The Supreme Court Should Reclaim the Power of the Purse from the Administrative State

Where Did the Appropriations Power Go?

The Appropriations Clause of Article I, Section 9, Clause 7 vests Congress with the sole power to decide how federal dollars are spent, and that power cannot be leased to unelected administrators without a clear statement from the people's representatives. For most of American history, Congress wrote specific appropriations bills that named agencies, programs, and dollar amounts.

That began to change in the twentieth century. The Budget and Accounting Act of 1921 created the Bureau of the Budget, the Congressional Budget Act of 1974 erected new legislative machinery, and the Impoundment Control Act restricted the president's ability to withhold funds. Each reform aimed at efficiency, but each also shifted discretion toward permanent agencies.

By the 1980s, agencies were spending money through interagency agreements, program income, and no-year balances that never appeared in the headlines of appropriations bills. The Office of Management and Budget now estimates that roughly two-thirds of federal spending flows through mandatory programs and permanent appropriations that Congress never votes on year to year. The power of the purse has become a power of the permanent bureaucracy.

Congress still passes large bills, but the real decisions are made in appendices, footnotes, and agency interpretations. A statute authorizes a program in broad language, and an agency fills in the dollar amounts later. That is not appropriating. That is delegating the most important legislative power the Constitution assigns to the elected branch.

The Anti-Deficiency Act of 1884 and its modern successors were meant to stop agencies from spending beyond what Congress appropriated, yet enforcement is weak and penalties are rare. Agencies treat the Act as a technicality while they reprogram funds, carry over balances, and spend on activities that were never line-itemed by the House or Senate.

Why Does Agency Spending Threaten Self-Government?

Agency spending threatens self-government because it allows unelected officials to set national priorities, reward political allies, and punish disfavored industries without ever facing a voter. The Congressional Budget Office reported that the federal government spent $6.75 trillion in fiscal year 2024 while collecting only $4.92 trillion in revenue, leaving a deficit of $1.83 trillion.

That enormous gap is not the product of 535 roll-call votes alone. It is the product of thousands of rules, guidance documents, and enforcement decisions made by career staff at the Department of Education, the Environmental Protection Agency, the Securities and Exchange Commission, and dozens of other bodies. Each agency interprets its own authority generously and then spends or regulates accordingly.

The regulatory record is staggering. The Code of Federal Regulations spans roughly 185,000 pages, and the Federal Register published nearly 90,000 pages in 2023. The Competitive Enterprise Institute reports that federal agencies issue more than 3,000 final rules each year. Most Americans have no practical way to challenge a rule that affects their property, their business, or their church.

When Congress delegates spending power in broad strokes, it also delegates lawmaking power. That violates the separation of powers at the most basic level. The Constitution gives the House the power to originate revenue bills and the Senate the power to advise and consent on appointments. It does not create a fourth branch of government with a blank check.

The result is government by memo. A new administration arrives, swaps political appointees, and rewrites guidance that rewrites policy. But voters cannot fire the career staff who draft the memos. And they cannot vote down the rules. They are left with the bill and no recourse.

What Can the Court Do to Restore Article I?

The Supreme Court can restore Article I by reviving the nondelegation doctrine and requiring Congress to make the major policy choices that drive federal spending, rather than rubber-stamping open-ended statutes. The Court has flirted with this revival in Gundy v. United States in 2019 and in the major questions cases that culminated in West Virginia v. EPA and Biden v. Nebraska.

In 2024, the Court overturned Chevron deference in Loper Bright Enterprises v. Raimondo, ruling that courts must decide legal questions for themselves instead of deferring to agency interpretations. That decision was a step toward judicial accountability, but it did not address the source of the problem: statutes so vague that they invite agencies to legislate under the guise of interpretation.

The next frontier is the Appropriations Clause itself. The Court should hold that money cannot be obligated without a clear congressional appropriation tied to a specific statutory purpose. Agencies should not be able to move funds between accounts, create revolving funds, or spend grant money on programs that Congress never approved.

Such a ruling would not paralyze government. It would simply force Congress to do its job. Members would have to write narrower statutes, hold real oversight hearings, and answer for the dollars they approve. That is how representative government is supposed to work.

The administrative state has swallowed the power of the purse. It is time for the Supreme Court to hand that power back to the elected representatives who are accountable to the people.