Notice & Comment

Ad Law Reading Room: “Modernizing the Power of the Purse Statutes,” by Eloise Pasachoff

Today’s Ad Law Reading Room entry is “Modernizing the Power of the Purse Statutes,” by Eloise Pasachoff, which is forthcoming in the George Washington Law Review. Here is the abstract:

Two foundational statutes limit the executive branch’s important and necessary work in executing the budget against the backdrop of congressional control: the Antideficiency Act, dating back to the post-Civil War era, and the Impoundment Control Act, which emerged from the Nixon years. This essay, written as an invited contribution to the G.W. Law Review’s annual volume on administrative law, calls these the Power of the Purse statutes. While these statutes have been generally successful in responding to the problems that originally prompted them, the essay illustrates gaps in the statutes that have become apparent in an era of expanded presidential control and proposes reforms to fix them. The reforms largely, although not entirely, map onto legislation proposed by Democrats in the 116th and 117th Congresses. The essay argues that that these proposals are common-sense reforms that ought to be supported by bipartisan majorities (as underscored by, among other things, their support from a remarkably bipartisan coalition of civil society organizations during both the Trump and Biden administrations and the enactment of several of the reforms with bipartisan support through consecutive Consolidated Appropriations Acts). The essay thus reframes both the problems and the proposals as institutional rather than partisan and urges that the reforms ought to remain on the agenda for the 118th Congress and beyond.

The article’s contributions are both focused and varied. The focus is on two statutes, the Antideficiency Act and the Impoundment Control Act, which Pasachoff calls the “power of the purse statutes.” And while administrative-law scholars’ gaze most typically falls on the Administrative Procedure Act, Pasachoff makes a compelling case that the power of the purse statutes are worthy of greater attention than they have typically received. Indeed, as the article shows, the statutes have only grown in importance as control over the budget has become a key vector for the exercise of presidential authority.

Within that domain, the article makes a number of very useful contributions. Pasachoff exhaustively canvasses the gaps and weaknesses of the two statutes as they exist today before moving on to propose a set of reforms designed to address the identified problems. Throughout, the existing shortcomings and proposed reforms are framed in a way designed to de-politicize the discussion, the end result being a set of recommendations that should garner wide support for reasons of institutional “common sense” and not partisan advantage. Hopefully Congress will listen!

The Ad Law Reading Room is a recurring feature that highlights recent scholarship in administrative law and related fields. You can find all posts in the series here.

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