Effect of Appropriations for Other Agencies and Branches on the Authority to Continue Department of Justice Functions During the Lapse in the Department's Appropriations ( 1995 )

Effect of Appropriations for Other Agencies and Branches on
the Authority to Continue Department of Justice Functions
During the Lapse in the Department’s Appropriations
Where Congress has provided appropriations for the legislative branch, the Department of Justice may
continue to provide testimony at hearings and perform other services related to funded functions
of the legislative branch during a lapse in funding for the Department, if the participation o f the
Department is necessary for the hearing or other funded function to be effective.
Similarly, those functions of the Department o f Justice that are necessary to the effective execution
of functions by an agency or department o f government that has current fiscal year appropriations,
such that a suspension of the Department’s functions during a lapse in its own appropriations
would prevent or significantly damage the execution of those funded functions, may continue
during the Department’s funding lapse.
December 13, 1995
M e m o r a n d u m O p in io n f o r t h e A t t o r n e y G e n e r a l
During the recent appropriations lapse we prepared for you a memorandum on
the authority of the Department to participate in congressional hearings that were
held during an appropriations lapse. See Participation in Congressional Hearing
During an Appropriations Lapse, 19 Op. O.L.C. 301 (1995). This memorandum
is intended to update that earlier memorandum in light of subsequent congressional
enactments, particularly the Act providing appropriations for the legislative branch
during the current fiscal year.
In his 1981 opinion, Attorney General Civiletti concluded that functions and
activities could continue during a funding hiatus when authorization for their
continuation was a valid inference from other funding decisions of the Congress.
Authority for the Continuance of Government Functions During a Temporary
Lapse in Appropriations, 5 Op. O.L.C. 1, 5 (1981). Attorney General Civiletti
identified as one o f the categories of activities that may continue during a lapse
those functions that are “ authorized by necessary implication from the specific
terms of duties that have been imposed on, or authorities that have been invested
in” an agency. Id. He explained that this category includes unfunded functions
that enable other funded functions to be executed. The primary example o f this
is social security benefits. Attorney General Civiletti opined that, although those
who administer the Social Security benefit program are paid out of annual appro­
priations that could lapse, they could continue to administer Social Security
because the benefit itself is paid out o f a permanent appropriation. Id. at 5 n.7.
In our recent memorandum to you, we applied this principle to Department
of Justice participation in congressional hearings:
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Opinions o f the Office o f Legal Counsel in Volume 19
The Department’s officers and employees may also participate
in a hearing despite an appropriations lapse if authority for such
participation arises by necessary implication from another specific
statutory duty or duties. See 5 Op. O.L.C. at 3-5. In the context
of congressional hearings, this exception permits the Department
to participate where there is express authority or an express and
specific appropriation for the hearing itself, and the Department’s
participation is necessary for the hearing to be effective, even
though there is no specific authority or appropriation available for
the Department to participate. This exception also operates where
there is express authority for a specific Department official to
participate — such as might arise from a subpoena— but no express
authority for support or assistance o f the witness. The Department
would regard support and assistance to the otherwise authorized
participation as being justified by necessary implication. This
approach follows from the well-settled practice with respect to
Social Security. See 5 Op. O.L.C. at 5 n.7.
19 Op. O.L.C. at 303.
By enacting the legislative branch appropriations bill, the Congress has now
decided that the funded activities of the legislative branch for the current year
should proceed (and the President has concurred). Should the Department again
experience a funding lapse, that specific decision by the Congress to fund its own
activities in the context of a funding lapse for other components of government
will support an implication similar to the one drawn in the case of Social Security.
Accordingly, the Department may continue activities such as providing testimony
at hearings if “ the Department’s participation is necessary for the hearing to be
effective.” Id. The Department would also be authorized to perform other services
that bear a similar relation to other funded functions of the legislative branch.
A similar implication can also be supported by the specific decisions that Con­
gress has made to fund other agencies and departments of government so that
their functions are to continue during a funding lapse.1 To the extent that any
o f the Department’s functions are necessary to the effective execution of functions
by an agency that has current fiscal year appropriations, such that a suspension
o f the Department’s functions during the period of anticipated funding lapse would
prevent or significantly damage the execution of those funded functions, the
Department’s functions and activitives may continue. Although, as Attorney Gen-
1 Since the last appropriations lapse, seven fiscal year 1996 appropriations bills have been enacted* Military
Construction, Pub. L. No. 104-32, 109 Stat. 283 (1995); Energy and W ater, Pub. L. No. 104-46, 109 Stat. 402
(1995); A griculture, Pub. L. No. 104-37, 109 Stat. 299 (1995); Transportation, Pub. L. No. 104-50, 109 Stat. 436
(1995); Treasury. Postal, Pub. L. No. 104-52, 109 StaL 468 (1995); Defense, Pub. L. No. 104-61, 109 Stat. 636
(1995); Legislative Branch, Pub. L. No. 104-53, 109 Stat. 514 (1995). O ther actions o f the Congress may also
support such an implication; for example, a m ulti-year appropriation under circumstances in which Congress was
aw are that perform ance o f the function or activity would necessarily span fiscal years.
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E ffect o f A pprop ria tio n s f o r O ther A gencies a n d B ranches on th e A u th o rity to C ontinue D epartm ent
o f Ju stic e F unctions D uring the L apse m the D epartm ent’s A ppropriations
eral Civiletti noted, it could be argued that the failure to appropriate funds for
the Department’s activities expresses a congressional conclusion that the execution
of activities of other agencies that have otherwise been funded should nevertheless
either be suspended or significantly damaged by virtue o f the lack of funding
for the Department, we conclude, consistent with Attorney General Civiletti’s
treatment of Social Security, that the decision to fund those other activities in
this fiscal year “ substantially belies this argument,” 5 O.L.C. at 5 n.7, and that
the view presented here constitutes the better interpretation.
WALTER DELLINGER
Assistant Attorney General
Office o f Legal Counsel
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