Annual appropriations and permanent appropriations play contradictory roles in the separation of powers. Annual appropriations preserve agencies’ need for congressionally provided funding and enforce a domain of congressional influence over agency action in which the House and the Senate each enforce written unicameral commands through the threat of reduced appropriations in the next annual cycle. Permanent appropriations permit agencies to fund their programs without ongoing congressional support, circumscribing and diluting Congress’s domain.
The unanswered question of Chevron deference for appropriations demonstrates the importance of the distinction between annual appropriations and permanent appropriations. Uncritical application of governing deference tests that emphasize the time and procedural steps an agency put into an interpretation would tend to favor deference for agency interpretations of permanent appropriations, but not for annual appropriations. Yet this result is upside-down if courts’ goal is to promote accountability and avoid interference with the balance of power between the political branches. Chevron has two core functions, a subdelegation function (it transfers the authority delegated in ambiguities from courts to agencies) and an anti-entrenchment function (it relieves interpretations of the solidifying force of stare decisis). As applied to annual appropriations, both functions respect Congress’s primary role in enforcement through the appropriations cycle; as applied to permanent appropriations, both functions interfere with Congress’s domain.
Courts that evaluate Chevron for appropriations without acknowledging and addressing the elemental difference between annual appropriations and permanent appropriations interfere with the political branches and frustrate Congress’s expectations. Courts should adopt a bifurcated approach to Chevron for appropriations that disfavors deference for permanent appropriations provisions, but not for annual appropriations provisions. This Article suggests how the distinction between annual and permanent appropriations may be relevant to the incorporation of appropriations into other aspects of administrative law doctrine, including legislative standing, reviewability, and nondelegation.
Matthew B Lawrence & Eric A. Posner, Congress’s Domain: Appropriations, Time, and Chevron, 70 Duke L.J. 1057-1107 (2021)
Available at: https://scholarship.law.duke.edu/dlj/vol70/iss5/4