ArtI.S9.C7.2 Historical Background on Appropriations Clause

Article I, Section 9, Clause 7:

No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law; and a regular Statement and Account of the Receipts and Expenditures of all public Money shall be published from time to time.

The Appropriations Clause makes part of American constitutional law a regular practice of British Parliaments dating from at least the Glorious Revolution of the late seventeenth century. Parliament’s function of granting its consent to raise revenue as a supplement to the Monarch’s ordinary revenue sources had by then been an established and powerful tool.1 However, prior to the Glorious Revolution, Parliament does not seem to have regularly directed its attention to decisions of how voted sums would be used.2 The view of King Charles II’s chief ministers in the decades prior to the Glorious Revolution, for example, was that the Monarch was the “master of his own money” and that his ministers had discretion to apply voted sums “to defray any casual expenses, of any nature” whatsoever.3 The ministers viewed a 1665 supply bill passed by the House of Commons, for example, as “not fit for [a] monarchy” because it included a clause of appropriation, that is, legislative language stating that sums the bill raised could be used only for the costs of war against the Dutch Republic.4 However, when King William III and Queen Mary II jointly assumed the throne in 1689, they recognized Parliament’s power to legislate supply and expenditure.5 Thereafter, clauses of appropriations became common features of parliamentary legislation.6

When the American states framed new systems of government after Independence, most state constitutions made legislative authorization a prerequisite for drawing any funds from a state treasury.7 No state constitution in effect in 1787 expressly allowed a person to draw money from the state treasury without legislative authorization.8 The states framed the Articles of Confederation to include a similar appropriating function for the Confederation Congress,9 albeit one that drew from a common treasury supplied by taxes laid and levied by states rather than by the Confederation Congress itself.10

Perhaps owing to the pedigree then enjoyed by the view that a legislature should be solely endowed with the authority to identify the purposes for which public money may be spent, the Appropriations Clause itself attracted little debate at the Constitutional Convention of 1787. The Framers debated only whether the Senate—then conceived as a body whose members the states would elect—would have the power to originate or amend, among others, appropriations bills.11 The first proposal in the Convention that mentioned Congress’s appropriations function stated that “all Bills for raising or appropriating money” shall “originate in the first Branch of the Legislature, and shall not be altered or amended by the second Branch....” 12 This first proposal continued: “and that no money shall be drawn from the public Treasury but in pursuance of appropriations to be originated in the first Branch.” 13 The delegates ultimately removed limitations on Senate origination and amendment of appropriations bills in the Constitution before submitting the Constitution to the states for ratification.14

The Appropriations Clause occasionally figured in arguments advanced on either side of ratification. Those favoring ratification cited the Clause as a way to ensure that expenditure decisions would be made by legislators, the officials who under the new Constitution would be most accountable to the people.15 Proponents also argued that the Clause would check Executive power16 and guard against waste of public funds.17 Those opposing ratification of the Constitution as proposed drew unfavorable comparisons between the original text of the Appropriations Clause, which would have barred the Senate from amending or originating bills making appropriations, and the version submitted to the states for ratification, which made the Senate an equal partner to the House of Representatives in authorizing expenditures.18

See 1 William Blackstone, Commentaries *271, *296–97 (distinguishing between the Monarch’s ordinary revenue, meaning revenue sources that belonged to the Monarch by long-standing custom, and extraordinary revenues, defined as the “aids, subsidies, and supplies” periodically granted by Parliament to supplement ordinary revenues). back
See, e.g., 3 John Hatsell, Precedents of Proceedings in the House of Commons 203 (1818) (dating regular use of clauses of appropriation to 1688). However, members of Parliament maintained that they had the authority to legislate expenditure decisions even before the practice became more common. See 3 Anchitell Grey, Debates of the House of Commons 446–47 (1763) (statement of William Sacheverell, M.P.) (asserting, during 1675 debate in the Grand Committee of Supply, precedent for clauses of appropriation in supply bills dating from the 13th century). back
3 Edward Hyde,The Life of Edward Earl of Clarendon 17 (1827). back
Id. at 10–11, 13. The clause passed the House of Commons, on Lord High Chancellor Clarendon’s telling, because to that point King Charles II had lent it his support, relying on the faulty advice of its proponents. Id. at 11. After the House of Lords received the bill, near when Parliament was to be prorogued, the King heard debate over its merits. Id. at 14–22. The King left the debate “unsatisfied” but gave the bill his assent because there was not enough time left in the session to correct the allegedly troublesome clause. See id. at 22; see also 17 Car. II, c. 1 (1665), reprinted in 5 Statutes of the Realm 573 (John Raithby ed., 1819) (reciting that “noe moneyes leavyable by this Act be issued out of the Exchequer dureing this Warr but by such Order or Warrant mentioning that the moneyes payable by such Order or Warrant are for the service of Your Majestie in the said Warr respectively” ). back
See Bill of Rights of 1689, 1 W. & M., 2d sess., c.2 (1688) (dated under the Old Style calendar), reprinted in 6 Statutes of the Realm 143 (John Raithby ed., 1819) (listing among Parliament’s ancient rights and liberties the rule that “levying Money for or to the Use of the Crowne” by pretense “of Prerogative without Grant of Parlyament for longer time or in other manner then the same is or shall be granted is Illegall” ). back
See 3 Hatsell, supra note note 2 at 202–05 (stating that between 1689 and the early 1800s Parliament’s general practice was to specify “the particular sums which they thought necessary to be applied to the different services they had voted in the course of the session” ). back
See Del. Const. of 1776, art. VII (providing for the appointment of a “chief magistrate” empowered to “draw for such sums of money as shall be appropriated by the general assembly, and be held accountable to them for the same” ); Md. Const. or Form of Gov’t of 1776, at X – XI (specifying that the House of Delegates would originate all “money bills,” a term defined to include all bills “appropriating money in the treasury” or otherwise providing supplies “for the support of the government” ); Mass. Const. of 1780, ch. 2, § 1, art. XI ( “No moneys shall be issued out of the treasury of this Commonwealth, and disposed of . . . but by warrant, under the hand of the Governour for the time being, with the advice and consent of the council, for the necessary defence and support of the Commonwealth; and for the protection and preservation the inhabitants thereof, agreeably to the act and resolves of the general court.” ); N.H. Const. of 1783, pt. 2, reprinted in The Perpetual Laws of the State of New-Hampshire 16 (John Melcher ed., 1789) (substantially similar language to that of Massachusetts Constitution of 1780); N.C. Const. of 1776, § 19 ( “That the governor for the time being, shall have the power to draw for and apply such sums of money as shall be voted by the general assembly for the contingencies of government, and be accountable to them for the same” ); Pa. Const. of 1776, § 20 (providing that the president and the president’s council “may draw upon the treasury for such sums as shall be appropriated by the house” ); S.C. Const. of 1778, art. XVI (directing that no “money be drawn out of the public treasury but by the legislative authority of the state” ). back
The constitutions of Georgia, New Jersey, New York, and Virginia, in effect in 1787, did not expressly refer to the making of appropriations. See Ga. Const. of 1777; NJ. Const. of 1776; N.Y. Const. of 1777; Va. Const. of 1776. Rhode Island and Connecticut “retained their colonial charters with only minor modifications as their fundamental law into the nineteenth century.” G. Alan Tarr, Understanding States Constitutions 60 (1998). back
Articles of Confederation of 1781, art. IX, para. 5 (granting the Confederation Congress the power to “ascertain the necessary sums of Money to be raised for the service of the united states, and to appropriate and apply the same for defraying the public expenses” ). back
Id. art. VIII. back
1 The Records of the Federal Convention of 1787, at 544–45 (Max Farrand ed. 1911). back
Id. at 524. back
Id. back
2 The Records of the Federal Convention of 1787, at 545, 552 (Max Farrand ed. 1911). back
See, e.g., 2 The Documentary History of the Ratification of the Constitution: Pennsylvania 417 (Merrill Jensen ed., 1976) (Nov. 28, 1787 convention statement of Thomas McKean) (contending that because the Appropriations Clause would settle responsibility for disbursements on Congress and the Statements and Accounts Clause would require disclosure of disbursements, the people could “judge of the conduct of their rulers and, if they see cause to object to the use or the excess of the sums raised, they may express their wishes or disapprobation to the legislature in petitions or remonstrances” ); 6 The Documentary History of the Ratification of the Constitution: Massachusetts 1322 (John P. Kaminski et al. eds., 2000) (similar argument in January 23, 1788 convention statement of James Bowdoin); see also Brutus, Virginia J. (Dec. 6, 1787), reprinted in 8 The Documentary History of the Ratification of the Constitution: Virginia 215 (John P. Kaminski et al. eds., 1988) (excerpted response to George Mason’s objections to the Constitution) (pointing to the Appropriations Clause as requiring that “any evils which may arise from an improper application of the public money must either originate with, or have the assent of the immediate Representatives of the people” ). back
See An Impartial Citizen, in Petersburg Virginia Gazette (Jan. 10, 1788), reprinted in 8 The Documentary History of the Ratification of the Constitution: Virginia 295 (John P. Kaminski et al. eds., 1988) (arguing that because, among other things, the President could not “appropriate the public money to any use, but what is expressly provided by law,” the President’s constitutional powers would leave “dignity enough for the execution” of the office “without the possibility of making a bad use of it” ). back
See A Native of Virginia, Observations upon the Proposed Plan of Federal Government (Apr. 2, 1788), reprinted in 9 The Documentary History of the Ratification of the Constitution: Virginia 676 (John P. Kaminski et al. eds., 1990) ( “As all appropriations of money are to be made by law, and regular statements thereof published, no money can be applied but to the use of the United States.” ). back
See, e.g., George Mason, Objections to the Proposed Federal Constitution (1787), reprinted in Pamphlets on the Constitution of the United States Published During Its Discussion by the People, 1787–1788, at 329 (Paul Leicester Ford ed., 1888) [hereinafter Pamphlets on the Constitution] (pointing to the Senate’s composition powers, including its ability to alter money bills and originate appropriations, to argue that the Senate would “destroy any balance in the government” ); but see James Iredell, Answers to Mr. Mason’s Objections to the New Constitution, Recommended by the Late Convention (1788), reprinted in Pamphlets on the Constitution, at 340–41 (arguing that the Senate should have a role in offering and amending appropriations because the House of Representatives might overlook a needed appropriation and the House would be able to check the Senate’s power by withholding its assent to appropriations proposed in the upper chamber). back