Note: The Cloying Use of Unallotment: Curbing Executive Branch Appropriation Reductions During Fiscal Emergencies

By Tyler J. Siewert. Full text here.

To ensure the perpetuation of balanced budgets, which are legal and practical requirements in forty-nine states, many state legislatures bestow upon the executive branch broad powers to reduce appropriations through unallotment statutes. The Note accentuates two dire legal inefficiencies plaguing an ample number of these laws. First, many statutes fail to discernibly limit the proper time frame in which the executive branch may reduce appropriations. Second, many statutes delegate the discretionary capacity to choose which appropriations to reduce, violating their states’ respective nondelegation doctrine. In May 2010, these two pressing deficiencies rose to the forefront before the Minnesota Supreme Court in Brayton v. Pawlenty. Although the court correctly acknowledged the ambig­uous temporal limitation of Minnesota’s unallotment statute when it held Governor Tim Pawlenty’s unallotments procedur­ally void, it failed to address the constitutional issue.

As state courts continue to assess the procedural and sub­stantive validity of executive branch appropriation reductions, the transpiring legal precedents become more conflicting. This emerging state-court split reflects the idiosyncrasies of respective state budgetary and unallotment laws, but it even more precisely illustrates the confusion over what exactly the legislature has delegated—its appropriations power or the power to ensure fiscal solvency. The Note argues that because balanced-budget provisions are generally laws requiring the executive branch’s faithful execution, the legislature has no capacity to delegate such authority. Accordingly, unallotment laws delegate the legislature’s prerogative to reduce appropriations and, therefore, must describe clear guiding standards to comport with the nondelegation doctrine. The Note, as a result, requests that state legislatures both evaluate their respective unallotment laws and consider the model statute prescribed in the Note. The model statute underscores governmental efficiency while still venerating the doctrine of separation of powers by clearly articulating temporal limitations and implementing a system to curb the executive branch’s authority to reduce appropriations during fiscal emergencies.