permanent but temporarily funded com­mitments, Congress has exercised its legislative power to command pay­ment in dissonance with its appropriations power to permit expenditure.

This Article’s core descriptive contribution is that the dissonance between Congress’s legislative power and its appropriations power that creates the risk of disappropriation also preserves an enduring sphere of legislative influence (over executive implementation) and majoritarian control (against the “dead hand” and leadership). These impacts of disso­nance on the balance of powers complicate efforts to reduce the harms of disappropriation. Although the Article explains how disappropriation is destructive and unfair, many reforms to prevent or remedy it would also elim­inate or reduce the underlying dissonance that gives rise to it, thereby recalibrating the balance of powers. This possibility is a reason for hesita­tion about many efforts to reduce the harms of disappropriation, such as by funding all permanent commitments with default appropriations.

Readers could reasonably conclude that disappropriation of legal commitments is so destructive, unfair, and harmful to the rule of law that it should be prevented or even declared unconstitutional regardless of con­sequences for the balance of powers. 14 Such readers may be particularly interested in the question of the constitutionality of dissonance and disappropriation discussed in infra section IV.B. The Article ultimately remains agnostic on such normative and constitutional questions raised by its study of disappropriation, endeavoring instead to flesh out the underlying con­sid­erations and tradeoffs. The insight that dissonance between Congress’s legislative power and its appropriations power not only creates a risk of disappropriation but also preserves an enduring sphere of legislative influence and majoritarian control has important implications for the reg­ulation and adjudication of disappropriation.

For regulation, scholars addressing temporary (so far) mass disap­propriations known as “shutdowns” have failed to recognize or address the dissonance that gives rise to such crises or the implications of that disso­nance for the balance of powers. This has led them to express support for legislative changes along the lines of the recently proposed Stop STUPIDITY Act that seek to make shutdowns less likely in ways that, the Article explains, would unintentionally enhance executive power and entrenchment. 15 See Stop the Shutdowns Transferring Unnecessary Pain and Inflicting Damage in the Coming Years Act, S. 198, 116th Cong. (2019) (proposing to automatically fund the government in the event of shutdown, except executive and legislative salaries); David Kamin, Legislating Crisis, in The Timing of Lawmaking 34, 60 (Frank Fagan & Saul Levmore eds., 2017) (endorsing a financial penalty for legislators in the event of a shutdown as lacking “broader social costs”); David Scott Louk & David Gamage, Preventing Government Shutdowns: Designing Default Rules for Budgets, 86 U. Colo. L. Rev. 181, 252, 255–57 (2015) (exploring a default funding extension in the event of impasse, while penalizing legislator salaries, as a means of preventing shutdowns); see also infra section IV.C (discussing balance-of-powers impacts of such proposals).

For adjudication, courts called upon to adjudicate disappropriation controversies have struggled to resolve the challenging legal questions they present. 16 See Nat’l Treasury Emps. Union v. United States, No. 19-50 (RJL), 2019 WL 266381, at *1 (D.D.C. Jan. 18, 2019) (refusing to consider the merits of a request by federal employees for an emergency nationwide injunction mandating compliance with the Anti-Deficiency Act or salary payments, despite the lack of appropriations associated with a “shutdown,” in part because “the shutdown is a political problem”); California v. Trump, 267 F. Supp. 3d 1119, 1140 (N.D. Cal. 2017) (considering but, after application of a balancing test, rejecting a request for an emergency nationwide injunction mandating payments despite the executive’s assertion of lack of appropriated funds); U.S. House of Representatives v. Burwell, 185 F. Supp. 3d 165, 188 (D.D.C. 2016) (refusing the government’s request for deference in determining the availability of funding to honor its commitment and applying the rule of strict interpretation); U.S. House of Representatives v. Burwell, 130 F. Supp. 3d 53, 81 (D.D.C. 2015) (holding that the House had standing as a body to sue to enforce the Appropriations Clause against allegedly ultra vires spending to honor a statutory commitment); see also infra section V.B (elaborating upon and suggesting resolutions to legal questions). Compare Salazar v. Ramah Navajo Chapter, 567 U.S. 182, 194 (2012) (holding that tribes were entitled to damages for the government’s breach of its commitment to pay despite the appropriation of insufficient funds to honor the commitment), and Moda Health Plan, Inc. v. United States, 892 F.3d 1311, 1340 (Fed. Cir. 2018) (Newman, J., dissenting) (reasoning that insurers should be entitled to damages for the government’s breach), with Ramah Navajo Chapter, 567 U.S. at 201–02 (Roberts, C.J., dissenting) (reasoning that the appropriation of insufficient funds should have precluded a damages remedy), and Moda Health Plan, 892 F.3d at 1330–31 (holding that the appropriation of insufficient funds precluded a damages remedy for the commitment). Consideration of ex ante impacts on the likelihood of disap­propriation and on the balance of powers reveals  that  judicial  approaches  to  date  have been unhelpful and counterproductive. 17 See infra section V.B (expressing skepticism about the role of courts in disappropriation controversies). Such consideration also reveals that courts could play a salutary role by favoring rules that reduce the ex ante likelihood of disappropriation without significantly inter­fering with the balance of powers. This counsels in favor of judicial approaches that prevent inadvertent disappropriation by reducing uncer­tainty and private information about the predicted consequences of a po­ten­tial disappropriation. 18 See infra section IV.D. This Article therefore recommends that courts (1) adopt an interpretive presumption against disappropriation of clear legal commitments rather than the deference sought by the executive or the pro-disappropriation presumption employed by the court in United States House of Representatives v. Burwell; 19 185 F. Supp. 3d 165. (2) empower civil servants rather than Congress to enforce disappropriation; (3) reject the nationwide pre­liminary injunction remedy sought by several states in California v. Trump in favor of expedited, but final, declaratory relief; and (4) adjudicate claims for damages without arbitrarily privileging fact-intensive categories of com­mitments (like “contracts”) and without considering the scorekeeping choices of the political branches.

Two metaphors illustrate the relationship between disappropriation, dissonance, and the balance of powers. It might be tempting to think of disappropriation—whether in the form of shutdowns, lapses, shortfalls, breaches, or otherwise—as a “symptom” and dissonance between the leg­islative powers to commit to pay (exercised permanently) and to permit payment (exercised temporarily) as the “disease” to be eradicated. This would counsel in favor of default rules that make shutdowns impossible or painless, permanent appropriations to fund any new entitlements and elim­inate the risk of disruption, and expansive judicial remedies that compensate disappointed recipients fully for the costs to them of broken gov­ernment commitments caused by lack of appropriations. But that metaphor is inappropriate because it ignores the potentially salutary effects of dissonance that arise from the threat of disappropriation regard­less of whether disappropriation occurs.

The more appropriate metaphor is that between fission, nuclear power (harnessed through fission), hazardous waste (a cost always asso­ciated with fission), and a meltdown (a rare but profound harm risked by generating power through fission). By splitting its purse powers of commitment and appropriation, Congress derives a unique form of enduring influence connected to the threat of disappropriation (the “fission” and “nuclear power” in this metaphor), but doing so entails disparate impacts and inevitable costs for privatization and federalism asso­ciated with the mere possibility of disappropriation (the hazardous waste) and may lead to cataclysm if disappropriation actually results (the melt­down). In other words, careful calibration is necessary if the goal is to pre­serve the power source (the threat of disappropriation associated with dis­sonance) while preventing the worst consequences (actual disappropriation).

This Article proceeds in five parts. Part I begins by explaining the Article’s functional understanding of the “powers of the purse,” under which appropriations are not themselves a singular formal “purse power,” but a mechanism for controlling just one of several means of financial in­ducement at the disposal of the modern administrative state. It then introduces the other such means that make up the federal “bundle of carrots,” highlighting the executive and legislative commitment powers, and explains the pervasiveness of legal commitments to pay that depend on temporary appropriations in the modern welfare state. Finally, it de­fines “disappropriation” broadly as the failure to enact appropriations necessary to honor a government commitment, whether for payment or conduct, legal or subjective.

Part II describes the emergence of disappropriation in several recent headline-dominating controversies including shutdowns, ACA sabotage, tribal support costs, and the CHIP lapse. 20 See, e.g., Amy Goldstein, Short-Term Spending Agreement Provides Longer-Term Relief for CHIP, Wash. Post (Jan. 22, 2018), https://www.washingtonpost.com/national/ health-science/short-term-spending-agreement-provides-longer-term-relief-for-chip/2018/ 01/22/b993369a-ff9e-11e7-8acf-ad2991367d9d_story.html (on file with the Columbia Law Review) (describing the CHIP lapse); Kristina Peterson, Michael C. Bender & Rebecca Ballhaus, Shutdown Breaks Record for Longest in Modern History, Wall St. J. (Jan. 13, 2019), https://www.wsj.com/articles/trump-plays-down-emergency-option-to-get-wall-funding- 11547238564 (on file with the Columbia Law Review) (describing the 2018–2019 government shutdown); Sheryl Gay Stolberg & Thomas Kaplan, Democrats Outline Demands as Threat of Shutdown Looms, N.Y. Times (Jan. 2, 2018), https://www.nytimes.com/2018/01/02/ us/politics/senate-democrats-government-shutdown-immigration.html [https://perma.cc/ WH5E-AP7Y] (describing the lead-up to the 2018 shutdown). And it identifies the need for and lack of theoretical understanding of disappropriations and the disso­nance between Congress’s legislative power to commit to pay and its appropria­tions power to permit payment that gives rise to disappropriations.

Part III unpacks the consequences of dissonance between legislative commitments to pay and legislative appropriations. Dissonance is plainly a cause of disappropriations. When disappropriations materialize, they un­fairly harm recipients, undermine the rule of law, can shift blame from the legislature to the executive and courts, and can confer added discretion on the executive. Dissonance also creates a probability of disappropria­tion, which carries its own costs for privatization and cooperative federal­ism whether disappropriation happens or not. But dissonance also creates the threat of disappropriation, which reduces entrenchment, can increase legislative influence, and recalibrates the intrabranch balance of power with­in Congress between leadership and the rank-and-file.

Part IV explores implications of the insights that disappropriation arises from Congress’s decision to exercise its legislative power to commit to pay and its appropriations power to permit payment in dissonance with one another, and that by doing so it can preserve majoritarian control and legislative influence. This Part raises and positions questions for constitu­tional doctrine, the separation of powers, the design of federal commit­ments such as new entitlements, and efforts to reduce the harms of disap­propriation. And it explains that approving scholarly analyses of penalty default proposals to prevent shutdowns are incomplete because they fail to consider the impact of such proposals on the balance of powers.

Part V addresses applications for courts called upon to adjudicate disappropriation controversies. To date, disappropriation debates in Congress have played out like a game of chicken in the fog; 21 Thanks to David Kamin for this metaphor. neither “side” is really able to judge when it has reached the point of no return or the impacts of collision due to uncertainty about what courts and the ex­ecutive would do and when they would do it, among other things. Part V counsels in favor of judicial approaches to questions of interpretation, enforcement, and remedies that lift the fog, that is, make it easier for the legislature and the executive to predict whether any particular action or inaction will effect a disappropriation and, if so, what the consequences of that disappropriation will be. Finally, a brief concluding section summa­rizes the Article’s contribution.