A Not-So-Brief Lecture On Federal Appropriations Law

With the current impasse in the Congress and all the talk of the shutdown of the Federal Government, this maven has noticed a great deal of confusion about what this all means. So as a public service I will provide the following information on the one area in which I am truly a maven:

1. The Constitution provides that no funds may be drawn from the Treasury except under authority of appropriations made by law. Clearly, this means that without an appropriation payments may not be made by the United States government. However, beginning early in our nation’s history, appropriations have been viewed as providing two authorities. First is the authority of agencies to enter into legal obligations binding on the government. This authority is generally referred to as budget authority. Second is the authority of government disbursing officers to pay money out of the treasury to satisfy the obligations made by agencies.

2. When the head of an agency permits his/her employees to perform work for the government, s/he necessarily incurs an obligation to pay those employees for the time they work. Thus in order for the head of an agency to allow employees to work there must be budget authority available that permits the obligation. Heads of agencies have no authority to accept voluntary services.

3. The budget authority contained in appropriations acts are of three types:

a. One-year: this authority is available for obligation only in the fiscal year for which it is enacted;
b. Multiple-year: this authority is available for obligation for a period greater than one year as specified in the appropriation act itself;
c. No-year: this authority is available indefinitely until the agency uses it.

4. Budget authority is also provided in permanent appropriations. These are provisions of law that authorize agencies to incur obligations and that remain in effect until the Congress repeals or modifies them. Permanent appropriations are generally provided for what are referred to as direct-spending or entitlement programs.

5. If the budget authority under which an agency operates expires, i.e., it is no longer available for obligation, the head of the agency must immediately begin the orderly shutdown of the agency. The head of the agency has implicit authority to incur obligations for the purpose of shutdown but for no other purposes. Only those employees who are necessary to carry out the shutdown are permitted to come to work, and they are only permitted to work on shutting down the agency.

6. Legal opinions issued by the Justice Department have held that the President of the United States has implicit authority under the Constitution to incur obligations even in the absence of budget authority. Thus, for example, even without an appropriation for the Department of Defense, the president may authorize the United States military to continue to operate. Likewise, the president may authorize guards at federal prisons to continue to work even in the absence of an appropriation for the Bureau of Prisons. These and others are considered essential executive functions. However, even though the president can authorize these government employees to come to work, they cannot be paid for this work until the Congress enacts appropriations to pay them.

7. There is likewise implicit constitutional authority in other branches of government to incur obligations in the absence of appropriations. For example, senators and representatives must be able to continue to work in the absence of appropriations to pay them. This authority is a logical necessity. If the Congress could not operate in the absence of appropriations, it could never meet to enact appropriations. The result would be a permanent shut down of the United States Government. (I will not comment on whether this would be good or bad.)

Okay, so where does this leave us in the event that the Congress is unable to agree on appropriations to continue the government beyond tomorrow night?

A. Agencies and programs that are funded by permanent, no-year or multiple-year appropriations can continue to operate. They have budget authority and have no need to shut down. Further, the obligations they incur, including those for salaries and benefits of their employees may be paid without further action of the Congress.

B. Agencies and programs funded by one-year appropriations that are covered by the expiring continuing resolution must be shut down. Heads of those agencies may only permit those employees who are involved in shutting down the agency to come to work. All other employees must be furloughed. Those employees who come to work may be paid only when the Congress enacts appropriations for that purpose. Furloughed employees may be paid if the Congress so provides by law.

C. Agencies and programs which the president determines are necessary to fulfill his constitutional authority may continue to operate. Obligations incurred by those agencies, including obligations to pay their employees, may not be paid until the Congress enacts an appropriation to pay them.

D. Representatives and senators may continue to incur obligations necessary to allow them to enact appropriations to restore the operations of government. This includes the authority to allow staffers to come to work for the purpose of enacting those appropriations. Obligations incurred by the Congress, including salaries and benefits for representatives, senators and their staffs, may not be paid until appropriations are enacted to pay for them.

So now you have it. Everything you never wanted to know about federal appropriations law. Will the government shut down tomorrow night. Don’t ask me! Go to your favorite physic.

Will Dems Take Their Eyes Off The Ball?

Yesterday, former Governor Tim Kaine announced that he would be running for the Senate seat that Jim Webb will be vacating at the end of 2012. Zillions of Virginia Democrats let out a yell of relief and pledged to get Kaine elected. The election to fill Webb’s Senate seat will be held November 6, 2012.

Earlier in the week, President Barack Obama announced that he will be running for reelection. Zillions of Virginia Democrats let out a yell of relief and pledged to get Obama reelected. The election for president will be held November 6, 2012.

It is a fact of Virginia politics that we have elections every year. In even-number years, just like the rest of the country, we elect federal officials—the president, senators and representatives. In odd-number years we elect state officials—the governor, lieutenant governor, attorney general and members of the General Assembly. I don’t know whether it is good or bad that we have elections every year, but it is a fact. That means that the next Election Day in Virginia will be November 8, 2011, a full year before Mr. Obama and Mr. Kaine will be on the ballot (assuming they are on the ballot).

Running for office these days requires lots of money and lots of volunteers. So the new campaigns of Mr. Obama and Mr. Kaine will, in the days and weeks to come, be seeking donations and people to work on their campaigns. I assume that there are probably enough political dollars and political volunteers in Virginia to allow both Mr. Obama and Mr. Kaine to run effective campaigns.

The election that Mr. Obama and Mr. Kaine are concerned about will take place in 2012. However, the launching of their campaigns now will inevitably divert the attention of voters from this year’s state elections. It will also draw away both money and people power from the campaigns of state senators and delegates running for (re)election this year.

Just after the 2008 election, this maven expressed concern about the ability of Democrats to maintain their momentum and win the 2009 state-wide elections. Dems Heading For A Big Fall? I expressed my concern in these words:

“So why is the maven so discouraged when everybody else is so upbeat? For one thing, I am trying to avoid complacency. It is vital that Virginia Democrats not get into the mindset that the Commonwealth will become a permanently blue state by means of some inevitable historical development. That will not happen. Nothing is inevitable. Virginia will become a blue state only if lots of people put in the kind of time and effort they did this year to get Obama and Warner elected.”

I also pointed out that the Republicans were already mobilized and determined to win the 2009 elections. Unfortunately, I was right. For Democrats the 2009 Virginia elections were a disaster.

Because of our losses in both 2009 and 2010 the question for Democrats this year will not be how to turn Virginia permanently blue. Rather the question is how to avoid Virginia becoming a solidly red state with the agendas of McDonnell, Cuccinelli and the Republican majority in the House of Delegates becoming the laws of the Commonwealth. This year it is absolutely essential that Democrats maintain control of the state senate and increase their majority there. It is also essential that we capture seats in the House of Delegates by retiring some of those ultra right wing delegates who tried to impose their Neanderthal philosophies on the rest of us.

I am concerned that it will be very difficult to push Obama and Kaine temporarily to the background and keep our eyes only on this year’s prize. It will be difficult to raise money for local races because donations will be gravitating to the Obama and Kaine campaigns. It will be difficult to get volunteers for the local races because people who want to work for good government will be jumping into the presidential and senate campaigns. It will be very easy to take our eyes off the ball and drop it.

So if you’re really enthused about the Obama and/or Kaine campaigns, you need to curb your enthusiasm for now. We have far more pressing needs. Find yourself a local Democratic senator or delegate and volunteer either your time or money for their campaigns. If you live in either a senate or house district in which the incumbent is a Republican, contact your local Democratic committee to see how you can help with the 2011 campaign. (Click here to find your local committee). If you are concerned that this will hurt the Obama or Kaine campaigns, don’t be. Any work you do for democratic state candidates this year will benefit both Obama and Kaine in 2012. On November 9 of this year switch your efforts to those campaigns.

So, trusted reader, if you are a Democratic or if your political philosophy leans in the direction of those of President Obama and Governor Kaine, get out there and make your maven proud. Electing Democrats this year will make it so much easier to elect Obama and Kaine next year. We cannot afford to drop the ball.