Social and Behavioral Sciences Commons^™

Congress's Domain: Appropriations, Time, And Chevron, Matthew B. Lawrence

Faculty Articles

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 …

Subordination And Separation Of Powers, Matthew B. Lawrence

Faculty Articles

This Article calls for the incorporation of antisubordination into separation-ofpowers analysis. Scholars analyzing separation-of-powers tools—laws and norms that divide power among government actors—consider a long list of values ranging from protecting liberty to promoting efficiency. Absent from this list are questions of equity: questions of racism, sexism, and classism. This Article problematizes this omission and begins to rectify it. For the first time, this Article applies critical-race and feminist theorists’ subordination question—are marginalized groups disproportionately burdened?—to three important separation-of-powers tools: legislative appropriations, executive conditions, and constitutional entrenchment. In doing so, it reveals that each tool entails subordination by creating generalized …

Disappropriation, Matthew B. Lawrence

Faculty Articles

In recent years, Congress has repeatedly failed to appropriate funds necessary to honor legal commitments (or entitlements) that are themselves enacted in permanent law. The Appropriations Clause has forced the government to defy legislative command and break such commitments, with destructive results for recipients and the rule of law. This Article is the first to address this poorly understood phenomenon, which it labels a form of “disappropriation.”

The Article theorizes recent high-profile disappropriations as one probabilistic consequence of Congress’s decision to create permanent legislative payment commitments that the government cannot honor without periodic, temporary appropriations. Such partially temporary programs include …

A Functional Theory Of Congressional Standing, Jonathan R. Nash

Faculty Articles

The Supreme Court has offered scarce and inconsistent guidance on congressional standing—that is, when houses of Congress or members of Congress have Article III standing. The Court’s most recent foray into congressional standing has prompted lower courts to infuse analysis with separation-of-powers concerns in order to erect a high standard for congressional standing. It has also invited the Department of Justice to argue that Congress lacks standing to enforce subpoenas against executive branch actors.

Injury to congressional litigants should be defined by reference to Congress’s constitutional functions. Those functions include gathering relevant information, casting votes, and (even when no vote …