How Department of State v. Aids Vaccine Advocacy Coalition Should Be Resolved (But Probably Won’t Be)

 

How Department of State v. Aids Vaccine Advocacy Coalition Should Be Resolved

(But Probably Won’t Be)

A key issue in this federal case is: What are the legal consequences when Congress appropriates funds by statute? Here, Congress has appropriated funds for named organizations, but the President or his officers have chosen not to segregate and remove the appropriated funds from the Treasury.

Many believe, including some federal judges and legal scholars, that when Congress appropriates money by statute, it follow that those funds must be spent (leaving aside the possibility of any express discretion designed into the statute at issue). There are reasons to reject this position as a settled rule of law.

First, an appropriations statute authorizes the Executive Branch to segregate funds in the Treasury (if such funds are available) and to remove those funds from the Treasury, and, then, further authorizes that the funds be spent for the purposes or in the manner approved by Congress, and in no other fashion. See generally Paul Einzig, The Control of the Purse (1959). But it is not clear that an appropriation commands the segregation, removal, and spending of such funds. Whether a particular statute mandates the segregation, removal, and spending of such funds will depend on the words of the statute. In other words, a naked appropriation (even where made for a particular purpose) does not without more imply that Congress has left the Executive Branch without discretion not to spend the appropriated funds.

Prior to 1787–1788, I do not believe this issue came up in the Imperial or colonial legislatures. Nor do I believe that it came up post 1776 and prior to 1788 among the independent states. The King or his representative was hungry for cash. If an expenditure was approved by the legislature, the executive spent the funds as soon as it was appropriated if not before—often anticipating statutory approval once the lower (elected) house passed a resolution in support of the spending. Sir Thomas Erskine May, A Treatise on the Law, Privileges, Proceedings, and Usage of Parliament 573–74 (7th ed. 1873) (stating that “[i]t has been customary for the government to levy the new duties, instead of the duties authorised by law” either “immediately [after] the resolutions for that purpose have been reported from a committee, and agreed to by the house; or from the date expressed in such resolution, although the legal effect cannot be given to them by statute ... and may ultimately be withheld by Parliament”).

The historical ideal or purpose behind the Constitution’s Appropriations Clause was to make sure that funds could not be segregated and removed from the Treasury absent the legislature’s approval, and that if so removed, such funds could only be spent for the purpose or in the manner as provided by the legislature. I have real doubts if in debating, proposing, and ratifying the Constitution with the Appropriations Clause anyone had considered whether the Executive Branch was obligated (by the Constitution and by statute) to spend such funds as provided by a mere appropriations statute absent some indication (beyond the form of such an act) that Congress intended to mandate such an expenditure. I suggest that the historical default in regard to an appropriation was that such statutes were understood as permissive, not mandatory.

The real question, then, is not the effect of an Appropriations Act per se, but what statutory language would be effective to mandate the Executive Branch’s segregating the appropriated funds, removing them, and then spending them in conformity with the statute. Where Congress’s appropriations act directs a cabinet member, other statutory officer, or civil servant to appropriate such funds, then the question is entirely one of statutory interpretation—as Congress has the power to issue binding directives, in the normal course of legislating, to such governmental actors.

However, where an appropriations act directs the President to segregate funds, remove them, and then to spend them in conformity with the statute, then other principles come into play. Why? Primarily because the President is not a subordinate of Congress and is, instead, a coordinate (and, in some sense, a co-equal) branch of government with its own independent democratic mandate. For Congress to impose a mandatory duty on the President by statute, Congress’s statute must: set a time limit for its fulfilment, designate adverse consequences or a punishment in regard to presidential inactivity, and must clearly indicate that the appropriation is more than permissive, but is mandatory. Furthermore, the use of “shall” is ambiguous, and for that reason, such language does not, without more, impose a duty to act on the President.

Second, even if an appropriations act is mandatory (as opposed to permissive), Treasury funds can only be segregated and removed if they are available. If the Treasury is in the red, then funds are not available, and so, the Executive Branch cannot be held (as a legal matter) to do what is not possible. Indeed, a congressional appropriation, without more, does not empower the Executive Branch to tax, to borrow funds, or to sell federal property to meet otherwise mandatory obligations to spend funds. Such powers must be granted in free-standing statutes (or in additional provisions in the appropriations act itself). Where Congress empowers the Executive Branch to engage in deficit spending by borrowing funds, that too is a statutory power. Here also, one must look to the words of the statute. If Congress has granted the Executive Branch a power to borrow funds (that is, to sell bonds, etc), that power may be merely permissive, and not mandatory. And if permissive and unexercised, then the Executive Branch cannot be faulted for not segregating, removing, and spending funds in conformity with the other statutes, including any appropriations act.

Third, there is a history of Presidents’ acting on their own authority to impound funds temporarily subject to congressional ratification after-the-fact. The general rule is that what Congress can approve ex ante, it can also ratify ex post. However, a President’s taking such unilateral action risks the possibility that Congress will not ratify his impoundment decision, and sanctions (e.g., impeachment) could flow from such presidential conduct. Likewise, Presidents have claimed the power to impound funds approved (by statute) for military use in situations where hostilities end unexpectedly. Lincoln claimed similar financial powers at the outbreak of the Civil War. And his doing so is why we have a country today.

Generally, Congress is the master of the federal government’s financial house. But if it fails to speak with a clear and consistent voice among its different statutes, then that will empower the Executive Branch and the President. That is just how our separation of powers system works.

Seth

Seth Barrett Tillman, ‘How Department of State v. Aids Vaccine Advocacy Coalition Should Be Resolved (But Probably Won’t Be),’ New Reform Club (Sept. 28, 2025, 9:00 AM), <https://reformclub.blogspot.com/2025/09/how-department-of-state-v-aids-vaccine.html>;