Notice & Comment

Apportionment Transparency in the 2022 CAA: The Return of Congressional Institutionalism?, by Matthew B. Lawrence

The 2022 Consolidated Appropriations Act that President Biden signed into law on March 15 includes a new and important restraint on the tool of presidential administration made famous by former President Trump’s interference with aid to Ukraine, namely, apportionment. This blog post highlights this restraint, then explains why it is surprising in ways that could be relevant for broader looming doctrinal debates, including non-delegation and Chevron. In short, Congress’s inclusion of apportionment transparency provisions in the 2022 Consolidated Appropriations Act is important in its own right and may signal a return to institutionalism—to members putting institutional affiliation ahead of partisan affiliation—that would undermine the case for judicial intervention in the separation of powers.

The new restraint is on OMB’s apportionment power. Professor Pasachoff’s 2016 Yale Law Journal article noted that in addition to OIRA’s regulatory review functions, the resource management offices (RMOs) at OMB are an important tool of presidential administration, and that RMOs’ power to “apportion” (place limits and conditions on the use of) congressional appropriations is a key source of their power. Although apportionments are in many cases final decisions that are legally binding on agencies, they ordinarily are not disclosed to the public. The hold on Ukraine security assistance that led to President Trump’s first impeachment is probably the most famous use (the GAO ruled it was an abuse) of the apportionment power that spilled into public view. The ability of OMB to use apportionments as a non-public tool of presidential administration goes far beyond Ukraine, however, as noted in various fora by the non-partisan Power of the Purse coalition.

The omnibus contains a new legislative check on this power, bringing transparency to OMB’s use of apportionments. Section 204 of Division E for the first time requires public disclosure of apportionments, apportionment footnotes, and sub-delegations of apportionment authority within OMB. Section 748 for the first time requires (and empowers) agencies to report inappropriate executive conditions and other barriers imposed through apportionments to the relevant committees of Congress. (I’ve inserted screen captures of each section below.) One interesting note for legal scholars about these reforms is the fact that both Professor Pasachoff and Professor Josh Chafetz testified at a 2020 House Budget Committee hearing related to this issue. (In full disclosure, I was on a detail serving as special legal advisor to the committee at the time of that hearing, and previously worked at OMB.)

The apportionment transparency reforms are important in their own right. They are also surprising in a way that could implicate broader debates in administrative law. The surprising thing about the apportionment transparency reforms is the fact that they apparently reflect institutionalism, not partisanship (or, at least not short-term partisanship). Yes, these provisions would have addressed noteworthy Trump-era executive abuses, including both the Ukraine withholding and delays in hurricane aid to Puerto Rico (for more background on those uses of the apportionment power see Professor Pasachoff’s 2020 chapter or my 2021 Yale Law Journal article). But the president today is Biden, not Trump, and the apportionment transparency provisions are prospective, not retrospective.

We today have a unified government—the House, Senate, and Presidency are held by the same party. Ordinarily in a polarized environment, we would not expect to see a House and Senate motivated purely by narrow partisan goals passing legislation that checks their same-party President in the short term, even if the reform might advance the interests of Congress as an institution. (I explained at a recent Federalist Society panel on these issues that I think this reform could strengthen the executive as an institution in the long term by increasing its competence, but it certainly imposes short-term costs on the current administration.) But this House and this Senate enacted apportionment transparency provisions nonetheless.

Budget Committee Chairman John Yarmouth described the apportionment transparency provisions, which he has championed, as motivated by the goal of empowering Congress. As he put it, the provisions “reassert Congress’ power of the purse” and “will help Congress restore its central role in funding decisions.” If this reflects an overarching pattern of Congress putting institutional interests ahead of short-term partisan goals, it could arguably have implications for ongoing debates about whether and how the judiciary should intervene to “fix” current perceived problems in the structure and function of the federal government, such as by reviving the non-delegation doctrine or tightening Chevron.

When we think about how to “fix” problems in the structure and operation of the federal government today, we often assume that the only option is judicial intervention. This is odd, because the structure and function of the federal government is largely a product of statutes written by Congress, norms developed within all three branches, and the behavior of actors in each institution—what Professors Huq and Michael call the “thick political surround.” See, for several examples, the means Congress has at its disposal to reassert itself described by Professor Chafetz in his book, “Congress’s Constitution: Legislative Authority and the Separation of Powers.” This means that the interaction between courts’ interpretations of the Constitution and statutes, on the one hand, and the laws, norms, and behaviors that actually determine who has real power, when, and how they wield it, on the other, can be attenuated and hard to predict. Often courts refuse invitations to intervene to “solve” problems created by statutes or political-branch actors, instead explaining that responsibility for solving such problems lies in the political branches that created them. Why are separation of powers questions different?

The assumption that partisanship always trumps institutionalism, that the “separation of parties” has short-circuited Madison’s vision of “ambition checking ambition,” is a ready response to this objection to judicial intervention. If competition between the branches has broken down totally and irretrievably in favor of narrow, short-term partisan interests, then the political branches cannot “fix” whatever is broken about the structure and function of the federal government, leaving judicial innovation as the only option. Congress’s surprising reassertion of its interests even against a same-party president in the 2022 Consolidated Appropriations Act is important not only in its own right, then, but also as a data point suggesting that institutionalism can still win. If this reflects (or grows into) a larger pattern, it could offer a reason for courts to hold out hope that the political branches—and we the people who elect them—can still fix for ourselves what ails our federal government.

Matthew B. Lawrence is associate professor of law at Emory Law.