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The Very First Appropriations Bill Enacted by Congress
Andrew Hyman

There’s currently a debate about whether statutes and/or the Constitution presently allow (or should allow) the President to sometimes move appropriated funds from one pigeonhole to another, for example by declaring an “emergency.”  Mike Ramsey has recently discussed some of the legal ramifications here and here at this blog.  Right now, there are over thirty ongoing declared national emergencies.    Steve Vladeck has a nice summary of the legal kerfuffle at the NBC News website, dated January 24, 2019 in which he suggests it’s constitutional and lawful, but also suggesting that Congress ought to  write legislation sunsetting emergencies so they do not drag on for years or even decades without congressional assent. 

On the subject of appropriations, the Constitution gives Congress power to “raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years.”  Moreover, “No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law....”    The current debate seems not so much about emergencies or border security, as it is about how specific Congress must be about its appropriations.  If Congress can constitutionally give a lump sum to the President each year for each department, then it seems very likely that Congress can give the President a sum of money for a tiny line item along with discretion to use it for a different line item within the same department. 

I want to do a little show and tell now, by displaying the very first appropriations bill enacted by Congress:  

That there be appropriated for the service of the present year the following sums, viz. A sum not exceeding $216,000 for defraying the expenses of the civil list, under the late and present Government; a sum not exceeding $137,000 for defraying the expenses of the Department of War; a sum not exceeding $190,000 for discharging the warrants issued by the late Board of Treasury, and remaining unsatisfied; and a sum not exceeding $96,000 for paying the pensions to invalids.

Here’s what the New York Times has said about this old statute: “That's it. Roughly one-third for the Federal payroll, another third for war and its veterans, and - believe it or not - a third for paying off debt. No tricky formulas, no extraneous amendments, and in that smaller, simpler America, no need for a deficit debate.”    Because this early statute lacked specificity, and because the Constitution’s  language about appropriations also lacks specificity, it seems unlikely to me that Congress must use enough specificity to virtually eliminate discretion from the president as to spending, including spending on purported emergencies.