US Government Debt Different - Finance Department - University of ...

Jeremy Kreisberg & Kelley O’Mara (Under the Supervision of Professor Howell Jackson)under the Impoundment Control Act. When the D.C. Circuit in Cityof New Haven v. United States reviewed the original deferral language,it upheld “routine ‘programmatic’ deferrals . . . to meet the inevitablecontingencies that arise in administering congressionally-fundedagencies and programs,” but it declared that “‘policy’ deferrals, whichare intended to advance the broader fiscal policy objectives of theAdministration,” are unconstitutional. 216 The Act was amended withthe “contingencies” language to reflect this distinction and permitonly “programmatic” deferrals. 217 Therefore, “[d]eferrals for policyreasons are not authorized.” 218289Professor Peter Shane writes that prioritization through “pro–grammatic deferral” would be “deeply ironic” because “the Presidentcould select expenditures to defer or not defer only by making policyjudgments about spending levels that are different from the policyjudgments that Congress enacted in its appropriations Acts.” 219However, Professor Shane argues that the President would have noother option and he “would have to decide, on his own initiative,what projects and activities to put on hold to keep from violatingthe law. Congress would thus have tacitly abdicated to the executivebranch a huge swath of the power over government fiscal policy thatthe Framers quite deliberately vested in Congress.” 220Partially due to the Administration’s hesitance to discuss the issueduring debt limit negotiations, it is unknown if the Executive Branchwould have acted on this putative prioritization authority. However,it is clear that Treasury had a distaste for prioritizing. 221 Secretary216809 F.2d at 901. “The critical distinction between ‘programmatic’ and ‘policy’ deferrals isthat the former are ordinarily intended to advance congressional budgetary policies by ensuringthat congressional programs are administered efficiently, while the latter are ordinarily intendedto negate the will of Congress by substituting the fiscal policies of the Executive Branchfor those established by the enactment of budget legislation.”217See Letter from Milton J. Socolar for the Comptroller General of the United States, to thePresident of the Senate and the Speaker of the House of Representatives (Mar. 6, 1990) (availableat http://www.gao.gov/assets/220/212244.pdf).218U.S. General Accounting Office, Principles of Federal Appropriations Law: Third Edition,Volume I, 1-32 fn. 61.219Peter M. Shane, What May a President Do if He Cannot Pay Our Bills Without Borrowing andBorrowing More Money is Unlawful?, Shane Reactions, July 19, 2011, http://shanereactions.wordpress.com/2011/07/19/what-may-a-president-do-if-he-cannot-pay-our-bills-withoutborrowing-and-borrowing-more-money-is-unlawful/.220Id.221See, e.g., Geithner, supra note 22; Wolin, supra note 191.