The Crisis of Appropriations Law

Document Type

Article

Publication Date

2026

Abstract

Appropriations law is a unique body of federal law. Appropriations law imposes its own somewhat baroque set of statutory interpretation principles, approves of very broad delegations to the Executive Branch without meaningful limiting principles, and is often exempt from judicial review. But perhaps that is all about to change. Donald Trump’s historically aggressive challenge to Congress’s power of the purse has spurred an unusually large volume of exceptionally high-stakes appropriations law litigation.

The potential implications go beyond the high-profile issues such as enforcement of the Impoundment Control Act. In general, the unusual features of appropriations law are built on a particular vision of interbranch relations. In that vision, it is the annual appropriations process, bolstered by ongoing congressional oversight, that is the principal check on the Executive Branch: The Constitution gives Congress the power of the purse, it gives Congress the tools to enforce that power, and Congress can be expected to use those tools. Judicial enforcement is thus largely unnecessary. Rather, the Executive Branch has an incentive to create a robust internal system of enforcing the expectations that congressional appropriators had when they adopted the relevant spending legislation. Many of the unusual features of appropriations law can be well understood as implementing that robust internal system.

The first Trump Administration put pressure on the vision of interbranch relations on which so much of appropriations law is premised. The impoundment of security assistance funds intended for Ukraine is only the most notable example. But the second Trump Administration has gone significantly farther. The administration has engaged in impoundment on a massive scale. It has refused to comply with the apportionment transparency law Congress passed in the wake of the Ukraine scandal. And much more. Although GAO has begun to issue opinions finding the administration in violation of appropriations laws, congressional appropriators have generally remained passive in the face of Trump’s actions.

The vision of interbranch relations that underlies appropriations law doctrine seems to be breaking down before our eyes. The Executive Branch is abandoning its robust system of internal checks. And Congress does not seem to be enforcing its power of the purse through oversight and the annual appropriations process. It is thus sensible to consider whether these changes in the world should spur changes in the law.

Many will argue that the right response is to expand the judicial role. There may well be a place for expanded judicial review, especially in this moment of crisis, but the courts are unlikely to be the solution. That is in part because many of the most significant appropriations law questions will not present an Article III case or controversy. And it is in part because judicial formalism is not well suited to resolving the merits of appropriations disputes, which involve complex and evolving situations where there’s a need for flexibility and mutual accommodation between the branches. The best solution would be for Congress to take steps to reclaim its power.

After elaborating on the analysis discussed above, this article will identify some steps Congress could take, ranging from the simple to the complex. The article will offer the most robust case in modern scholarship for political, rather than judicial, enforcement of appropriations law.

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