The Appropriations Clause

No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law; and a regular Statement and Account of the Receipts and Expenditures of all public Money shall be published from time to time.

—Thomas G. Hungar & Michael D. Bopp

Introduction

The Appropriations Clause is the cornerstone of Congress’s “power of the purse.” It assigns to Congress the role of final arbiter of the use of public funds, providing Congress with a mechanism to control or limit spending by the federal government. The clause also requires Congress to publish a statement of expenditures from “time to time.” Throughout history, Congress and the executive branch have often disagreed about restrictions placed on expenditures. Generally, the courts have deferred to Congress’s appropriations power.

History Before 1787

The Framers of the Constitution were not the first to grapple with control of government spending. Parliamentary supremacy over public funding had been established in Britain after the Glorious Revolution. The English Bill of Rights of 1689 affirmed that “levying money for or to the use of the Crown by pretence of prerogative, without grant of Parliament . . . is illegal.”¹

Revolution-era state constitutions embraced legislative control of spending.² The Articles of Confederation granted the Confederation Congress the power to “appropriate and apply” public funds for “defraying the public expenses.”³

The Constitutional Convention

The Appropriations Clause first appeared at the Constitutional Convention as part of a proposed division of authority between the House of Representatives and the Senate. A part of that proposal declared that all bills raising or appropriating money—“money bills”—were to originate in the House and were not subject to alteration or amendment in the Senate. Further, no money could be drawn from the “public Treasury, but in Pursuance of Appropriations that shall originate in the House of Representatives.”⁴ The Convention rejected both the provision vesting exclusive control of money bills in the House and the associated appropriations clause.⁵

Late in the Convention, the Committee of Eleven, appointed to consider unresolved parts of the Constitution, offered a compromise to permit the Senate to amend or concur in amendments of money bills, provided that “[n]o Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law.”⁶ The Convention incorporated the proposal, which became the final language of the first part of the Appropriations Clause, with only minor changes made by the Committee of Style.⁷ The Convention also adopted the Origination Clause in Article I, Section 7, Clause 1, which required that bills that raised revenue must originate in the House but allowed those bills to be altered by the Senate.⁸ (See Essay No. 35.)

The second part of the Appropriations Clause requires Congress to publish a statement of expenditures. This provision stemmed from an amendment offered by George Mason of Virginia in the final days of the Convention. Mason proposed that “an Account of the public expenditures should be annually published.”⁹ The Convention relaxed this requirement to “from time to time” and adopted it.¹⁰

The placement and phraseology of the Appropriations Clause are significant. The Framers chose the language of limitation, not authorization, for the part of the clause addressing Congress’s authority over spending. In other words, the clause did not empower Congress to spend money, but rather limited how money could be spent. In particular, the clause prevents federal funds from being spent without prior appropriations legislation passed by Congress.

Moreover, the Framers inserted the Appropriations Clause in Section 9 of Article I, which includes other restrictions on the federal government’s actions. The Appropriations Clause was not placed in Section 8 of Article I, which grants Congress powers. As one scholar has explained, “a primary significance” of the clause “lies in what it takes away from Congress: the option not to require legislative appropriations prior to expenditure.”¹¹ Congress’s affirmative power to spend does not derive from the Appropriations Clause; rather, it likely derives from the Necessary and Proper Clause.¹² (See Essay Nos. 40 and 66.) The U.S. Supreme Court has observed that the “phrasing and location” of the Appropriations Clause “in the Constitution make clear that it is not itself the source of” Congress’s power of the purse, but rather “is phrased as a limitation.”¹³

The Ratification Debates

In Federalist No. 58, James Madison emphasized the centrality of the power of the purse, which he characterized as “the most compleat and effectual weapon with which any constitution can arm the immediate representatives of the people, for obtaining a redress of every grievance, and for carrying into effect every just and salutary measure.”¹⁴

At the New York ratifying convention, Alexander Hamilton assured the delegates that “where the purse is lodged in one branch, and the sword in another, there can be no danger.”¹⁵ John McHenry made a similar point when introducing the Constitution to the Maryland House of Delegates: “[T]here can be no regulation more consistent with the Spirit of Economy and free Government” than the Appropriations Clause.¹⁶

During the Virginia convention, Patrick Henry and George Mason—both opponents of ratification—criticized the “Statement and Account” provision. They charged that the requirement for publication only “from time to time” meant that, in practice, Congress could shroud public spending in perpetual secrecy.¹⁷

Even after ratification, Madison’s and Hamilton’s arguments endured. Justice Joseph Story, for example, described Congress’s appropriations power as an important means of self-protection for the legislature. Congress, he explained, has “a controlling influence over the executive power, since it holds at its own command all the resources by which a chief magistrate could make himself formidable.” Congress’s power to “grant or withhold supplies . . . can unnerve the power of the sword by striking down the arm which wields it.”¹⁸

Early Practice

Appropriations practice was unsettled in the early years after the Constitution was ratified.¹⁹ Federalists, such as Treasury Secretary Alexander Hamilton, argued for lump-sum appropriations and broad executive discretion. The nation’s first appropriations bill, which reflected Hamilton’s influence, was a single paragraph long.²⁰ Meanwhile, Republicans pressed for greater congressional control and itemization. This period also saw the first example of impoundment. Under this practice, the President refuses to spend money already appropriated by Congress. In 1803, for example, President Thomas Jefferson declined to spend funds appropriated for naval vessels.²¹

Congressional and Executive Branch Practice

Since the founding era, Congress has moved to strengthen its control of the appropriations process.²² In 1809, Congress mandated that appropriations “shall be solely applied to the objects for which they are respectively appropriated.”²³

In 1849, Congress enacted the Miscellaneous Receipts Statute. This law required all funds received “for the use of the United States” to be paid into the Treasury. As a result, and with certain exceptions, the Executive could not circumvent Congress—for example, by routing federal receipts directly to the agencies that collected them without the need for intervening appropriation by Congress.²⁴ The Anti-Deficiency Act, a series of measures passed between 1870 and 1905, bars federal agencies from spending in excess of currently available appropriations.²⁵ Finally, the Impoundment Control Act of 1974 generally prohibits the President from unilaterally refusing to spend appropriated funds.²⁶

Presidents of both parties have pushed back against congressional authority over appropriations, seeking to withhold, transfer, or condition funds for topics as varied as border security, health care, and foreign assistance.²⁷ Some scholarship has questioned the traditional assumption of congressional supremacy over spending, arguing for a greater presidential role.²⁸

The executive branch has routinely objected to, and sometimes even disregarded, some funding restrictions set by Congress, citing separation of powers principles.²⁹ These contested restrictions generally concern issues like national security or foreign policy that are thought to be core executive prerogatives. For example, some within the Reagan Administration worked to circumvent congressional restrictions on funding the Nicaraguan Contra rebels. The Obama Administration arguably failed to comply with a funding restriction requiring notice to Congress for the transfer of detainees from Guantanamo Bay.³⁰ A federal court also ruled that the Obama Administration violated the Appropriations Clause by spending money on a program created by the Administration’s health care reform law without congressional appropriation.³¹

The first Trump Administration criticized the Impoundment Control Act as “unworkable in practice” and argued that it should be “significantly reformed or repealed” because it unduly infringed on executive branch prerogatives.³² The Trump Administration also diverted appropriations from various other funds for construction of a border wall, prompting inconclusive litigation.³³ The Biden Administration rescinded the diversion of funds for border wall funding and temporarily “paused” the obligation of such funding even when specifically appropriated by Congress—a practice it defended as a “programmatic delay” consistent with the Impoundment Control Act.³⁴

The appropriations power, like all of Congress’s powers, is subject to the Bill of Rights and other structural constraints in the Constitution.³⁵ Congress may not, for example, subject named individuals to unconstitutional bills of attainder under the guise of appropriations.³⁶ (See Essay No. 70.) Furthermore, Congress may not abridge an individual’s First Amendment rights through appropriations.³⁷ (See Essay No. 161.)

There also are important interplays between the appropriations power and the pardon power. (See Essay No. 105.) First, a presidential pardon may not authorize payment of a claim out of the Treasury barred by an act of Congress.³⁸ Second, a presidential pardon may not permit the recovery of the proceeds of confiscated property deposited in the Treasury.³⁹ And third, Congress cannot, through an appropriations rider, impair the power of the President to grant pardons.⁴⁰

Judicial Precedent

The courts have recognized the primacy given to Congress by the Appropriations Clause in allocating the resources of the Treasury. Cincinnati Soap Co. v. United States (1937) declared that the Appropriations Clause “was intended as a restriction upon the disbursing authority of the Executive department” and means simply that “no money can be paid out of the Treasury unless it has been appropriated by an act of Congress.”⁴¹ United States v. MacCollom (1976) articulated an “established rule” that “the expenditure of public funds is proper only when authorized by Congress, not that public funds may be expended unless prohibited by Congress.”⁴² Moreover, “Congress has a plenary power to exact any reporting and accounting it considers appropriate in the public interest.”⁴³

The judiciary lacks the power to order the obligation or payment of funds for which there are no appropriations.⁴⁴ Courts may not order an appropriation,⁴⁵ and private litigants may not use principles of estoppel to require the payment of benefits for which there is no appropriation.⁴⁶ Congress has “wide discretion in . . . prescribing details of expenditures”⁴⁷ and has a long and consistent practice of setting conditions on the expenditure of appropriations.

CFPB v. CFSAA (2024) upheld a statutory scheme whereby the Consumer Financial Protection Bureau (CFPB), a powerful regulatory agency, funds itself through an annual requisition from the Federal Reserve without further congressional involvement.⁴⁸ The Court noted that “[b]y the time of the Constitutional Convention, the principle of legislative supremacy over fiscal matters engendered little debate and created no disagreement.” Based on a survey of history, the Court “conclude[d] that appropriations need only identify a source of public funds and authorize the expenditure of those funds for designated purposes to satisfy the Appropriations Clause.”⁴⁹

Open Questions

• Although modern practice recognizes the primacy of Congress over the public fisc, the precise contours of the Appropriations Clause continue to be refined.
• Does an individual house of Congress have standing to sue over alleged violations of the Appropriations Clause? Would both houses acting jointly? This issue remains unclear, although some courts have ruled in favor of the House of Representatives.⁵⁰
• The Judgment Fund provides for the automatic payment of most settlements and judgments against the federal government and pays out billions of dollars each year without congressional review.⁵¹ Concerns have been raised regarding transparency and executive branch abuse in the administration of this fund.⁵² The availability of the Judgment Fund can have significant fiscal and policy consequences. For example, the Supreme Court has held that when a statute provides that the federal government “shall pay” the beneficiaries of a health care program but Congress has not specifically appropriated any money to do so, the government still owes the unpaid sums, which may be paid out of the Judgment Fund upon suit.⁵³ Concerns have also been raised that the use of the Judgment Fund rather than agency budgets to pay plaintiffs’ legal expenses in suits against government agencies may incentivize “sue and settle” behavior in which interest groups sue agencies to force regulatory changes via settlement.⁵⁴
• To what extent, if at all, may the President unilaterally refuse to spend money appropriated by Congress? Does the Impoundment Control Act, which prevents the President from doing so, infringe on the President’s constitutional authority, or instead merely implement Congress’s plenary authority over the expenditure of federal funds?

1. 1 W. & M., ch. 2, sess. 2 (1688) (Eng.). ↩︎
2. Del. Const. of 1776, art. VII; Mass. Const. of 1780, ch. 2, § 1, art. XI; Md. Const. of 1776, arts. X–XI. ↩︎
3. Articles of Confederation, art. IX, § 5. ↩︎
4. 2 Farrand’s 154, 164. ↩︎
5. Id. at 280. ↩︎
6. Id. at 508–10. ↩︎
7. Id. at 568, 596, 657. ↩︎
8. Id. at 552. ↩︎
9. Id. at 618–19. ↩︎
10. Id. ↩︎
11. Kate Stith, Congress’ Power of the Purse, 97 Yale L.J. 1343, 1349 (1988). ↩︎
12. Id. at 1348–49. ↩︎
13. CFPB v. Cmty. Fin. Servs. Ass’n of Am., Ltd., 601 U.S. 416, 438 (2024). ↩︎
14. Federalist No. 58 (Madison). ↩︎
15. 2 Elliot’s 349. ↩︎
16. 3 Farrand’s 149–50. ↩︎
17. Id. at 326; Storing 5.16.8. ↩︎
18. 3 Story’s Commentaries § 531. ↩︎
19. Gerhard Casper, Appropriations of Power, 13 U. Ark. Little Rock L.J. 1, 9–21 (1990); Gillian E. Metzger, Taking Appropriations Seriously, 121 Colum. L. Rev. 1075, 1087 (2021); J. Gregory Sidak, The President’s Power of the Purse, 1989 Duke L.J. 1162, 1177–83 (1989). ↩︎
20. Act of Sept. 29, 1789, 1 Stat. 95. ↩︎
21. Zachary S. Price, Funding Restrictions and Separation of Powers, 71 Vand. L. Rev. 357, 434 (2018). ↩︎
22. Casper, supra at 21; Metzger, supra at 1088–89; Stith, supra at 1363–77. ↩︎
23. Act of Mar. 3, 1809, 2 Stat. 535. ↩︎
24. Act of Mar. 3, 1849, 9 Stat. 398 (now codified at 31 U.S.C. § 3302(b)); Stith, supra at 1365. ↩︎
25. 31 U.S.C. § 1341. ↩︎
26. 2 U.S.C. §§ 682–88. ↩︎
27. Metzger, supra at 1077–80, 1092–1103. ↩︎
28. Sidak, supra at 1183–1202. ↩︎
29. Price, supra at 373–78. ↩︎
30. Id. at 374–75. ↩︎
31. U.S. House of Representatives v. Burwell, 185 F. Supp. 3d 165, 174–88 (D.D.C. 2016), injunction vacated pursuant to parties’ settlement, 2018 WL 8576647 (D.D.C. May 17, 2018). ↩︎
32. Letter from Russell T. Vought, Director, Off, of Mgmt. and Budget, to John Yarmuth, Chairman, H. Comm. on the Budget (Jan. 19, 2021), https://perma.cc/2WGM-84H6. ↩︎
33. Sierra Club v. Trump, 977 F.3d 853 (9th Cir. 2020), judgment vacated, 142 S.Ct. 56 (2021). ↩︎
34. Letter from Samuel R. Bagenstos, Gen. Counsel, Off. of Mgmt. and Budget, to Thomas M. Armstrong, Gen. Counsel, Gov’t Accountability Off. (May 6, 2021), https://perma.cc/6W54-4PNB; GAO, Off. of Mgmt. and Budget and U.S. Dep’t of Homeland Sec.—Pause of Border Barrier Construction and Obligations, B-33310 (June 15, 2021), available at https://perma.cc/Y57N-U2JC. ↩︎
35. Stith, supra at 1350–51. ↩︎
36. United States v. Lovett, 328 U.S. 303, 315–18 (1946). ↩︎
37. Legal Serv. Corp. v. Velazquez, 531 U.S. 533, 548–49 (2001). ↩︎
38. Hart v. United States, 118 U.S. 62, 65–67 (1886). ↩︎
39. Knote v. United States, 95 U.S. 149, 154–57 (1877). ↩︎
40. United States v. Klein, 80 U.S. 128, 147–48 (1871). ↩︎
41. 301 U.S. 308, 321 (1937). ↩︎
42. 426 U.S. 317, 321 (1976). ↩︎
43. United States v. Richardson, 418 U.S. 166, 178 n.11 (1974). ↩︎
44. Reeside v. Walker, 52 U.S. 272, 291 (1850). ↩︎
45. Rochester Pure Water Dist. v. EPA, 960 F.2d 180, 184 (D.C. Cir. 1992). ↩︎
46. Office of Pers. Mgmt., 496 U.S. at 433. ↩︎
47. Cincinnati Soap Co., 301 U.S. at 321. ↩︎
48. CFPB v. Cmty. Fin. Servs. Ass’n of Am., Ltd., 601 U.S. 416 (2024). ↩︎
49. Id. at 426, 431. ↩︎
50. U.S. House of Representatives v. Mnuchin, 976 F.3d 1, 6–15 (D.C. Cir. 2020), vacated as moot sub nom. Yellin v. U.S. House of Representatives, 142 S.Ct. 332 (2021); Burwell, 130 F. Supp. 3d at 66–77. ↩︎
51. Paul F. Figley, The Judgment Fund: America’s Deepest Pocket & Its Susceptibility to Executive Branch Misuse, 18 U. Pa. J. Const. L. 145, 147, 161–67, 179–207 (2015). ↩︎
52. Id. at 179–211; Paul Larkin, Jr. & Zack Smith, “Brother, Can You Spare a Million Dollars?”: Resurrecting the Justice Department’s “Slush Fund,” 19 Geo. J.L. & Pub. Pol’y 44 (2021). ↩︎
53. Maine Cmty. Health Options v. United States, 590 U.S. 296, 305–25 (2020). ↩︎
54. Figley, supra at 174–75, 186–89. ↩︎