Article I, Section 9, Clause 7:

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.

The Supreme Court has construed the Appropriations Clause in relatively few cases, concluding that the requirement for an “appropriation made by law” to prohibit conduct that would result in disbursements of public funds for which an appropriation was lacking. The Court has explained in cases involving the claims of private parties, for example, that a judgment requiring payment to a person asserting a claim against the United States could not be entered in that person’s favor without an appropriation to pay the judgment.1 In Knote v. United States, the Court decided that an appropriation would likewise be needed for a court to order the return of the proceeds of seized property that had been paid into the Treasury.2 Prior to entry of judgment, the Appropriations Clause also shapes the legal doctrines that courts may apply to adjudicate money claims against the United States.3 Congress may even direct that no funds are available to pay what might otherwise be a valid debt.4 If there is no appropriation to pay an alleged debt, either because no such appropriation had been made or Congress has validly prohibited the use of otherwise available funds, the only way that the purported creditor may seek relief is by petitioning Congress.5

The Appropriations Clause’s limitation on drawing funds from the Treasury is not confined to the types of relief available in judicial proceedings against the United States.6 As the Court explained in 1850 in Reeside v. Walker, if there is no appropriation available, the President and Executive Branch officers and employees lack the authority to pay the “debts of the United States generally, when presented to them” 7 or to incur obligations on behalf of the United States in anticipation of Congress later making an appropriation to support the obligation.8 Even the President’s constitutionally vested powers may not, on their own, authorize or require disbursements from the Treasury.9 For example, though a presidential pardon removes all disabilities resulting from a pardoned offense, a pardon cannot require return of property seized, sold, and paid into the Treasury as a consequence of the offense.10

However, the Court has also identified circumstances in which the Appropriations Clause is not a relevant limitation on government action. The Clause governs the conduct of federal officers or employees, but it does not constrain Congress in its ability to incur obligations—binding commitments to pay federal funds—by statute11 or to otherwise dispose of public funds.12 Similarly, the Clause is not implicated where there is an appropriation available to make a payment, because in that event payments made pursuant to the appropriation would comply with the Clause.13

While the Appropriations Clause does not itself constrain Congress’s ability to dictate the terms upon which it makes funds available, other provisions of the Constitution may. The Court held in United States v. Lovett that a limitation in an appropriations act that barred payment of compensation to three named federal employees was an unconstitutional bill of attainder because it inflicted punishment without judicial trial.14 The Court also disregarded a limitation placed on an appropriation for the payment of Court of Claims judgments in United States v. Klein, explaining that the limitation impermissibly sought to change the legal effect of a presidential pardon.15

In short, the Court’s case law has considered the Appropriations Clause and its effects in roughly three contexts. The Court has articulated how, from Congress’s perspective, the Clause it not a relevant limitation on congressional action. The Clause requires an appropriation “made by law” before funds may leave the Treasury, and Congress is the branch empowered to authorize such disbursements. From the perspective of the other branches, the Clause conditions any exercise of a constitutional or statutory power, so that such powers cannot result in disbursements of Treasury funds absent an appropriation. Finally, the Court has considered appropriations made by Congress for their consistency with provisions or features of the Constitution other than the Appropriations Clause. If Congress imposes a limitation on funds that is itself unconstitutional, the limitation cannot be enforced.

Footnotes

1

Reeside v. Walker, 52 U.S. (11 How.) 272, 291 (1851) ( “[N]o mandamus or other remedy lies against any officer of the Treasury Department, in a case situated like this, where no appropriation to pay it has been made.” ).

2

See 95 U.S. 149, 154 (1877) (explaining that “if the proceeds” of condemned and sold property “have been paid into the treasury, the right to them has so far become vested in the United States that they can only be secured to the former owner of the property through an act of Congress” ); see also Republic Nat. Bank v. United States, 506 U.S. 80, 94–96 (1992) (Rehnquist, C.J., opinion of the Court) (reading Knote as standing for “the principle that once funds are deposited into the Treasury, they become public money,” and “thus may only be paid out pursuant to a statutory appropriation,” even if the Government’s ownership of the funds is disputed, but concluding that there was an appropriation that authorized payment of the funds sought by the petitioner).

3

See Off. of Pers. Mgmt. v. Richmond, 496 U.S. 414, 426 (1990) ( “[J]udicial use of the equitable doctrine of estoppel cannot grant respondent a money remedy that Congress has not authorized.” ).

4

See Hart v. United States, 118 U.S. 62, 65, 67 (1886) ( “It was entirely within the competency of congress to declare” that no debt that accrued prior to the outbreak of the Civil War could be paid in favor of a claimant who had “promoted, encouraged, or in any manner sustained” rebellion “till the further order of congress.” ).

5

See Bradley v. United States, 98 U.S. 104, 117 (1878) (stating that where the Federal Government contracted to lease real property owned by a third party, subject to Congress making appropriations in the future to pay the agreed annual rental amounts, the lessor had to “rely upon the justice of Congress” to recover the difference between the agreed rental value for the third year of the lease, $4,200, and the lesser amount actually appropriated for that year’s rental payments, $1,800); Reeside, 52 U.S. (11 How.) at 291 ( “Hence, the petitioner should have presented her claim on the United States to Congress, and prayed for an appropriation to pay it.” ); cf. R.R. v. Alabama, 101 U.S. 832, 835 (1879) (drawing an analogy between the Appropriations Clause and a similar provision in the Alabama Constitution to explain that in the absence of an appropriation “the party who gets a judgment must wait until Congress makes an appropriation before his money can be had” ).

6

Richmond, 496 U.S. at 425.

7

Reeside, 52 U.S. at 291 ( “No officer, however high, not even the President, much less a Secretary of the Treasury or Treasurer, is empowered to pay debts of the United States generally, when presented to them . . . . However much money may be in the Treasury at any one time, not a dollar of it can be used in the payment of any thing not thus previously sanctioned.” ).

8

See Bradley, 98 U.S. at 114 ( “Argument to show that money cannot be drawn from the treasury before it is appropriated is unnecessary, as the Constitution provides that ‘no money shall be drawn from the treasury but in consequence of an appropriation made by law. . . .’” (quoting U.S. Const. art. I, § 9, cl. 7)).

9

See Richmond, 496 U.S. at 425 ( “Any exercise of a power granted by the Constitution to one of the other branches of Government is limited by a valid reservation of congressional control over funds in the Treasury.” ).

10

Knote v. United States, 95 U.S. 149, 154 (1877) (holding that however large the President’s pardon power may be, that power, like “all” of the President’s powers, “cannot touch moneys in the treasury of the United States, except expressly authorized by act of Congress” ).

11

See Me. Cmty. Health Options v. United States, No. 18-1023, slip op. at 10, 13 (U.S. Apr. 27, 2020) (explaining that the Appropriations Clause constrains “how federal employees and officers may make or authorize payments without appropriations” but does not address “whether Congress itself can create or incur an obligation directly by statute” ).

12

See Cincinnati Soap Co. v. United States, 301 U.S. 308, 321 – 22 (1937) (concluding that the Appropriations Clause was “intended as a restriction upon the disbursing authority of the Executive department” and thus was “without significance” in a case challenging Congress’s decision to pay the proceeds of a tax on coconut oil to the treasury of the Philippine Islands and further rejecting the argument that the terms of the appropriation were so general that it constituted an impermissible delegation of legislative power to the Executive Branch); cf. United States v. Realty Co., 163 U.S. 427, 444 (1896) (stating that Congress’s decision to recognize a claim “founded upon equitable and moral considerations, and grounded upon principles of right and justice” and “appropriating money for its payment, can rarely, if ever, be the subject of review by the Judicial Branch of the government” ).

13

See Salazar v. Ramah Navajo Chapter, 567 U.S. 182, 198 n.9 (2012) (reading Richmond as having “indicated that the Appropriations Clause is no bar to recovery in a case like this one, in which ‘the express terms of a specific statute’ establish ‘a substantive right to compensation’ from” an appropriation (quoting Richmond, 496 U.S. at 432)). Congress may appropriate funds in terms that leave disbursing officials no discretion to deny a claimant the funds owed. See United States v. Price, 116 U.S. 43, 44 (1885) ( “fully” concurring with the conclusion of the Court of Claims that “congress undertook, as it had the right to do, to determine, not only what particular citizens of Tennessee, by name, should have relief, but also the exact amount which should be paid to each of them” (internal quotation marks omitted)); United States v. Jordan, 113 U.S. 418, 422 (1885) (same).

14

See 328 U.S. 303, 313, 316–18 (1946) (holding that though Congress phrased the limitation as compensation prohibition it served as a permanent bar on federal employment, a consequence that case law held to be punishment within the meaning of the Bill of Attainder Clause).

15

See United States v. Klein, 80 U.S. 128, 147 – 48 (1871) (explaining that the “legislature cannot change the effect of” a “pardon any more than the executive can change a law” ).