Samuel R. Bagenstos (University of Michigan Law School) has posted “Slush Funds” and Congress’s Power of the Purse on SSRN. Here is the abstract:
If there’s one point on which everyone agrees in appropriations law, it’s that “slush funds” are bad. In the appropriations context, people tend to use the term to refer to financing mechanisms that enable the Executive Branch to evade the usual congressional checks on spending — either because they enable spending to occur without being fully accounted for in the federal budget, or because they enable spending to occur without congressional approval at all.
From both the left and the right, critics of particular financing schemes accuse them of being slush funds. To right-leaning critics, both the Consumer Financial Protection Board and President Biden’s student loan forgiveness program were impermissible slush funds. And left-leaning critics have applied the slush fund label to President Trump’s efforts to fund the border wall, his seizure and sale of Venezuelan oil, his university settlements, his “Board of Peace,” his efforts to shield some farmers from the effects of his tariffs, and many more. Slush funds seem to directly challenge Congress’s constitutional power of the purse. But there is great disagreement over what constitutes a slush fund. And once we start digging, we can see that many deeply entrenched appropriations practices have some of the same key aspects as do the financing schemes that have attracted the pejorative label.
This paper examines the variety of arrangements that may be characterized as slush funds. Doing so can help us understand why Congress has found delegation to the Executive Branch in the appropriations sphere so essential to achieving the tasks that the electorate wants the government to carry out. But it can also help us assess what sorts of delegation should raise greater or lesser concerns. And it can help us determine when courts should be deciding these questions and when the other branches should be thinking about these issues in a constitutional register. This paper undertakes that analysis.
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