Authority for the Continuance of Government Functions During a Temporary Lapse in Appropriations ( 1981 )

Authority for the Continuance of Government Functions
During a Temporary Lapse in Appropriations
Statutory authority for an agency to incur obligations in advance o f appropriations heed
not be express, but may be implied from the specific duties that: have been imposed
upon, or of authorities that have been invested in, the agency.
The “authorized by law” exception in the Antideficiency Act exempts from that A ct’s
general prohibition not only those obligations for which there is statutory authority,
but also those obligations necessarily incident to initiatives undertaken within the
President’s constitutional powers.
A government agency may employ personal services in advance o f appropriations only
when there is a reasonable and articulable connection between the function to be
performed and the safety of human life or the protection of property, and when there is
some reasonable likelihood that either or both would be compromised in some degree
by delay in the performance o f the function in question.
January 16, 1981
T h e P r e s id e n t
T h e W h it e H o u se
M y D e a r M r. P r e s i d e n t : Y o u have asked my opinion concerning the
scope of currently existing legal and constitutional authorities for the
continuance of government functions during a temporary lapse in ap­
propriations, such as the government sustained on October 1, 1980. As
you know, some initial determination concerning the extent o f these
authorities had to be made in the waning hours of the last fiscal year in
order to avoid extreme administrative confusion that might have arisen
from Congress’ failure timely to enact 11 of the 13 anticipated regular
appropriations bills,1 or a continuing resolution to cover the hiatus
between regular appropriations. The resulting guidance, which I ap­
proved, appeared in a memorandum that the Director of the Office of
Management and Budget circulated to the heads of all departments and
agencies on September 30, 1980. Your request, in effect, is for a close
and more precise analysis of the issues raised by the September 30
memorandum.
Before proceeding with my analysis, I think it useful to place this
opinion in the context of my April 25, 1980, opinion to you concerning
the applicability of the Antideficiency Act, 31 U.S.C. § 665, upon lapses
'P rio r to October 1, 1980, Congress had passed regular appropriations for fiscal year 1981 only for
energy and water development, Pub. L. No. 96-367, 94 Stat 1331 (Oct. 1, 1980).
i
in appropriations, 43 Op. A tt’y Gen. No. 24, 4 Op. O.L.C. 16 (1980).
That opinion set forth tw o essential conclusions. First, if, after the
expiration o f an agency’s appropriations, Congress has enacted no ap­
propriation for the immediately subsequent period, the agency may
make no contracts and obligate no further funds except as authorized
by law. Second, because no statute generally permits federal agencies to
incur obligations without appropriations for the pay of employees,
agenices are not, in general, authorized by law to employ the services
of their employees upon a lapse in appropriations. My interpretation of
the Antideficiency Act in this regard is based on its plain language, its
history, and its manifest purposes.
T he events prompting your request for my earlier opinion included
the prospect that the then-existing temporary appropriations measure
for the Federal Trade Commission (FTC) would expire in April, 1980,
without extension, and that the FTC might consequently be left with­
out appropriations for a significant period.2 The FTC did not then
suggest that it possesses obligational authorities that are free from a
one-year time limitation. Neither did it suggest, based on its interpreta­
tion o f the law at that time, that the FTC performs emergency func­
tions involving the safety of human life or the protection of property
other than protecting government property within the administrative
control o f the FT C itself. Consequently, the legal questions that the
April 25, 1980, opinion addressed were limited. Upon determining that
the blanket prohibition expressed in § 665(a) against unauthorized obli­
gations in advance of appropriations is to be applied as written, the
opinion added only that the Antideficiency Act does permit agencies
that are ceasing their functions to fulfill certain legal obligations con­
nected with the orderly termination o f agency operations.3 The opinion
did not consider the more complex legal questions posed by a general
congressional failure to enact timely appropriations, or the proper
course of action to be followed when no prolonged lapse in appropria­
tions in such a situation is anticipated.
T he following analysis is directed to those issues. Under the terms of
the Antideficiency Act, the authorities upon which the government
may rely for the continuance of functions despite a lapse in appropria­
tions implicates tw o fundamental questions. Because the proscription of
§ 665(a) excepts obligations in advance of appropriations that are “au­
thorized by law,” it is first necessary to consider which functions this
exception comprises. Further, given that § 665(b) expressly permits the
2 F T C actually sustained less than a one-day lapse in appropriations between the expiration, on
April 30, 1980, of a transfer of funds for its use, Pub. L No. 96-219, 94 Stat. 128 (Mar. 28, 1980), and
the enactm ent, on May I, 1980, of an additional transfer. Pub. L. No. 96-240, 94 Stat. 342. Prior to
April 30, however, it appeared likely that a protracted congressional dispute concerning the terms of
the F T C ’s eventual authorization, Pub. L. No. 96-252, 94 Stat. 374 (May 28, 1980), would precipitate
a lapse in appropriations for a significantly longer penod.
9 See note 11, infra.
2
government to employ the personal service of its employees in “cases
of emergency involving the safety o f human life or the protection of
property,” it is necessary to determine how this category is to be
construed. I shall address these questions in turn, bearing in mind that
the most useful advice concerning them must be cast chiefly in the
form of general principles. The precise application of these principles
must, in each case, be determined in light of all the circumstances
surrounding a particular lapse in appropriations.
I.
Section 665(a) o f Title 31, United States Code provides:
No officer or employee of the United States shall make or
authorize an expenditure from or create or authorize an
obligation under any appropiation or fund in excess of the
amount available therein; nor shall any officer or employee
involve the Government in any contract or obligation, for the
payment o f money fo r any purpose, unless such contract or
obligation is authorized by law. (Emphasis added.)
Under the language of § 665(a) emphasized above, it follows that,
when an agency’s regular appropriation lapses, that agency may not
enter contracts or create other obligations unless the agency has legal
authority to incur obligations in advance of appropriations. Such au­
thority, in some form, is not uncommon in the government. F or exam­
ple, notwithstanding the lapse of regular appropriations, an agency may
continue to have available to it particular funds that are subject to a
multi-year or no-year appropriation. A lapse in authority to spend funds
under a one-year appropriation would not affect such other authorities.
13 Op. A tt’y Gen. 288, 291 (1870).
A more complex problem of interpretation, however, may be pre­
sented with respect to obligational authorities that are not manifested in
appropriations acts. In a few cases, Congress has expressly authorized
agencies to incur obligations without regard to available appropria­
tions.4 More often, it is necessary to inquire under what circumstances
statutes that vest particular functions in government agencies imply
authority to create obligations for the accomplishment of those func­
tions despite the lack of current appropriations. This, of course, would
be the relevant legal inquiry even if Congress had not enacted the
Antideficiency Act; the second phrase of § 665(a) clearly does no more
than codify what, in any event and not merely during lapses in appro­
priations, is a requirement o f legal authority for the obligation of public
funds.5
•See, e.g.. 25 U.S.C. § 99; 31 U S.C. § 668; 41 U.S.C. § II.
5This rule has, in fact, been expressly enacted in some form for 160 of the 191 years since Congress
first convened. The Act o f May 1, 1820, provided:
[N]o contract shall hereafter be made by the Secretary of State, or of the Treasury, or
Continued
3
Previous Attorneys General and the Comptrollers General have had
frequent occasion to address, directly or indirectly, the question of
implied authority. Whether the broader language of all o f their opinions
is reconcilable may be doubted, but the conclusions of the relevant
opinions fully establish the premise upon which my April 25, 1980,
memorandum to you was based: statutory authority to incur obligations
in advance of appropriations may be implied as well as express, but
may not ordinarily be inferred, in the absence of appropriations, from
the kind o f broad, categorical authority, standing alone, that often
appears, for example, in the organic statutes o f government agencies.
The authority must be necessarily inferrable from the specific terms of
those duties that have been imposed upon, or of those authorities that
have been invested in, the officers or employees purporting to obligate
funds on behalf of the United States. 15 Op. A tt’y Gen. 235, 240 (1877).
Thus, for example, w hen Congress specifically authorises contracts
to be entered into for the accomplishment o f a particular purpose, the
delegated officer may negotiate such contracts even before Congress
appropriates all the funds necessary for their fulfillment. E.g., 30 Op.
A tt’y Gen. 332, 333 (1915); 30 Op. A tt’y Gen. 186, 193 (1913); 28 Op.
A tt’y Gen. 466, 469-70 (1910); 25 Op. A tt’y Gen. 557, 563 (1906). On
the other hand, when authority for the performance of a specific
function rests on a particular appropriation that proves inadequate to
the fulfillment of its purpose, the responsible officer is not authorized to
obligate further funds for that purpose in the absence of additional
appropriations. 21 Op. A tt’y Gen. 244, 248-50 (1895); 15 Op. A tt’y
Gen. 235, 240 (1877); 9 O p. A tt’y Gen. 18, 19 (1857); 4 Op. A tt’y Gen.
600, 601-02 (1847); accord, 28 Comp. Gen. 163, 165-66 (1948).
This rule prevails even though the obligation of funds that the official
contemplates may be a reasonable means for fulfilling general responsi­
o f the D epartm ent of War, o r of the Navy, except under a law authorizing the same,
or under an appropriation adequate to its fulfillment.
3 Stat. 567, 568. T he A ct of March 2, 1861, extended the rule as follows:
N o contract or purchase on behalf of the United States shall be made unless the same
is authorized by law or is under an appropriation adequate to its fulfillment, except in
the W ar and Navy Departments, for clothing, subsistence, forage, fuel, quarters, or
transportation, which, however, shall not exceed the necessities o f the current year.
12 Stat. 214, 220. Congress reiterated the ban on obligations in excess of appropriations by enacting
the Antideficiency A ct in 1870:
[I]t shall not be lawful for any department o f the government to expend in any one
fiscal year any sum in excess of appropriations made by Congress for that fiscal year,
o r to involve the government in any contract for the future payment of money in
excess o f appropriations
A ct o f July 12, 1870, ch. 251, §7, 16 Stat. 230, 251. Congress substantially reenacted this provision in
1905, adding the proviso “unless such contract or obligation is authorized by law,” Act of March 3,
1905, ch. 1484, § 4, 33 Stat. 1214, 1257, and reenacted it again in 1906, Act of Feb. 27, 1906, ch. 510,
§ 3, 34 Stat. 27, 48. Section 665(a) o f Title 31, United States Code, enacted in its current form in 1950,
A ct o f Sept. 6, 1950, Pub. L. No 81-759, § 1211, 64 Stat. 595, 765, is substantially the same as these
earlier versions, except that, by adding an express prohibition against unauthorized obligations “in
advance o f ’ appropriations to the prohibition against obligations “in excess o f ’ appropriations, the
m odern version indicates even m ore forcefully Congress’ intent to control the availability of funds to
governm ent officers and employees.
4
bilities that Congress has delegated to the official in broad terms, but
without conferring specific authority to enter into contracts or other­
wise obligate funds in advance of appropriations. For example, Attorney
General McReynolds concluded, in 1913, that the Postmaster General
could not obligate funds in excess of appropriations for the employment
of temporary and auxiliary mail carriers to maintain regular service,
notwithstanding his broad authorities for the carrying of the mails.
30 Op. A tt’y Gen. 157, 161 (1913). Similarly, in 1877, Attorney General
Devens concluded that the Secretary of War could not, in the absence
of appropriations, accept “contributions” of materiel for the army, e.g.,
ammunition and medical supplies, beyond the Secretary’s specific au­
thorities to contract in advance of appropriations. 15 Op. A tt’y Gen.
209, 211 (1877).6
Ordinarily, then, should an agency’s regular one-year appropriation
lapse, the “authorized by law” exception to the Antideficiency A ct
would permit the agency to continue the obligation of funds to the
extent that such obligations are: (1) funded by moneys, the obligational
authority for which is not limited to one year, e.g„ multi-year appro­
priations; (2) authorized by statutes that expressly permit obligations in
advance of appropriations; or (3) authorized by necessary implication
from the specific terms of duties that have been imposed on, or of
authorities that have been invested in, the agency.7 A nearly govern-
ment-wide lapse, however, such as occurred on October 1, 1980, impli­
cates one further question of executive authority.
Unlike his subordinates, the President performs not only functions
that are authorized by statute, but functions authorized by the Constitu­
tion as well. T o take one obvious example, the President alone, under
Article II, § 2, clause 1 of the Constitution, “shall have Power to grant
Reprieves and Pardons for Offenses against the United States, except in
Cases of Impeachment.” Manifestly, Congress could not deprive the
President of this power by purporting to deny him the minimum
6Accord, 37 Comp. Gen. 155, 156 (1957) (Atomic Energy Commission’s broad responsibilities under
the Atomic Energy Act do not authorize it to enter into a contract for supplies or services to be
furnished in a fiscal year subsequent to the year the contract is made); 28 Comp. Gen. 300, 302 (1948)
(Treasury Departm ent’s discretion to establish reasonable compensation for Bureau of the Mint
employees does not confer authority to grant wage increases that would lead to a deficiency).
7 It was on this basis that I determined, in approving the September 30, 1980, memorandum, that the
responsible departments are “authorized by law” to incur obligations in advance of appropriations for
the administration o f benefit payments under entitlement programs when the funds for the benefit
payments themselves are not subject to a one-year appropriation. Certain so-called “entitlement
programs,” e.g., Old-Age and Survivors Insurance, 42 U S.C § 401(a), are funded through trust funds
into which a certain portion of the public revenues are automatically appropriated Notwithstanding
this method of funding the entitlement payments themselves, the costs connected with the administra­
tion of the trust funds are subject to annual appropriations. 42 U.S.C. § 401(g). It might be argued that
a lapse in administrative authority alone should be regarded as expressing Congress’ intent that benefit
payments also not continue. The continuing appropriation of funds for the benefit payments them­
selves, however, substantially belies this argument, especially when the benefit payments are to be
rendered, at Congress’ direction, pursuant to an entitlement formula. In the absence of a contrary
legislative history to the benefit program or affirmative congressional measures to terminate the
program, I think it proper to infer authority to continue the administration of the program to the
extent of the remaining benefit funding.
5
obligational authority sufficient to carry this power into effect. Not all
of the President’s powers are so specifically enumerated, however, and
the question must consequently arise, upon a government-wide lapse in
appropriations, whether the Antideficiency A ct should be construed as
depriving the President o f authority to obligate funds in connection
with those initiatives that would otherwise fall within the President’s
powers.
In my judgm ent, the Antideficiency A ct should not be read as neces­
sarily precluding exercises o f executive power through which the Presi­
dent, acting alone or through his subordinates, could have obligated
funds in advance o f appropriations had the Antideficiency A ct not been
enacted. With respect to certain of the President’s functions, as illus­
trated above, such an interpretation could raise grave constitutional
questions. It is an elementary rule that statutes should be interpreted, if
possible, to preclude constitutional doubts, Crowell v. Benson, 285 U.S.
22, 62 (1932), and this rule should surely be followed in connection
w ith a broad and general statute, such as 31 U.S.C. § 665(a), the history
o f which indicates no congressional consideration at all of the desirabil­
ity of limiting otherwise constitutional presidential initiatives. The
President, o f course, cannot legislate his own obligational authorities;
the legislative power rests w ith Congress. As set forth, however, in Mr.
Justice Jackson’s seminal concurring opinion in Youngstown Sheet &
Tube Co. v. Sawyer, 343 U.S. 579, 635 (1952):
The actual art o f governing under our Constitution
does not and cannot conform to judicial definitions of the
pow er of any of its branches based on isolated clauses or
even single Articles torn from context. While the Consti­
tution diffuses power the better to secure liberty, it also
contemplates that practice will integrate the dispersed
powers into a workable government. It enjoins upon its
branches separateness but interdependence, autonomy but
reciprocity. Presidential powers are not fixed but fluctu­
ate, depending on their disjunction or conjunction with
those of Congress.
F ollow ing8 this reasoning, the Antideficiency A ct is not the only
source o f law or the only exercise of congressional power that must be
weighed in determining w hether the President has authority for an
initiative that obligates funds in advance of appropriations. The Presi­
dent’s obligational authority may be strengthened in connection with
initiatives that are grounded in the peculiar institutional powers and
“A m ajority o f the Supreme Court has repeatedly given express endorsement to Mr. Justice
Jackson’s view o f the separation of powers. Nixon v. Administrator o f General Services, 433 U.S. 425,
443 (1977); Buckley v. Valeo. 424 U.S. 1, 122 (1976); United States v. Nixon, 418 U.S. 683, 707 (1974);
Old Dominion Branch No. 496, National Association o f Letter Carriers v. Austin, 418 U.S. 264, 273 n.5
(1974).
6
competency o f the President. His authority will be further buttressed in
connection with any initiative that is consistent with statutes—and thus
with the exercise o f legislative power in an area of concurrent author­
ity—that are more narrowly drawn than the Antideficiency A ct and
that would otherwise authorize the President to carry out his constitu­
tionally assigned tasks in the manner he contemplates. In sum, with
respect to any presidential initiative that is grounded in his constitu­
tional role and consistent with statutes other than the Antideficiency
Act that are relevant to the initiative, the policy objective of the
Antideficiency A ct must be considered in undertaking the initiative, but
should not alone be regarded as dispositive of the question of authority.
Unfortunately, no catalogue is possible of those exercises of presiden­
tial power that may properly obligate funds in advance of appropria­
tions.9 Clearly, such an exercise of power could most readily be justi­
fied if the functions to be performed would assist the President in
fulfilling his peculiar constitutional role, and Congress has otherwise
authorized those or similar functions to be performed within the control
of the President.10 Other factors to be considered would be the urgency
of the initiative and the likely extent to which funds would be obligated
in advance o f appropriations.
In sum, I construe the “authorized by law” exception contained
within 31 U.S.C. § 665(a) as exempting from the prohibition enacted by
the second clause of that section not only those obligations in advance
of appropriations for which express or implied authority may be found
in the enactments of Congress, but also those obligations necessarily
incident to presidential intiatives undertaken within his constitutional
powers.
II.
In addition to regulating generally obligations in advance o f appro­
priations, the Antideficiency A ct further provides, in 31 U.S.C.
§ 665(b):
No officer or employee of the United. States shall accept
voluntary service for the United States or employ per­
9As stated by Attorney General (later Justice) Murphy:
[T]he Executive has powers not enumerated in the statutes—powers derived not from
statutory grants but from the Constitution. It is universally recognized that the consti­
tutional duties o f the Executive carry with them constitutional powers necessary for
their proper performance. These constitutional powers have never been specifically
defined, and in fact cannot be, since their extent and limitations are largely dependent
upon conditions and circumstances. In a measure this is true with respect to most of
the powers o f the Executive, both constitutional and statutory. T he right to take
specific action might not exist under one state of facts, while under another it might be
the absolute duty of the Executive to take such action.
39 Op. A tt’y Gen. 343, 347-48 (1939).
10One likely category into which certain of these functions would fall would be Mthe conduct of
foreign relations essential to the national security,*’ referred to in the September 30, 1980, memoran­
dum.
7
sonal service in excess o f that authorized by law, except
in cases o f emergency involving the safety of human life
or the protection o f property.
Despite the use of the term “voluntary service,” the evident concern
underlying this provision is not government agencies’ acceptance of the
benefit of services rendered without compensation. Rather, the original
version of § 665(b) was enacted as part of an urgent deficiency appro­
priation act in 1884, A ct of May 1, 1884, ch. 37, 23 Stat. 15, 17, in
order to avoid claims for compensation arising from the unauthorized
provision o f services to the government by non-employees, and claims
for additional compensation asserted by government employees per­
forming extra services after hours. That is, under § 665(b), government
officers and employees may not involve the government in contracts
for employment, i.e., for compensated labor, except in emergency
situtations. 30 Op. Att’y Gen. 129, 131 (1913).
U nder § 665(b), it is thus crucial, in construing the government’s
authority to continue functions in advance o f appropriations, to inter­
pret the phrase “emergencies involving the safety of human life or the
protection of property.” A lthough the legislative history of the phrase
sheds only dim light on its precise meaning, this history, coupled with
an administrative history— of which Congress is fully aware—of the
interpretation o f an identical phrase in a related budgeting context,
suggests two rules for identifying those functions for which government
officers may employ personal services for compensation in excess of
legal authority other than § 665(b) itself. First, there must be some
reasonable and articulable connection between the function to be per­
formed and the safety o f human life or the protection of property.
Second, there must be some reasonable likelihood that the safety of
human life or the protection of property would be compromised, in
some degree, by delay in the performance of the function in question.
As originally enacted in 1884, the provision forbade unauthorized
employment “except in cases of sudden emergency involving the loss of
human life or the destruction of property.” 23 Stat. 17. (Emphasis
added.) The clause was added to the House-passed version of the
urgent deficiency bill on the floor of the Senate in order to preserve the
function o f the government’s “life-saving stations.” One Senator cau­
tioned:
In other words, at the life-saving stations of the United
States, for instance, the officers in charge, no m atter what
the urgency and w hat the emergency might be, would be
prevented [under the House-passed bill] from using the
absolutely necessary aid which is extended to them in
such cases because it had not been provided for by law in
a statute.
8
15 Cong. Rec. 2,143 (1884) (remarks of Sen. Beck); see also id. at 3,410-
11 (remarks o f Rep. Randall). This brief discussion confirms what the
originally enacted language itself suggests, namely, that Congress ini­
tially contemplated only a very narrow exception to what is now
§ 665(b), to be employed only in cases of dire necessity.
In 1950, however, Congress enacted the modern version of the
Antideficiency Act and accepted revised language for 31 U.S.C.
§ 665(b) that had originally been suggested in a 1947 report to Congress
by the Director of the Bureau of the Budget and the Comptrollex
General. Without elaboration, these officials proposed that “cases o f
sudden emergency” be amended to “cases of emergency,” “loss o f
human life” to “safety of human life,” and “destruction of property” to
“protection of property.” These changes were not qualified or ex­
plained by the report accompanying the 1947 recommendation or by
any aspect o f the legislative history of the general appropriations act
for fiscal year 1951, which included the modern § 665(b). A ct of Sep­
tember 6, 1950, Pub. L. No. 81-759, § 1211, 64 Stat. 765. Consequently,
we infer from the plain import of the language of their amendments
that the drafters intended to broaden the authority for emergency
employment. In essence, they replaced the apparent suggestion of a
need to show absolute necessity with a phrase more readily suggesting
the sufficiency of a showing of reasonable necessity in connection with
the safety of human life or the protection of property in general.
This interpretation is buttressed by the history of interpretation by
the Bureau of the Budget and its successor, the Office of Management
and Budget, of 31 U.S.C. § 665(e), which prohibits the apportionment
or reapportionment of appropriated funds in a manner that would
indicate the need for a deficiency or supplemental appropriation, except
in, among other circumstances, “emergencies involving the safety of
human life, [or] the protection of property.” § 665(e)(1)(B).11 Directors
11 As provisions containing the same language, enacted at the same time, and aimed at related
purposes, the emergency provisions of §§ 665(b) and 665(e)(1)(B) should not be deemed in pan materia
and given a like construction, Northcross v. Memphis Board o f Education, 412 U.S. 427, 428 (1973),
although at first blush, it may appear that the consequences of identifying a function as an “emer­
gency" function may differ under the two provisions. Under § 665(b), if a function is an emergency
function, then a federal officer or employee may employ w hat otherwise would constitute unauthor­
ized personal service for its performance; in this sense, the emergency nature of the function triggers
additional obligational authority for the government. In contrast, under § 665(e)(lXB), if a function is
an emergency function, OMB may allow a deficiency apportionment or reapportionment—this permit­
ting the expenditure of funds at a rate that could not be sustained for the entire fiscal year without a
deficiency—but the effect of such administrative action would not be to trigger new obligational
authority automatically. That is, Congress could always decline to enact a subsequent deficiency
appropnation, thus keeping the level of spending at the previously appropriated level.)
This distinction, however, is outweighed by the common -practical effect of the tw o provisions,
namely, that when authority is exercised under either emergency exception, Congress, in order to
accomplish all those functions it has authorized, must appropriate more money. If, after a deficiency
apportionment or reapportionment, Congress did not appropriate additional funds, its purposes would
be thwarted to the extent that previously authorized functions could not be continued until the end of
the fiscal year. This fact means that, although deficiency apportionments and reapportionments do not
create new obligational authority, they frequently impose a necessity for further appropnations as
Continued
9
o f the Bureau o f the Budget and o f the Office of Management and
Budget have granted dozens of deficiency reapportionments under this
subsection in the last 30 years, and have apparently imposed no test
m ore stringent than the articulation of a reasonable relationship be­
tween the funded activity and the safety of human life or the protection
of property. Activities for which deficiency apportionments have been
granted on this basis include Federal Bureau o f Investigation criminal
investigations, legal services rendered by the Department of Agricul­
ture in connection with state meat inspection programs and enforce­
ment o f the Wholesome M eat Act o f 1967, 21 U.S.C. §§601-695, the
protection and management of commodity inventories by the Commod­
ity Credit Corporation, and the investigation o f aircraft accidents by
the National Transportation Safety Board. These few illustrations dem­
onstrate the common sense approach that has guided the interpretation
o f § 665(e).12 Most important, under § 665(e)(2), each apportionment or
reapportionment indicating the need for a deficiency or supplemental
appropriation has been reported contemporaneously to both Houses of
Congress, and, in the face o f these reports, Congress has not acted in
any way to alter the relevant 1950 wording of § 665(e)(1)(B), which is,
in this respect, identical to § 665(b).13
It was along these lines that I approved, for purposes of the im­
mediate crisis, the categories of functions that the Director of the
Office o f Management and Budget included in his September 30, 1980,
memorandum, as illustrative of the areas of government activity in
which emergencies involving the safety of human life and the protec­
compelling as the government's employment of personal services in an emergency in advance of
appropriations. There is thus no genuine reason for ascribing, as a matter of legal interpretation,
greater or lesser scope to one emergency provision than to the other.
12 In my April 25, 1980, memorandum to you, I opined that the Antideficiency Act permits
departm ents and agencies to terminate operations, upon a lapse in appropriations, in an orderly way.
43 Op. A tt'y Gen No. 24, at 1 [4 Op. O .L C .—(1980)]. The functions that, in my judgment, the
orderly shutdow n o f an agency for an indefinite period or permanently would entail include the
emergency protection, under § 665(b), o f the agency's property by its own employees until such
protection can be arranged by another agency with appropriations; compliance, within the “authorized
by law ” exception to § 665(a), with statutes providing for the rights o f employees and the protection
o f governm ent information; and (he transfer, also under the “authorized by law” exception to § 665(a),
o f any matters within the agency's jurisdiction that are also under the jurisdiction o f another agency
that Congress has funded and thus indicated its intent to pursue. Compliance with the spirit, as well as
the letter, o f the Antideficiency Act requires that agencies incur obligations for these functions in
advance of appropriations only to the minimum extent necessary to the fulfillment o f their legal duties
and with the end in mind o f terminating operations for some substantial period It would hardly be
prudent, much less consistent with the spirit of the Antideficiency Act, for agencies to incur obliga­
tions. in advance o f appropriations in connection with “shutdown functions” that would only be
justified by a more substantia] lapse in appropriations than the agency, in its best judgment, expects.
13T he Supreme C ourt has referred repeatedly to the-
venerable rule that the construction of a statute by those charged with its execution
should be followed unless there are compelling indications that it is wrong, especially
when Congress has refused to alter the administrative construction.
R ed Lion Broadcasting Co. v. FCC, 395 U.S. 367, 381 (1969) (footnotes omitted). Since enacting the
modern Antideficiency A ct, including § 665(e)(1)(B), in 1950, Congress has amended the act three
times, including one amendment to another aspect o f § 665(e). At no time has Congress altered this
interpretation o f §665(eXl)(B) by the Office of Management and Budget, which has been consistent
and is consistent with the statute. Compare 43 Op. A tt'y Gen. No. 24, 4 Op. O.L.C. 16.(1980).
10
tion of property might arise. To erect the most solid foundation for the
Executive Branch’s practice in this regard, I would recommend that, in
preparing contingency plans for periods of lapsed appropriations, each
government department or agency provide for the Director of the
Office of Management and Budget some written description, that could
be transmitted to Congress, of what the head of the agency, assisted by
its general counsel, considers to be the agency’s emergency functions.
In suggesting the foregoing principles to guide the interpretation of
§ 665(b), I must add my view that, in emergency circumstances in
which a government agency may employ personal service in excess o f
legal authority other than § 665(b), it may also, under the authority o f
§ 665(b), it may also, under the authority of § 665(b), incur obligations
in advance o f appropriations for material to enable the employees
involved to meet the emergency successfully. In order to effectuate the
legislative intent that underlies a statute, it is ordinarily inferred that a
statute “carries with it all means necessary and proper to carry out
effectively the purposes of the law.” United States v. Louisiana, 265 F.
Supp. 703, 708 (E.D. La. 1966) (three-judge court), a ffd , 386 U.S. 270(1967). Accordingly, when a statute confers authorities generally, those
powers and duties necessary to effectuate the statute are implied. See
2A J. Sutherland, Statutes and Statutory Construction § 55.04 (Sands
ed. 1973). Congress has contemplated expressly, in enacting § 655(b),
that emergencies will exist that will justify incurring obligations for
employee compensation in advance of appropriations; it must be as­
sumed that, when such an emergency arises, Congress would intend
those persons so employed to be able to accomplish their emergency
functions with success. Congress, for example, having allowed the gov­
ernment to hire firefighters must surely have intended that water and
firetrucks would be available to them .14
III.
The foregoing discussion articulates the principles according to
which, in my judgment, the Executive can properly identify those
functions that the government may continue upon lapses in appropria­
tions. Should a situation again present itself as extreme as the emer­
gency that arose on October 1, 1980, this analysis should assist in
guiding planning by all departments and agencies of the government.
As the law is now written, the Nation must rely initially for the
efficient operation of government on the timely and responsible func­
tioning of the legislative process. The Constitution and the
14 Accord, 53 Comp. Gen. 71 (1973), holding that, in light of a determination by the Administrator
of General Services that such expenses were “ necessarily incidental to the protection of property of
the United States during an extreme emergency,” id. at 74, the Comptroller Genera) would not
question General Services Administration (GSA) payments for food for GSA special police who were
providing round-the-clock protection for a Bureau of Indian Affairs building that had been occupied
without authority.
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Antideficiency A ct itself leave the Executive leeway to perform essen­
tial functions and make the government “workable.” Any inconvenience
that this system, in extreme circumstances, may bode is outweighed, in
my estimation, by the salutary distribution of power that it embodies.
Respectfully,
B e n j a m i n R. C iv il e t t i
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