The "Power of The Purse" With A $94 Billion Hole: The Legal Basis and Constitutional Implications of "Black Budget" Appropriations

The “Power of the Purse” with a $94 Billion Hole:
The Legal Basis and Constitutional Implications of “Black Budget” Appropriations
Jordan E. Gall
LAW 9400: National Security Law Seminar
Prof. Steven R. Swanson
Jordan Gall
I. INTRODUCTION .......................................................................................................................... 1
II. BACKGROUND ........................................................................................................................... 3
A. THE BLACK BUDGET .................................................................................................................... 3
1. Origins......................................................................................................................................3
2. Still Hiding in Plain Sight .......................................................................................................4
3. Legal Basis ............................................................................................................................... 6
a. The CIA Black Budget ....................................................................................................... 6
i. The Central Intelligence Agency Act .............................................................................. 6
ii. Congressional Oversight ................................................................................................. 8
b. General Classification Law ............................................................................................. 11
i. Who has Authority to Classify? .................................................................................... 11
ii. How Information is Classified ...................................................................................... 13
iii. Appellate Review .......................................................................................................... 14
iv. Congressional Oversight .............................................................................................. 16
B. CONSTITUTIONAL DIMENSIONS .................................................................................................. 18
1. Plain Text ............................................................................................................................... 18
2. Drafting and Ratification History ......................................................................................... 19
a. The Appropriations Clause ............................................................................................. 19
b. The Account Clause ......................................................................................................... 20
C. OBSTACLES TO JUDICIAL ENFORCEMENT .................................................................................. 24
1. Article III Standing ............................................................................................................... 24
a. Taxpayer or Citizen Standing ......................................................................................... 24
b. Standing Ancillary to FOIA Suits................................................................................... 26
c. Servicemember Standing ................................................................................................. 27
d. Congressmember Standing ............................................................................................. 28
2. Political Question Doctrine ................................................................................................... 32
a. The Doctrine Generally ................................................................................................... 32
b. Political Question Doctrine and the Black Budget ........................................................ 34
III. ANALYSIS .................................................................................................................................35
A. BLACK BUDGET APPROPRIATIONS DO NOT VIOLATE THE APPROPRIATIONS CLAUSE ................ 36
B. BLACK BUDGET APPROPRIATIONS VIOLATE THE ACCOUNT CLAUSE ......................................... 39
1. The Account Clause’s Plain Text Reveals a Public Right ................................................... 39
2. Constitutional Context Reveals a Public Right .................................................................... 39
3. Drafting History Reveals an Intended Public Right ............................................................ 40
4. Ratification Debates Reveal an Intended Public Right........................................................ 40
5. Ratification Debates Reveal an Intended Duty of Congress, not to Congress .................... 42
6. Black Budgets Violate the Account Clause .......................................................................... 43
C. NO JUDICIAL REMEDY EXISTS ................................................................................................... 44
1. Citizens Have No Standing to Enforce the Account Clause ................................................ 44
2. Taxpayers Have No Standing to Enforce the Account Clause ............................................ 45
3. Servicemembers Have No Standing to Enforce the Account Clause .................................. 46
4. Congressmembers Have No Standing to Enforce the Account Clause ............................... 47
5. Political Question Doctrine Would Probably Bar Account Clause Merits ......................... 49
VI. CONCLUSION .......................................................................................................................... 51
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I. INTRODUCTION
“There is one interesting and important thing I can tell you. [The Advanced Cruise Missile project]
is a procurement disaster. The ACM is the worst of the programs the Committee has looked at. …
Why? Because of classification the reasons will have to remain sketchy, almost nonexistent.”
– U.S. Representative Les Aspin, Chairman of the House Armed Services Committee 1
“The Pentagon‟s $36 billion black budget is a license to steal.”

– U.S. Representative Patricia Schroeder, Member, House Armed Services Committee 2
“A popular government without popular information, or the means of

acquiring it, is but a prologue to a farce, or a tragedy, or perhaps both.”
– James Madison, the “Father of the Constitution”3
“Follow the money.”4 This timeless adage, though originating from a highly fictionalized
version of “Deep Throat” informant William Mark Felt in the film All the President‟s Men,5 has
become engrained in the American popular consciousness to embody a universal truth that has
always driven the success of investigator and journalist alike in unearthing wide varieties of
governmental misconduct and corruption such as the familiar Whiskey Ring, Teapot Dome,
Watergate, Iran-Contra, Keating Five, Whitewater, Jack Abramoff, and everything in between: any
concerted effort by more than a few individuals will inevitably entail expenditures, and
expenditures leave a record that cannot lie. This centrality of financial accountability to restraining
executive power prompted Parliament to seize and utilize the “power of the purse” as a check on the
Crown beginning over three centuries ago,6 and explains the Framers‟ decision to make clear in the
Constitution that the Executive may only expend public funds specifically appropriated by Congress
and that the federal government must periodically publish a public accounting of all such
expenditures.7 Given this constitutional mandate and nothing more, one might be surprised to find
that every proposed budget the Department of Defense (“DOD”) annually submits to Congress
through fiscal year 2010 conspicuously leaves blank entire line items of procurements and
operational expenses.8 The upshot of this fiscal sleight of hand is that the DOD actually receives an
amount far in excess of the amount for which it publicly accounts, creating a so-called “black
budget” nearing approximately $50 billion dollars in the 2010 fiscal year, or $1585 per second.9
This does not even take into account the black budget of the CIA, which has statutory authority to
1
REP. LES ASPIN, ACQUIRING STRATEGIC WEAPONS: ARE WORKING NUKES JUST FLUKES? (June 1988) (quoted in TIMOTHY WEINER,
BLANK CHECK: THE PENTAGON‟S BLACK BUDGET 10 (Warner Books, 1990)).
2
Weiner, supra note 1, at 1.
3
Letter to W. T. Barry, Aug. 4, 1822 (quoted in STEPHEN DYCUS ET AL, NATIONAL SECURITY LAW 975 (Aspen Publishers, 2007)).
4
RALPH KEYES, THE QUOTE VERIFIER: WHO SAID WHAT, WHERE, AND WHEN 65-66 (St. Martin‟s Griffin, 1st ed. 2006).
5
Id.
6
See infra notes 190-193, 210-212 and accompanying text.
7
U.S. CONST. art. I, § 9, cl. 7; see also infra notes 190-242 and accompanying text (discussing drafting and ratification history pertinent to
that clause).
8
See infra notes 43-56 and accompanying text.
9
Noah Shachtman, Pentagon‟s Black Budget Grows to More Than $50 Billion, WIRED (May 7, 2009), available at
http://www.wired.com/dangerroom/2009/05/pentagons-black-budget-grows-to-more-than-50-billion/ (last visited Nov. 17, 2009).
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“siphon” funds from ordinary appropriations without any public trace, leaving its total indiscernible
to the general public,10 but likely a substantial portion of the aggregate intelligence community
budget known to have been nearly $27 billion in the late 1990s11 and some $44 billion as of 2005.12
To put this enormous gap into perspective, the DOD black budget alone amounts to nearly
double the entire operating budget of the Department of Justice,13 slightly exceeds the entire
Department of Education budget,14 approximates half of the entire budget for the state of
California,15 and approximates the entire military budgets of allies like the United Kingdom,
France, or Japan.16 Just under 50 billion seconds have passed since the fall of Rome,17 and roughly
50 billion minutes have passed since homo sapiens migrated from Africa.18 $50 billion could
purchase 70 cubic meters of solid gold (equivalent to a small house)19 or a pile of wheat 125 times
larger in volume than the Great Pyramid of Giza.20 Were you to work for minimum wage 40 hours a
week, it would take you 3,316 millenia to earn what the DOD black budget burns through in a year,
9 millenia to cover just one day, four centuries to cover an hour, and roughly 6 years to cover a
fleeting minute.21 This clearly cannot be dismissed as mere chump change.
On just what is this king‟s ransom spent? That information is, of course, withheld from the
taxpaying public, and reaches such a high level of classification that even Congressmembers‟ access
is limited to a select few under rare and often obstructed circumstances.22 The end result is the
Executive‟s extremely broad discretion in directing these expenditures, and such a lack of
accountability naturally provides a potential breeding ground for waste, corruption, and even secret
wars.23
Are there any legal avenues with which to return the whole of federal budgeting to public
accountability? Part II(A) of this article will briefly outline the origins, nature, and legal basis of the
DOD and CIA black budgets.24 Part II(B) will then examine the text, drafting history, and
ratification history of the Statement and Account Clause (hereinafter “Account Clause”) and
10
11
See Martin H. Redish, The Constitution as Political Structure, 46 J. LEGAL EDUC. 135, 136 (1996); CIA – Frequently Asked Questions,
http://www.umsl.edu/services/govdocs/wofact99/20.htm#3 (last visited Nov. 25, 2009); Statement of the Director of Central Intelligence
Regarding the Disclosure of the Aggregate Intelligence Budget for Fiscal Year 1997 (Oct. 15, 1997),
http://www.fas.org/sgp/foia/victory.html; Statement of the Director of Central Intelligence Regarding the Disclosure of the Aggregate
Intelligence Budget for Fiscal Year 1998 (Mar. 20, 1998), http://www.fas.org/sgp/foia/intel98.html.
12
Scott Shane, Official Reveals Budget for U.S. Intelligence, THE NEW YORK TIMES (Nov. 8, 2005), available at
http://www.nytimes.com/2005/11/08/politics/08budget.html?pagewanted=print (noting an “apparent slip” inadvertently uttered by the
Deputy Director of National Intelligence at a public conference).
13
SENATE APPROPRIATIONS COMMITTEE PRESS OFFICE, SENATE APPROPRIATIONS COMMITTEE CLEARS FISCAL 2009 CJS FUNDING
LEGISLATION (June 20, 2009), http://www.spacecoalition.com/files/Capital_Hill/FY_2009_CSRA_Legislation_Committee_Summary.pdf.
14
Department of Education, Fiscal Year 2010 Budget Summary (May 7, 2009), available at
http://www.ed.gov/about/overview/budget/budget10/summary/edlite-section1.html.
15
California Department of Finance, California State Budget 2009-10, Summary Charts (2009), available at
http://www.ebudget.ca.gov/pdf/Enacted/BudgetSummary/SummaryCharts.pdf.
16
Shachtman, supra note 8.
17
Ralph W. Mathisen, Romulus Augustulus (475-476 A.D.) - Two Views (1997), http://www.roman-emperors.org/auggiero.htm.
18
John Roach, Massive Genetic Study Supports “Out of Africa” Theory, NATIONAL GEOGRAPHIC (Feb. 21, 2008),
http://news.nationalgeographic.com/news/2008/02/080221-human-genetics.html..
19
See Gold Price per Kilo, http://www.goldprice.org/gold-price-per-kilo.html (last visited Nov. 18, 2009).
20
See Wheat Monthly Price, http://www.indexmundi.com/commodities/?commodity=wheat (last visited Nov. 18, 2009).
21
Labor Law Center, Federal Minimum Wage Increase for 2007, 2008, & 2009 (Oct. 14, 2009), http://www.laborlawcenter.com/t-federal-
minimum-wage.aspx (noting the present minimum wage of $7.25).
22
See infra notes 103-113, 171-183 and accompanying text.
23
See infra note 86 and accompanying text; see also generally Weiner, supra note 1, at 111-214.
24
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Appropriations Clause of the U.S. Constitution.25 Part II(C) will discuss past attempts at judicial
enforcement of these Clauses with respect to the black budget, as well as the general standing and
political question doctrines implicated by such cases.26 Part III(A) will argue that the CIA and DOD
black budgets comply with the Appropriations Clause,27 though Part III(B) will argue that the CIA
black budget technically violates both the letter and intent of the Account Clause, and the DOD
black budget probably does.28 An analysis in Part III(C) will conclude that even assuming arguendo
an Account Clause violation in either case, any attempt to seek a judicial remedy for it would
nonetheless be extremely unlikely to succeed.29
II. BACKGROUND
A. THE BLACK BUDGET
1. Origins
The black budget‟s origins can be traced back to roughly a year after the Constitution‟s
ratification, when President Washington requested appropriation of a fund to “defray[] expenses
incident to the conduct of our foreign affairs,” and Congress concurred with a statute requiring
regular accounting to Congress of expenditures from the so-called “contingent fund” except for
those the President “may think it advisable not to specify.”30 This statute was re-enacted three years
later with altered language allowing the President or Secretary of State to report expenditures from
the fund solely through a “certificate” specifying the total, which would be deemed a “sufficient
voucher” for the sums expended.31 Secrecy in the use of this “contingent fund” became so
institutionalized that by 1846, President Polk went so far as to flatly refuse a House demand for
disclosure of expenditures from the fund,32 effectively extrapolating Washington‟s famed refusal of
negotiation-related documents to even expenses ancillary to foreign relations.33
The “contingent fund,” despite its 158 years of consistent historical practice,34 was very
small and limited in use compared to the behemoth that is the modern DOD black budget, which
can more appropriately be traced to roughly two months before Pearl Harbor, when President
Franklin D. Roosevelt met with MIT Dean of Engineering Vannevar Bush about the theoretical
potential of building an atomic bomb, and explained to Bush that its expected cost of $100 million
25
26
27
28
29
30
Halperin v. CIA, 629 F.2d 144, 158 (1980) (citing 1 Annals of Congress 969-70 (1834); Act of 1 July 1790, 1 Stat. 128 (1790))
31
Id. (citing Act of 9 Feb. 1793, 1 Stat. 299, 300 (1793)). Aside from this long-term “contingent fund,” in a short-term example, Congress in
1811 even passed a $100,000 appropriation so secret that the statute itself was not published until seven years later, by which time the
appropriation‟s purpose, assisting President Madison‟s efforts to obtain possession of parts of Spanish Florida, was already mooted by
significant conquests of land in the First Seminole War. Id. (citing D. MILLER, SECRET STATUTES OF THE U.S. 6 (1918) (quoting statute
enacted 15 January 1811); 3 Stat. 471 (1811) (printed immediately following acts approved on 20 April 1818)).
32
Id. at 159 (citing 4 J. RICHARDSON, MESSAGES AND PAPERS OF THE PRESIDENTS 434, 435 (1897)).
33
See U.S. v. Curtiss-Wright Export Corp., 299 U.S. 304, 320-321 (1936) (discussing the precedent set by Washington‟s refusing the
House‟s demands for “instructions, correspondence and documents relating to the negotiation of the Jay Treaty”). Although Washington
specifically cited the Constitution‟s limitation to the Senate of the power to advise and consent to treaties as the authority to deny House
access to these documents, the episode has since been cited as precedent for general assertions of “executive privilege.” Dycus, supra note 3,
at 90. For an overview of executive privilege doctrine, which lies outside the scope of this article for the sake of brevity, see generally
Archibald Cox, Executive Privilege, 122 U. PA. L. REV. 1383, 1395-1405 (1974).
34
Halperin, 629 F.2d at 158-159 (“The contingent fund remained in continuous use by the President throughout the nineteenth century and
up to the [1947] creation of the CIA.”).
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could be covered by a hidden “special source” in the existing military budget.35 To maintain utmost
secrecy of what would become known as the Manhattan Project, the military used what project
commander General Leslie Groves called some “rather unorthodox…unusual procedures” to keep
both the public and Congress “completely in the dark” about roughly $2.16 billion in project
expenses, particularly by disguising them in inconspicuous line items like “Expediting Production”
that got lost in voluminous war appropriations.36 The concealment from Congress was so
determined that when then-Senator Harry Truman vehemently demanded information about
hundreds of millions of missing dollars that he thought hinted at corrupt war profiteering, these
demands were flatly refused by the Secretary of War Henry Stimson.37 It was not until February
1944 that Stimson and Groves agreed to partial disclosure to Congress, and even this was limited to
a briefing of three senior House members, who themselves agreed to make sure that the rest of the
Congress would not “ask too many questions.”38
After the destruction of Hiroshima and Nagasaki hailed the end of a pressing need to conceal
Manhattan Project expenditures from wartime enemies, the prompt transition into the Cold War
with the Soviet Union ostensibly necessitated concealment of not only technical details regarding
nuclear weapons and other sensitive military technologies, but also expenses relating to them.39 For
several years, the Truman Administration also initially funded the Central Intelligence Group
(“CIG”) and its successor, the Central Intelligence Agency (“CIA”), by “siphoning” from the DOD
budget in a manner that the CIA‟s General Counsel later conceded to have been “technically
illegal.”40 It was not until 1949 that concealment of CIA expenditures was statutorily, if not
constitutionally, legitimized.41
2. Still Hiding in Plain Sight
The methodology used to conceal the DOD black budget has been a deceptively simple step
in the ordinary appropriations process.42 Each year by the first Monday of January, the President is
required by statute to submit to Congress a preliminary statement of the present fiscal year‟s
expenses, broken down by “major programs,” for purposes of estimating what the next year‟s
expenses would be “without a change in policy.”43 Then, by the first Monday of February, another
statute requires the President to submit to Congress a voluminous proposed budget laying out, inter
alia, the estimated costs and proposed appropriations for government programs in the subsequent
fiscal year.44 Congress must then pass an appropriation bill into law with the President‟s signature
35
TIMOTHY WEINER, BLANK CHECK: THE PENTAGON‟S BLACK BUDGET 19 (Warner Books, 1990) (citing Bush‟s memorandum to James B.
Conant, preserved in the Bush-Conant files, Office of Scientific Research and Development, S-1, Record Group 227, National Archives)).
36
Id. at 19-20 (citing LESLIE R. GROVES, NOW IT CAN BE TOLD 359-366 (New York: Harper & Row, 1962)).
37
Id. at 20 (citing HARRY S. TRUMAN, MEMOIRS BY HARRY S. TRUMAN, VOL. 1 20-21 (New York: Signet, 1965)).
38
Id.
39
See generally id. at 24-107.
40
Id. at 114-118; see also CONGRESSIONAL RESEARCH SERVICE, INTELLIGENCE SPENDING: PUBLIC DISCLOSURE ISSUES 5 (Sept. 25, 2006),
available at http://www.au.af.mil/au/awc/awcgate/crs/94-261.pdf.
41
42
43
31 U.S.C. § 1109(a).
44
See 31 U.S.C. § 1105(a), (a)(5), (a)(21)-(22) (requiring, “not later than the first Monday in February of each year,” the President‟s
submission of a budget detailing “estimated expenditures and proposed appropriations the President decides are necessary to support the
Government in the fiscal year for which the budget is submitted,” with a breakdown of “specific aspects of the program of, and
appropriations for, each agency” and “a detailed structure of national needs that refers to the missions and programs of agencies”); but see
Travis Sharp, Fiscal Year 2010 Pentagon Defense Spending Request: February “Topline” 1 (Feb. 26, 2009),
http://www.armscontrolcenter.org/assets/pdfs/feb2009_dod_topline_analysis.pdf (noting a two-month extension to the deadline, in practice,
for an incoming administration that has submitted a short “topline” summary).
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on or before September 30, the last day of the fiscal year,45 or such later date as may be selected by
a “continuing resolution” to keep the government temporarily funded at the same levels as the prior
fiscal year, lest there be a “shutdown” like the two experienced in 1995.46 In addition to this
ordinary annual budget process, statute also requires the Treasury Department to submit to
Congress an annual report on all “public receipts and public expenditures.”47
Upon even cursory review of the President‟s proposed defense budget published during this
process for fiscal year 2009, one notices that many line items with labels ranging from as
straightforward as “classified program” to as cryptic as “selected activities” have corresponding
cost fields conspicuously left blank, most frequently in the procurement portion of the budget listing
equipment the military expects to purchase in the coming year.48 For example, one notorious section
of the Air Force budget routinely labeled “Other Base Maintenance and Support Equip[ment]” lists
a total expenditure of $ 13.8494 billion, but the twelve disclosed line items in that section total only
$0.8262 billion, leaving a $13.0232 billion gap attributable in indiscernible proportions to the two
blank line items labeled “selected activities” and “production activities.”49 Some other omissions
are less conspicuous, such as a $1.458 billion total expenditure and $1.4509 billion line-item sum
for the Army Special Operations Command, resulting in a $7.8 million discrepancy attributable in
indiscernible proportions to three blank line items labeled “classified programs,” “special program,”
and “classified program GDIP.”50 Meticulously repeating this same arithmetic across the entire
defense budget has become something of an annual sport for a coterie of national security number-
crunchers, with staggering results: the total DOD black budget rose some 800% between 1981 and
1989 to a $36 billion peak,51 declined to approximately $28 billion in the early Clinton years,52
declined even further in the late 1990s, doubled during the Bush years to roughly $32 billion,53 and
was interestingly expanded by the incoming Obama Administration to an unprecedented $50
billion.54
The ease with which any citizen can calculate this discrepancy has led Deputy Director of
Central Intelligence William Studeman to concede that at least the aggregate size of the black
budget “certainly seems to be the approximately worst-kept secret in town,”55 which may explain
45
31 U.S.C.A. § 1102.
46
See, e.g., Pub. L. 111-68, § 106, 123 Stat. 2023, 2045 (Oct. 1, 2009) (continuing fiscal year 2009-level funding into fiscal year 2010 until
Oct. 31, 2009); Pub. L. 111-84, 123 Stat. 2190 (Oct. 28, 2009) (authorizing DOD appropriations for fiscal year 2010 within days of the
deadline set by the continuing resolution).
47
See 31 U.S.C. § 331(a), (c), (e).
48
See, e.g., DEPARTMENT OF DEFENSE, DEPARTMENT OF DEFENSE BUDGET FISCAL YEAR 2009, PROCUREMENT PROGRAMS (P-1), at 66, 82,
89, 94, 105-106 (Feb. 2008), available at http://comptroller.defense.gov/defbudget/fy2009/fy2009_p1.pdf (leaving blank myriad
procurement line items labeled “classified program,” “special program,” “production activities,” “selected activities,” etc.).
49
DEPARTMENT OF DEFENSE, DEPARTMENT OF DEFENSE BUDGET FISCAL YEAR 2009, PROCUREMENT PROGRAMS (P-1), at 94 (Feb. 2008),
available at http://comptroller.defense.gov/defbudget/fy2009/fy2009_p1.pdf.
50
Id. at 104-106.
51
Weiner, supra note 35, at 16-17.
52
The Clinton Budget: Total of $28 Billion Is Being Requested For Secret Projects, THE NEW YORK TIMES, Feb. 8, 1994,
http://www.nytimes.com/1994/02/08/us/the-clinton-budget-total-of-28-billion-is-being-requested-for-secret-projects.html (last visited Nov.
17, 2009).
53
William J. Broad, Inside the Black Budget, THE NEW YORK TIMES, Apr. 1, 2008,
http://www.nytimes.com/2008/04/01/science/01patc.html?8dpc.
54
Bill Sweetman, Black Budget Blows By $50 Billion Mark, AVIATION WEEK, May 7, 2009,
http://www.aviationweek.com/aw/blogs/defense/index.jsp?plckController=Blog&plckScript=blogScript&plckElementId=blogDest&plckBlo
gPage=BlogViewPost&plckPostId=Blog:27ec4a53-dcc8-42d0-bd3a-01329aef79a7Post:07d043ca-ceaf-4d4b-a260-
7a4c0f59d581&plckCommentSortOrder=TimeStampAscending (last visited Nov. 17, 2009).
55
The Clinton Budget, supra note 52.
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why the Obama Administration made the additional change of condensing the confusing mishmash
of omitted line item labels into the single category of “classified programs.”56 While this change
certainly simplifies the black budget arithmetic, its total silence on the funds‟ actual allocation
makes it far from a harbinger of transparency.57 The subcategories in which the “classified
program” line items are located still have titles as vague as "Elect[ric] Equip[ment] - Support,"
"Aircraft," "DARP," "Base Maintenance [and] Support," "Major Equipment," "Special Support
Programs," "Special Programs," "Other," etc.58
3. Legal Basis
a. The CIA Black Budget
i. The Central Intelligence Agency Act
Throughout the entirety of the U.S. Code, there is only one instance where Congress
specifically authorizes secret government spending: the Central Intelligence Agency Act of 1949
(“CIAA”).59 Although the CIA‟s existence as an intelligence gathering and coordinating body was
legitimized by the National Security Act of 1947, that legislation did not provide any actual funding
for covert actions.60 As a result, the CIA continued to siphon from DOD budgets for two more years
just as the CIG had, until CIA General Counsel‟s prodding as to illegality of the practice61
eventually prompted the Director of Central Intelligence (“DCI”) to ask the the House Armed
Services Committee for urgent legislation providing administrative and funding rules for the CIA.62
In a highly unusual legislative process, the subsequent House and Senate Armed Services
Committee hearings on the CIAA were held in closed-door executive sessions, after which the
House Armed Services Committee Chairman Carl Vinson (D-GA) commented that “[w]e will just
have to tell the House they will have to accept our judgment and we cannot answer a great many
questions that might be asked” given the bill‟s “highly confidential nature.”63 After a short half-hour
of debate in which some House colleagues argued that the CIAA effectively “abdicated their
functions” by “suspending all laws with regard to government expenditures”64 and expressed their
56
Compare DEPARTMENT OF DEFENSE, DEPARTMENT OF DEFENSE BUDGET FISCAL YEAR 2009, PROCUREMENT PROGRAMS (P-1), at 66, 82,
89, 94, 105-106 (Feb. 2008), available at http://comptroller.defense.gov/defbudget/fy2009/fy2009_p1.pdf (leaving blank myriad
procurement line items labeled “classified program,” “special program,” “production activities,” “selected activities,” etc.) with
DEPARTMENT OF DEFENSE, DEPARTMENT OF DEFENSE BUDGET FISCAL YEAR 2010, PROCUREMENT PROGRAMS (P-1) at 29, 65, 76, 80, 84,
89, 92, 98, 100 (May 2009), available at http://comptroller.defense.gov/comptroller/defbudget/fy2010/fy2010_p1.pdf (condensing all
omitted line items into the “classified program” category).
57
See generally id.
58
See generally id.
59
See generally Pub. L. 81-110, 81 Cong. Ch. 227, 63 Stat. 208 (June 20, 1949).
60
See SELECT COMMITTEE TO STUDY GOVERNMENTAL OPERATIONS WITH RESPECT TO INTELLIGENCE ACTIVITIES, FOREIGN AND
MILITARY INTELLIGENCE, BOOK I 476-492 (1976), available at
http://www.aarclibrary.org/publib/church/reports/book1/html/ChurchB1_0242b.htm (hereinafter “Church Committee Report”).
61
Church Committee Report, supra note 60, at 496.
62
Church Committee Report, supra note 60, at 493-501. Note that the DCI position was replaced by the DNI position in April 2005 pursuant
to a recommendation by the 9/11 Commission, but some DCI duties remain with the new Director of the CIA (“DCIA”) position now
subordinate to the DNI. See generally Intelligence Reform & Terrorism Prevention Act of 2004, Pub. L. No. 108-458, § 1081(a), (b), 118
Stat. 3638 (2004) (“Any reference to the [DCI] or the [DCIA] in the Director‟s capacity as the head of the intelligence community...shall be
deemed to be a reference to the [DNI]. ... Any reference to the [DCI] or the [DCIA] in the Director‟s capacity as the head of the [CIA] shall
be deemed to be a reference to the [DCIA].”) (emphasis added); 50 U.S.C. § 403a (“When used in sections 403a to 403s of this title, the
term... “Director” means the [DCIA]”). To avoid any confusion, this article will always refer to either the DNI or the actual DCIA even if the
historical context is one in which DCI would have been used.
63
Hearings on H.R. 1741, H.R. 2546, & H.R. 2663 Before the House Committee on Armed Services, 81st Cong., 1st Ses., ser. 26 at 487, as
declassified (1949).
64
95 CONG. REC. 1946 (Mar. 7, 1949) (statement of Rep. Marcantonio). Use of the term “abdication” may be attributed more to rhetorical
hyperbole than the legal definition of the term implicating “nondelegation doctrine,” whereby legality of a congressional delegation of
authority to the Executive is illegal if (1) the power is of a nondelegable nature, (2) the delegating statute lacks an “intelligible principle” to
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reluctance to take such a drastic step “without knowing what all its provisions meant,”65 the bill
uneventfully passed without amendment by an impressive margin of 348 to 4.66 Senate Armed
Services Committee Chairman Millard Tydings (D-MD) similarly discouraged floor debate of the
mechanics underlying the bill‟s text, and it was quickly passed in the Senate by a voice vote without
roll call.67
What did Congress pass in this haste? Leaving aside the CIAA‟s myriad administrative
provisions, two separate sections lay out the asserted abdication of Congress‟ appropriation power
as far as the CIA is concerned.68 The first provides that the Office of Management and Budget
(“OMB”) may transfer to CIA accounts funds from any other agency‟s ordinary appropriations,
“without regard to limitations of appropriations from which transferred” and indeed “without
regard to any provisions of law,” so long as the OMB is satisfied that the funds would be directed
toward a function the CIA is authorized to perform.69 These functions include intelligence
collection, intelligence analysis, appointment of an advisory committee, or “such other functions
and duties as related to intelligence affecting the national security as the President or the Director of
National Intelligence (“DNI”) may direct,”70 the latter of which has historically been the “catchall”
basis for covert actions that fall outside the traditional scope of actual intelligence gathering, such as
sabotage, arms trading, paramilitary operations, attempted assassinations, etc.71 In effect, the OMB,
which is under direct control of the Executive Office like the CIA, has discretion to withdraw any
amount of funds from educational, housing, healthcare, or defense appropriations alike and deposit
it in a secret CIA account without any corresponding record in the transferring agency‟s public
budget, so long as the OMB rubber-stamps the CIA‟s certification that the funds would be used for
an authorized function.72 Compare this secret siphoning to sister agencies like the National Security
Agency, Defense Intelligence Agency, or National Geospatial Intelligence Agency, which have
blank line items in the DOD budget and thus allow rough estimation of at least the expenditure total
encompassing all three, if not their proportional shares.73
The second pertinent section of the CIAA authorizes the CIA to carry out its functions with
expenditure of any “sums made available to the Agency by appropriation or otherwise,” again
“without regard to the provisions of law and regulations relating to the expenditure of Government
guide the Executive‟s exercise of the delegated authority, (3) the Executive fails to follow any reasonable interpretation of said principle, or
(4) the Executive‟s exercise of the delegated authority otherwise violates the Constitution. Dycus, supra note 3, at 43, 47-48 (citing, inter
alia, Mistretta v. U.S., 488 U.S. 361, 371-379 (1989)). The U.S. Supreme Court never actually invalidated a statute under this doctrine except
for two limited instances in 1935. Id. at 43.
65
Weiner, supra note 35, at 118 (citing THE WASHINGTON STAR, June 1, 1949) (emphasis added); see also 95 CONG. REC. 1945 (Mar. 7,
1949) (statement of Rep. Celler) (“If the members of the Armed Services Committee can hear the detailed information to support this bill,
why cannot the entire membership?”) (emphasis added).
66
Id. at 119.
67
95 CONG. REC. 5942-5955 (Mar. 7, 1949).
68
See 50 U.S.C. § 403f, 403j.
69
50 U.S.C. § 403f(a)(1) (emphasis added).
70
50 U.S.C. § 403-4a (c-d), 405 (describing authorized functions of the DNI) (emphasis added).
71
See Church Committee Report, supra note 60, at 476-492 (discussing the CIA‟s assertion that a similar provision in the National Security
Act, referring to such other duties and functions related to intelligence as the National Security Council might direct, authorized such covert
actions).
72
See id. In practice, the bulk of this siphoning is from the budgets of the State Department and DOD, but use of other agencies is not
unheard of. See Redish, supra note 11, at 136-137.
73
See DEPARTMENT OF DEFENSE, DEPARTMENT OF DEFENSE BUDGET FISCAL YEAR 2010, PROCUREMENT PROGRAMS (P-1) at 94 (May
2009), available at http://comptroller.defense.gov/comptroller/defbudget/fy2010/fy2010_p1.pdf (labeling blank line items for the NSA, DIA,
and NGIA).
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funds.”74 Even more troubling is the closing provision that any expenditure on “objects of a
confidential, extraordinary, or emergency nature,” which in practice would encompass a vast
majority of the CIA‟s expenditures, may be “accounted for solely on the certificate of the Director
[of the CIA]” (“DCIA”), and such certificate “shall be deemed a sufficient voucher for the amount
therein certified.”75 The actual “certificate” is, of course, not made available to the public, so its
contents‟ level of detail cannot be known,76 but the wording of the statute suggests that the
certificate need not specify the purposes for which those funds were spent in great detail.77 In fact,
the CIAA further imposed on the DNI and subordinates an affirmative duty not to disclose the
“organization, functions, names, official titles, salaries, or numbers of personnel employed by the
Agency,” again notwithstanding “provisions of any other law,”78 such as the general requirements
for the Treasury Department‟s annual accounting of all public expenditures,79 and even the
generally applicable provisions for budgetary auditing by the Government Accountability Office
(“GAO”).80 In effect, the DCIA has discretion to allocate funds to any purpose he or she deems
“confidential” and in the public interest, and to simply certify that the funds were put to that
purpose without necessarily disclosing what it is.81
ii. Congressional Oversight
Although congressional oversight was remarkably informal in the first two decades of the
CIA‟s history,82 a growing national cynicism brought on by Vietnam, Watergate, and the CIA-
backed Chilean coup prompted Congress to pull back hard on the CIA‟s leash in the late 1970s, as
best exemplified by the Senate‟s 1975 creation of the so-called “Church Committee” to aggressively
investigate the CIA.83 Aside from voluminous findings on the propriety of CIA covert actions not
relevant here, the Church Committee unearthed that Congress was seriously derelict in its oversight
of how black budget appropriations to the CIA were allocated, with many examples large and
small.84 On the small side, out of over $13 million spent on covert actions in Chile between 1963
and the 1973 coup, Congress only received briefings on projects totaling $9.3 million, or 72%.85 On
the high side, the Chairman of the Senate Intelligence Appropriations Subcommittee shockingly had
no idea whatsoever that over $300 million a year of a CIA allocation he approved was devoted to
the CIA‟s creation of a 36,000-man mercenary army for the “secret war” in Laos: “I did not know
74
50 U.S.C. § 403j (emphasis added).
75
50 U.S.C. § 403j(b) (emphasis added).
76
See Richardson v. U.S., 465 F.2d 844, 848 (3d Cir. 1971) (“The only accurate accounting for the funds is the certificate rendered by the
Director…, but it does not appear that this certificate or its contents are made available to the public. Presumably the money actually spent is
reflected in the Treasury Department‟s annual statement as a disbursement by the original agency to which Congress made the appropriation,
although it may not be reflected at all.”); see also Harrington v. Bush, 553 F.2d 190, 196, 196 n.15 (D.C. Cir. 1977) (“The precise nature and
content of the “certificate of the Director” is not clear from the information presented by the parties in this case. ... It is not clear, for
example, whether the funds expended by the Agency are reported as having been spent by the other agency for which they were originally
appropriated. We are uncertain as to the precise amount of information that [ordinary Congressmembers] receive[] under this scheme.”).
77
See 50 U.S.C. § 403j(b).
78
50 U.S.C. § 403g (emphasis added).
79
See supra notes 43-47 and accompanying text.
80
Pub. L. 96-226, § 101, 94 Stat. 311 (1980) (codified at 31 U.S.C. § 3524(d)(2)) (“This section does not...affect authority under section 8(b)
of the Central Intelligence Agency Act of 1949.”).
81
See Edwin Meese III and Hans A. von Spakovsky, Defending Those Who Serve: Paying the Legal Costs of CIA Officers (Sep. 2, 2009),
http://www.heritage.org/research/legalissues/wm2602.cfm (last visited Nov. 17, 2009).
82
See generally Dycus, supra note 3, at 384-385; Weiner, supra note 35, at 121-122; Congressional Research Service, supra note 40, at 6-8.
83
See generally Dycus, supra note 3, at 384-395, 421-426; Church Committee, supra note 60.
84
Id. at 384-385.
85
Church Committee, supra note 60, at 150-151.
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anything about it…I never asked, to begin with, whether or not there were any funds to carry on the
war in this sum the CIA asked for. It never dawned on me to ask about it…”86
Upon analyzing findings like these, the Church Committee read the Account Clause as a
right of not only Congress, but also the public, such that the CIAA black budget‟s concealment
from both “the public and…the Congress prevents either from effectively ordering priorities and
violates Article I, Section 9, Clause 7 of the Constitution.”87 Thus, the Committee recommended at
the very least publishing “the aggregate figure,”88 and its counterpart in the House, the Pike
Committee, made the very same recommendation.89 Notably, the Church Committee added that
aggregate publication only “would begin to satisfy” the Account Clause,90 and the Congress should
seriously “consider whether it is necessary, given the Constitutional requirements…to publish more
detailed budgets” than the aggregate figure.91 Although the Senate Intelligence Committee then
proposed by an 8-to-3 vote to at least have that total published, pleading from then-DNI George
H.W. Bush prompted the Committee to hold off with a 6-to-5 vote to instead refer the issue to the
Senate, which then never brought it to a floor vote.92 A year later, the House Intelligence Committee
also declined to take action on publication.93 The issue did not come to the fore again until the very
end of the Cold War, when Congress proposed publication of the intelligence community budget‟s
aggregate total only to back down at then-President Bush‟s threat of a veto,94 and then again in the
late 1990s, when the Clinton Administration voluntarily twice disclosed the same aggregate total in
response to Freedom of Information Act (“FOIA”) requests on the ground that it “d[id] not
jeopardize” national security,95 only to abruptly reverse course in 1998 and successfully assert in
court that continued voluntary disclosure would “provide[] too much trend information…for our
adversaries.”96 Since that time, further FOIA requests and legislative initiatives for aggregate
publication have only met with failure,97 even after a strong recommendation by the 9/11
Commission that both the aggregate figure and agency-specific toplines should be published to help
the public “judge priorities and foster accountability.”98
86
Weiner, supra note 35, at 128 (citing 42 CONG. REC. 929-931 (1971) (statements of Senator Ellender)).
87
SENATE SELECT COMMITTEE ON INTELLIGENCE, WHETHER DISCLOSURE OF FUNDS FOR THE INTELLIGENCE ACTIVITIES OF THE U.S. IS IN
THE PUBLIC INTEREST, S. Rep. No. 95-274, 94th Cong., 2nd Ses. (1977) (emphasis added).
88
Id.
89
H.R. Rep. No. 94-833, at 10 (Feb. 11, 1976) (recommending that “all intelligence related items be included as intelligence expenditures in
the President‟s budget, and that there be [public] disclosure of the total single sum budgeted for each agency involved in intelligence”).
90
See Senate Select Committee on Intelligence, supra note 87; see also Church Committee Report, supra note 60, at 470.
91
Id.
92
Senate Select Committee on Intelligence, supra note 87, at 9.
93
H.R. Rep. No. 95-1795, at 15-16 (1978) (finding “no persuasive reason why disclosure of any or all amounts of the funds authorized for
the intelligence and intelligence-related activities of the government would be in the public interest”).
94
Compare H.R. Rep. No. 102-2038 (1991) with H.R. Rep. No. 102-65 (1991).
95
Statement of the Director of Central Intelligence Regarding the Disclosure of the Aggregate Intelligence Budget for Fiscal Year 1997 (Oct.
15, 1997), http://www.fas.org/sgp/foia/victory.html; Statement of the Director of Central Intelligence Regarding the Disclosure of the
Aggregate Intelligence Budget for Fiscal Year 1998 (Mar. 20, 1998), http://www.fas.org/sgp/foia/intel98.html.
96
Aftergood v. CIA, No. 1:98CV02107(TFH) (D.D.C. 1999), available at http://fas.org/sgp/foia/hogan.html.
97
See, e.g., Aftergood v. C.I.A., 225 F.Supp.2d 27 (D.D.C. 2002); Aftergood v. CIA, No. 02-1146 (RMU) (D.D.C. 2004), available at
http://fas.org/sgp/foia/2002/rmu020604.pdf; Aftergood v. CIA, 355 F.Supp.2d 557, 562-563 (D.D.C. 2005); H.R. 4392, 106th Cong., § 306
(2000); 146 CONG. REC. H3496-3509 (May 22, 2000), available at http://frwebgate1.access.gpo.gov/cgi-
bin/PDFgate.cgi?WAISdocID=225917290602+5+2+0&WAISaction=retrieve; S. 3237, 110th Cong., § 107 (2007).
98
Compare NATIONAL COMMISSION ON TERRORIST ATTACKS UPON THE U.S., THE 9/11 COMMISSION REPORT 416 (Washington:
Government Printing Office, 2004), available at www.9-11commission.gov/report/911Report.pdf (“Opponents of declassification” of
“overall amounts of money being appropriated for national intelligence and to its component agencies” “argue that America‟s enemies could
learn about intelligence capabilities by tracking the top-line appropriations figure. Yet the top-line figure by itself provides little insight into
U.S. intelligence sources and methods. The U.S. government readily provides copious information about spending on its military forces,
including military intelligence. The intelligence community should not be subjected to that much disclosure. But when even aggregate
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Though Congress declined the Church Committee‟s publication recommendation and quite
explicitly rejected its recommendation that CIA budgets at least be subjected to GAO audits 99 by
enacting a statutory exemption to the contrary,100 Congress did at least adopt the Committee‟s
recommendation101 of statutes and internal procedural rules that would enhance congressional
budgetary oversight.102 Nonetheless, the initial reform limited this oversight to a small and
exclusive coterie rather than “Congress” per se.103 The President‟s annual budget submission to
Congress still omitted all allocations to the CIA, and a report on those allocations was delivered
only to the House and Senate Intelligence Committees and Defense Appropriations Subcommittees,
which would then discuss them and ask questions of agency staff in “executive session,” i.e., behind
closed doors.104 Once specific allocations were approved, a finalized “classified schedule” would be
submitted to the House and Senate Appropriations and Armed Services Committees, but this is
where the information stopped.105 CIA allocations remained concealed from all but the roughly 200
Congressmembers on authorized committees (depending on seat overlaps), out of 535 total
Congressmembers.106 When the larger appropriations bills were submitted to the full Congress for
floor debate, ordinary Congressmembers not on these committees did not know, and could not find
out, which agencies‟ appropriations were artificially inflated for CIA siphoning or by how much.107
Despite many Congressmembers‟ public complaints that they could not make an informed
appropriation vote under this procedure108 and at least one Congressmember‟s lawsuit on that
ground,109 it was not until the very end of the Cold War that Congress finally began allowing all
members access to a “classified annex” to defense appropriations bills, which describes to some
extent a breakdown of allocations to the intelligence community.110 Although that remains the
categorical numbers remain hidden, it is hard to judge priorities and foster accountability.”) with The Intelligence Reform and Terrorism
Prevention Act, Pub. L. 108-458, 118 Stat. 3638 (2004) (implementing most 9/11 Commission recommendations but omitting the aggregate
and top-line disclosure recommendation).
99
Church Committee Report, supra note 60, at 471 (“[S]taff members of the [GAO] should conduct full audits, both for compliance and for
management of all components of the intelligence community. The GAO should establish such procedures, compartmentation and clearances
as are necessary in order to conduct these audits on a secure basis. In conducting such audits, the GAO should be authorized to have full
access to all necessary intelligence community files and records.”).
100
Pub. L. 96-226, § 101, 94 Stat. 311 (1980) (codified at 31 U.S.C. § 3524(d)(2)) (“This section does not...affect authority under section
8(b) of the Central Intelligence Agency Act of 1949.”).
101
Church Committee Report, supra note 60, at 470.
102
103
104
See WILLIAM C. BANKS & PETER RAVEN-HANSEN, NATIONAL SECURITY LAW AND THE POWER OF THE PURSE 52 (New York : Oxford
University Press, 1994), available in part at http://books.google.com (search “National Security Law and the Power of the Purse”); CIA –
Frequently Asked Questions, http://www.umsl.edu/services/govdocs/wofact99/20.htm#3 (last visited Nov. 25, 2009); Congressional
Research Service, supra note 40, at 9-12; cf. Halperin v. CIA, 629 F.2d 144, 160 (1980) (describing the slightly different congressional
budget review process in effect at the time); Harrington v. Bush, 553 F.2d 190, 195-196 (D.C. Cir. 1977) (same).
105
Banks & Raven-Hansen, supra note 104, at 52.
106
Id. at 52.
107
Id. Although there exists a provision of the National Security Act whereby the President may further limit knowledge of a particular
covert action to a select few senior congressional leaders (colloquially termed the “Gang of Eight”) where he or she deems containing that
information “essential…to meet extraordinary circumstances affecting vital interests of the U.S.,” this apparently applies not to budgetary
approval but only operations reporting and oversight, which is outside the scope of this article. 50 U.S.C. § 413b(c)(2). For an interesting
overview of this phrase as it relates to the recent NSA wiretapping controversy, as well as other limitations to operations oversight, see
generally Heidi Kitrosser, Congressional Oversight of National Security Activities: Improving Information Funnels, 29 CARDOZO L. REV.
1049 (2008).
108
See, e.g., Weiner, supra note 35, at 130 (citing 42 CONG. REC. 927-931 (1971)); id. at 122 (citing 97 CONG. REC. 2811-2814 (1954)).
109
See infra notes 282-289 (examining the case of a Congressman who was not in an authorized committee and sued to obtain information as
to how much the appropriations on which he voted were allocated to the CIA budget, only to face dismissal on standing grounds).
110
Pub. L. No. 102-172, § 8035, 105 Stat. 1150 (1991) (“For the purposes of the Balanced Budget and Emergency Deficit Control Act..., the
term program, project, and activity for appropriations contained in this Act shall be defined as the most specific level of budget items
identified in the...related classified annexes”).
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practice to this day, it is subject to cumbersome restrictions, particularly review of the classified
annex within the Intelligence Committee offices at a scheduled date and time upon taking a secrecy
oath and executing a nondisclosure agreement, breach of which risks official censure under House
and Senate rules.111 Further, since the “classified annex” is only to defense appropriations bills, it is
not clear that it would encompass allocations made from non-DOD agencies.112 Perhaps more
importantly, the “classified annex” is of course only as informative as the breadth of its line item
categories allows; Congressmembers outside authorized committees are in no position to demand
additional detail about specific activities within those broad categories, so it should come as no
surprise that they remain grossly underinformed in practice if not in theory.113
b. General Classification Law
i. Who has Authority to Classify?
Unlike the CIA‟s black budget, the DOD‟s black budget has no statutory basis to “siphon”
appropriations and thus must instead be pigeonholed into the ordinary procedures protecting
classified information, which themselves are not statutory in origin.114 While there are specific
statutes establishing procedures for investigation and granting of security clearance applications,115
criminalizing unauthorized disclosure of certain types of sensitive information,116 imposing
reporting requirements for certain types of classified information‟s compartmentation,117 or
otherwise tangentially suggesting Congress‟ assumption that some information will be designated as
classified,118 there is no statute specifically stating who can classify what, or under what criteria.119
The closest thing to such a statute may be 50 U.S.C. § 403-1(i)(1), obligating the DNI to take
measures “protect[ing] intelligence sources and methods from unauthorized disclosure,” but this
111
See Congressional Research Service, supra note 40, at 9; 151 CONG. REC H4114 (May 26, 2005) (statement of Rep. Hoekstra), (citing
House Rule XXIII, cl. 13, available at http://www.rules.house.gov/ruleprec/RXXIII.htm), available at http://frwebgate.access.gpo.gov/cgi-
bin/getpage.cgi?dbname=2005_record&page=H4114&position=all (describing procedures for access to the classified annex); 152 CONG.
REC. H1627 (Apr. 06, 2006), available at http://frwebgate.access.gpo.gov/cgi-
bin/getpage.cgi?dbname=2006_record&page=H1627&position=all (same); 153 CONG. REC. H15273 (Dec. 11, 2007), available at
http://frwebgate3.access.gpo.gov/cgi-bin/PDFgate.cgi?WAISdocID=2267271877+7+2+0&WAISaction=retrieve (same); 154 CONG. REC.
H4656 (May 22, 2008), available at http://frwebgate3.access.gpo.gov/cgi-
bin/PDFgate.cgi?WAISdocID=22672611771+6+2+0&WAISaction=retrieve (same); 155 CONG. REC. H7726 (July 7, 2009), available at
http://frwebgate3.access.gpo.gov/cgi-bin/PDFgate.cgi?WAISdocID=22672517017+0+2+0&WAISaction=retrieve (same).
112
See Pub. L. No. 102-172, § 8035, 105 Stat. 1150 (1991) (“For the purposes of the Balanced Budget and Emergency Deficit Control Act...,
the term program, project, and activity for appropriations contained in this Act shall be defined as the most specific level of budget items
identified in the...related classified annexes”) (emphasis added).
113
See Banks & Raven-Hansen, supra note 104, at 52 (in an analysis postdating the 1991 reform, maintaining that “appropriation accounts
are inflated to reflect the pending [CIA] budget transfers, but the members of Congress who are debating the budget and voting on
appropriations do not know which figures are inflated or by how much. Congress is thus only mechanically involved in approving the [CIA]
budget…and its action in approving the remainder of the budget is clouded with the shell game of hiding the intelligence figures within other
accounts.”); The Clinton Budget, supra note 52 (“While the Congressional committees overseeing military appropriations and intelligence
have the power to review the black budget, Congress as a whole is generally unaware of its contents when it approves the spending.”). For
an interesting example of the breadth of such line items, albeit predating the oversight reforms, see the only publicly disclosed breakdown at:
Papers of Rep. George Mahon, CIA: Location of Budgeted Funds, Fiscal Year 1953, http://www.fas.org/sgp/othergov/cia1953bud.pdf (last
visited Nov. 27, 2009).
114
115
See generally 50 U.S.C. § 435b.
116
See, e.g., 18 U.S.C. § 793-794 (defense information the disclosure of which the defendant intends to be, or has reason to know would be,
injurious to to U.S. or advantageous to a foreign nation); 18 U.S.C. § 797 (designated military installations); 18 U.S.C. § 798 (cryptological
or other intelligence-gathering information).
117
118
See, e.g., 10 U.S.C. § 1564a(c)(1)(A) (authorizing polygraphs of employees with access to “top secret” information); 10 U.S.C. § 130c(e)
(noting that § 130c‟s rules regarding information of foreign governments or international organizations are not applicable to information
classified by Executive Order).
119
See Kevin R. Kosar, Congressional Research Service, Security Classification Policy and Procedure: E.O. 12958, as Amended 6 (June 4,
2009), available at http://www.fas.org/sgp/crs/secrecy/97-771.pdf (citing A Statutory Basis for Classifying Information: Hearings Before the
House Permanent Select Committee on Intelligence, 103rd Cong., 2nd sess. (Mar. 16, 1994)).
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narrow provision of course could not encompass the general classification scheme applicable to the
DOD.120 Congress in fact considered tackling the latter in 1994, before an Executive Order rendered
the issue moot.121
In lieu of a statutory basis for classification, the White House has consistently maintained
since President Truman‟s Executive Order 10290 that the Executive Branch has sufficient authority
by virtue of not only statutes, but also “the Constitution…and as President of the United States,” to
set criteria for keeping information secret in the interest of national security.122 This assertion of
inherent constitutional authority, by intertwining classification policy with the President‟s duties as
“Commander in Chief” of the military as well as the vestee of the “executive power” charged to
“take Care that the Laws be faithfully executed,” has come to strengthen the President‟s discretion
in this area and may explain Congress‟ historical reluctance to interfere with it.123
Truman‟s assertion of inherent classification authority was eventually given abundant
support by the Supreme Court in Dept. of the Navy v. Egan, which, though limited to the facts of a
security clearance revocation, suggested in an oft-quoted obiter dictum that the President‟s
Commander-in-Chief “authority to classify and control access to information bearing on national
security…flows primarily from this constitutional investment of power in the President and exists
quite apart from any explicit congressional grant.”124 Even so, the Court later added the caveat that
its “utmost deference” to and “reluctan[ce] to intrude upon” the President‟s inherent national
security powers would control “unless Congress specifically has provided otherwise,” which
suggests that Congressional limitation of classification rules could warrant judicial reconsideration
of the issue.125 For example, a 2002 appropriations bill obligated the DOD to notify congressional
defense committees 30 days in advance of any action that restricts access to classified information
beyond the ordinary procedure,126 but in one of the Bush Administration‟s many infamous “signing
statement” nuances, the President, alluding to Egan, stressed that he would construe that notice
requirement “in a manner consistent with…constitutional grants of the executive power and
authority as Commander in Chief” to protect national security information independent of any
“legislative grant of authority.”127 Certainly, an access restriction without the required notice would
120
See C.I.A. v. Sims, 471 U.S. 159, 164, 168 (1985) (citing the National Security Act of 1947, Pub. L. No. 235, § 102(d)(3), 61 Stat. 496
(1947) (now codified at 50 U.S.C. § 403-1(i)(1)) (holding that § 102(d)(3)‟s mandating protection of intelligence sources and methods
constituted a statutory FOIA exemption) (emphasis added).
121
See id.
122
Exec. Order No. 10,290, 16 Fed. Reg. 9795 (Sept. 24, 1951).
123
Richard C. Ehlke & Harold C. Relyea, The Reagan Administration Order on Security Classification: A Critical Assessment, 30 FED. BAR
NEWS & J. 91, 92 (1983) (citing U.S. CONST. art. II, § 2-3).
124
484 U.S. 518, 527 (1988) (citing Cafeteria Workers v. McElroy, 367 U.S. 886, 890 (1961)) (emphasis added); see also Afshar v. Dept. of
State, 702 F.2d 1125, 1137 (D.C. Cir. 1983) (deciding in the context of a classification‟s satisfaction of a FOIA exemption that “[t]his court
will not, in the absence of any evidence of illegitimate discrimination, and perhaps not even then, question the President‟s determination that
the national security requires increased secrecy.”).
125
Id. at 530 (emphasis added).
126
Pub. L. No. 107-117, § 8007, 115 Stat. 2230, 2248 (2002) (“Funds appropriated by this Act may not be used to initiate a special access
program without prior notification 30 calendar days in session in advance to the congressional defense committees.”); see also infra notes
130-148, 163-183 and accompanying text (explaining the ordinary classification system, the exception for “special access programs”
(“SAPs”) at issue in the aforementioned bill, and similar notice requirements applicable to SAPs).
127
See OFFICE OF THE PRESS SECRETARY, THE WHITE HOUSE, DEFENSE BILL SIGNING STATEMENT (Jan. 10, 2002), http://georgewbush-
whitehouse.archives.gov/news/releases/2002/01/20020110-8.html (pointing out that with respect to § 8007 of the bill that “[t]he U.S.
Supreme Court has stated that the President‟s authority to classify and control access to information bearing on national security flows from
the Constitution and does not depend upon a legislative grant of authority. Although 30-day advance notice can be provided in most
situations as a matter of comity, situations may arise, especially in wartime, in which the President must promptly establish special access
controls on classified national security information under his constitutional grants of the executive power and authority as Commander in
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present a classic case of what Justice Jackson‟s polestar Steel Seizure Case concurrence called the
presidential power‟s “lowest ebb” because direct “incompatib[ility] with the expressed…will of
Congress” requires a court to offset the President‟s unenumerated power by Congress‟ own
enumerated powers at issue, such as “mak[ing] Rules for the Government and Regulation of the
land and naval forces.”128 Nonetheless, the President‟s own classification policy controls so long as
nobody seeks a judicial remedy, and the same could be said of any future congressional attempts to
limit it.129
ii. How Information is Classified
Whatever the extent of the Executive‟s classification authority vis-à-vis Congress, its
present policy is publicly expressed in Executive Order 13292,130 a 2003 amendment to President
Clinton‟s 1995 Executive Order 12958.131 In pertinent part, Executive Order 13292 provides that
executive agency heads may delegate to any U.S. government official132 the authority to classify
any information in the government‟s control133 that “concerns” several exclusive national-security-
related categories,134 if said official “determines” that its disclosure “reasonably could be expected
to result in damage to the national security” which said official “is able to identify.”135 Further, the
official must determine whether the damage would be “exceptionally grave,” “serious,” or merely
identifiable, so as to classify at the exclusive levels of “Top Secret,” “Secret,” or “Confidential,”
respectively.136 To obtain access one must not only have a security clearance equivalent to the level
of classification in question and sign a nondisclosure agreement,137 but also a “need-to-know,”138
i.e., a determination by the “authorized holder” that the particular information is necessary to the
carrying out lawful duties of the person requesting it.139
In addition to this classification scheme of tiered security clearances and need-to-know,
provisions for the “special access program” (“SAP”) provide further protection by means of
compartmentation.140 In short, if the President or one of eight top officials “deem[s]” particular
information‟s “vulnerability” so “exceptional” that that ordinary classification criteria would not
Chief of the Armed Forces. The executive branch shall construe section 8007 in a manner consistent with the constitutional authority of the
President.”).
128
See Youngstown Sheet & Tube Co. v. Sawyer 343 U.S. 579, 637 (1952); see also id. at 636-637 (comparing that “lowest ebb” to a first
category of presidential action pursuant to statutory authorization, which comes to “personify the federal sovereignty” and is entitled to the
“strongest of presumptions and the widest latitude of judicial interpretation,” and a second “zone of twilight” category where congressional
acquiescence comes to “enable, if not invite, measures on independent presidential responsibility” end entitles the latter to deference absent
unusual “contemporary imponderables”); compare U.S. CONST. art. II, § 2-3 with U.S. CONST. art. I, § 8, cl. 14.
129
See supra note 125 and accompanying text.
130
Exec. Order No. 13,292, 68 Fed. Reg. 15,315 (Mar. 25, 2003).
131
Exec. Order No. 12,958, 60 Fed. Reg. 19,825 (Apr. 17, 1995).
132
Exec. Order No. 13,292, § 1.3(2-3).
133
Id. at § 1.1(2).
134
Id. at § 1.1(a)(3), 1.4. Specifically, these categories are military plans, systems or operations; intelligence activities, sources, or methods;
scientific, technological, or economic matters relating to national security; vulnerabilities or capabilities of systems relating to national
security; foreign government information, foreign relations, nuclear materials, or weapons of mass destruction. Id.
135
Id. at § 1.1(a)(4) (emphasis added).
136
Id. at § 1.2.
137
Id. at § 4.1(a)(1)-(2).
138
Id. at § 4.1(a)(3).
139
Id. at § 6.1(z).
140
See generally Exec. Order No. 13,292, § 4.3. There exists an additional level termed “sensitive compartmentalized information” (SCI), but
because its substance and legal basis are very similar to SAPs and because its limitation to the intelligence community renders it irrelevant to
DOD black budgets, only SAPs will be addressed here. See generally SENATE COMMISSION ON PROTECTING AND REDUCING GOVERNMENT
SECRECY, RETHINKING CLASSIFICATION: BETTER PROTECTION AND GREATER OPENNESS 26-27 (1997), available at
http://www.gpo.gov/congress/commissions/secrecy/pdf/07clas1.pdf (virtually equating SAPs and SCI, with the sole distinction being use in
the DOD or intelligence community respectively).
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afford “sufficient” protection, he or she may create an SAP.141 The Executive Order‟s silence on the
specific criteria for access to a SAP suggests that they may be ad hoc at the creating official‟s
discretion, so long as they meet the bare minimum of providing access to the Director of the
Information Security Oversight Office, the National Security Advisor (or his or her designee), a
“senior agency official” specified to regulate and account for the SAP, and any select group of
officials that is “reasonably small and commensurate with the objective of providing enhanced
protection for the information involved.”142
The senior agency official need only publish in the Federal Register any “implementing
regulations” to the extent that they “affect members of the public,”143 which is naturally a rare
condition,144 but the separate armed services have at least published some internal directives
clarifying the procedures for proposal and approval of an SAP.145 These procedures are too
voluminous for the scope of this article, but in pertinent part they establish the legal basis for
concealing not only the specifics of a project encompassed by an SAP (technological
breakthroughs, locations, chains of command, etc.), but also the very fact that an SAP project
deemed “unacknowledged” even exists.146 This “unacknowledged” SAP status was the means for
successfully concealing the very existence of the multi-billion research and development process for
stealth aircraft like the F-117 Nighthawk fighter and the $44 billion B-2 bomber project,
reconnaissance aircraft like the U-2 and SR-71 Blackbird, and even entire Army units like the 160th
Special Operations Air Regiment, which have since been publicly acknowledged.147 The Senate
Commission on Protecting and Reducing Government Secrecy has estimated that there were
roughly 150 DOD-approved SAPs as of 1997, but recognized that this estimate is on the low side
because the DOD‟s ability to deny even the very existence of “unacknowledged” SAPs made
accurate oversight impossible, as did the growing phenomenon of “SAPs within SAPs” made
possible by the DOD‟s discretion to actually define the security procedures within an SAP once it is
established.148
iii. Appellate Review
In the ordinary three-tiered classification process, the classifying official‟s broad discretion
is limited only by the bounds of aforementioned criteria‟s reasonable interpretation and some
general prohibitions against classification for the ulterior motives of restraining competition or
141
Id. at § 4.3(a).
142
Id. at § 4.3(b), 5.4(d).
143
Id. at § 5.4(d)(2).
144
As of Nov. 20, 2009, a Westlaw database search of the Federal Register for [“special access program” & defense] brings only 99 results,
which apparently refer to SAPs only tangentially without laying out the procedure for their proposal and approval.
145
See generally Special Access Programs (SAPs) and Sensitive Activities, Army Reg. 380–381 (Apr. 21, 2004), available at
http://fas.org/irp/doddir/army/ar380-381.pdf; Special Access Programs, Air Force Instruction 16-701 (Nov. 1, 1995), available at
http://www.fas.org/irp/doddir/usaf/16-701.htm.
146
See Army Reg. 380–381, supra note 145, 4-3(a) (“There are two types of SAPs, acknowledged and unacknowledged. An acknowledged
SAP may be openly recognized or known[;] however, specifics within the SAP will be classified. The existence of an unacknowledged SAP,
or an unacknowledged portion of an acknowledged SAP will be made known only to those personnel properly authorized to receive the
information.”) (emphasis added); Air Force Instruction 16-701, supra note 145, at H.6 (noting that “in an unacknowledged [SAP], its very
existence is a core secret”) (emphasis added).
147
See generally Bill Sweetman, In search of the Pentagon‟s billion dollar hidden budgets - how the US keeps its R&D spending under
wraps, JANE‟S INTERNATIONAL DEFENCE REVIEW (Jan. 5, 2000), available at
http://www.janes.com/defence/news/jidr/jidr000105_01_n.shtml.
148
SENATE COMMISSION ON PROTECTING AND REDUCING GOVERNMENT SECRECY, RETHINKING CLASSIFICATION: BETTER PROTECTION
AND GREATER OPENNESS 27 (1997), available at http://www.gpo.gov/congress/commissions/secrecy/pdf/07clas1.pdf .
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concealing violations of law, inefficiency, or other embarrassing facts. 149 In the event that the
classifying official might overstep these bounds, the Executive Order only requires that the relevant
agency have in place an “impartial official or panel” before which the “authorized holder” of
information may challenge a classification without retribution,150 provides for an Interagency
Security Classification Appeals Panel (“ISCAP”) to hear appeals from such challenges that have
exhausted all intra-agency remedies,151 and leaves any further appeal between an agency head and
the President.152 Except to the extent that submission to the ISCAP is barred where a federal court
has reviewed the matter within the preceding two years, the Executive Order does not contemplate
any sort of judicial review of classification determinations.153 Indeed, even § 3.1, which provides
that an “agency head” or head-specified “senior agency official” has discretion to determine that the
“public interest in disclosure outweighs the damage to the national security that might reasonably be
expected” from it, explicitly states that this balancing test creates no “rights subject to judicial
review” whatsoever.154
As for SAPs, Executive Order 13292 requires the DOD head (or his or her “principal
deputy”) to annually review each SAP to ensure that it continues to satisfy the aforementioned SAP
criteria.155 In 1994 the DOD created a SAP Oversight Committee (“SAPOC”) to accomplish this
purpose, but the Senate Commission on Protecting and Reducing Government Secrecy has notably
criticized the SAPOC process for its high-level fixation on “cost, schedule, and performance” rather
than the “special security features” contemplated by Executive Order 13292.156
Regardless of whether the Executive-controlled ISCAP and SAPOC amount to little more
than a perfunctory “rubber stamp” in practice, the potential for judicial review appears virtually nil
even if they do.157 Although the courts since Greene v. McElroy have shown their willingness to
intervene to an extent in the security clearance process given its unique ability to deny a citizen of
his or her livelihood without the due process of law protected by the Fifth Amendment,158 the D.C.
Circuit has made clear in Afshar v. Dept. of State that the courts will not second-guess whether a
particular piece of information should be classified in the first place.159 Indeed, even with respect to
an Executive Order‟s establishment of the aforementioned “balancing test” between the public
interest and national security damage (but lacking Executive Order 13292‟s present caveat barring
judicial review), the D.C. Circuit in McGehee v. CIA concluded that “restraints on [the judiciary‟s]
authority” over national security affairs precluded its even considering such “balancing.”160 The
149
Exec. Order No. 13,292, § 1.7.
150
Id. at § 1.8.
151
Id. at § 5.3(b)(1), (c).
152
Id. at § 5.3(d).
153
See generally id.
154
Id. at § 3.1(b); see also note 160 and accompanying text (discussing a court‟s conclusion, even before the express preclusion of judicial
review, that no such right to judicial review exists).
155
Exec. Order No. 13,292, § 4.3(b)(4).
156
SENATE COMMISSION ON PROTECTING AND REDUCING GOVERNMENT SECRECY, RETHINKING CLASSIFICATION: BETTER PROTECTION
AND GREATER OPENNESS 27 (1997), available at http://www.gpo.gov/congress/commissions/secrecy/pdf/07clas1.pdf.
157
158
360 U.S. 474 (1959) (noting that “[a]lthough [security clearance] statutes make it apparent that Congress recognizes the existence of
military secrets, they hardly constitute an authorization to create an elaborate clearance program which embodies procedures…[that] failed
to comport with our traditional ideas of fair procedure.”).
159
Afshar v. Dept. of State, 702 F.2d 1125, 1137 (D.C. Cir. 1983) (deciding in the context of a classification‟s satisfaction of a FOIA
exemption that “[t]his court will not, in the absence of any evidence of illegitimate discrimination, and perhaps not even then, question the
President‟s determination that the national security requires increased secrecy.”).
160
718 F.2d 1137, 1150 (D.C. Cir. 1983) (deciding in the context of a classification‟s satisfaction of a FOIA exemption).
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Supreme Court‟s later statement in Egan, though obiter dictum, appears to endorse the D.C.
Circuit‟s nearly total judicial deference to the executive classification process.161
iv. Congressional Oversight
Absent truly independent administrative review or any level of judicial review, the only
significant check on creation and administration of SAPs is the congressional oversight process.162
In reaction to a series of congressional investigations into procurement excesses that brought the
emblematic “$650 hammer” and “$9,606 Allen wrench” into the public consciousness in the mid-
1980s,163 Congress in 1987 established new reporting and oversight measures to rein in SAP
expenses164 that it felt the DOD brazenly “ha[d] been hiding…from the Congress” up to that
time.165 Before March 1 of each year, the DOD is now required to submit to the “defense
committees”166 a report that lays out each existing SAP‟s “brief description,” its anticipated “major
milestones,” its actual cost in prior fiscal years, and its estimated cost for the four succeeding fiscal
years.167 Further, before February 1 of each year, the DOD must submit to the same committees a
report on the existence of “each new SAP” created since the prior year‟s report, its estimated “total
program cost,” and any existing programs or technologies similar to the SAP.168 Significant
amendments in 1991 added that the DOD cannot create any new SAP until after 30 days‟ notice to
the same committees has passed,169 and the DOD must notify the same committees at least 14 days
before any change in the classification level of an existing SAP, unless identified “exceptional
circumstances” necessitate a shorter notice period.170
At first blush this may all seem a model of diligent budgetary oversight, but there is a catch:
the Secretary of Defense has discretion to “waive” any or all of these requirements if he or she
“determines…on a case-by-case basis” that such reporting would “adversely affect the national
security,” in which case the Secretary need only “provide” the withheld information to the
chairperson and ranking minority member of each of the six defense committees.171 In actual
practice, the Secretary‟s explanation to this informal “Gang of Twelve” is strictly oral.172 As such,
just how many of the approximately 150-plus DOD-approved SAPs have actually attained “waived”
status, colloquially called the “blackest of the black,” might be known by this Gang of Twelve,
SAPOC members, the Secretary of Defense, and perhaps the President, but certainly no ordinary
member of Congress.173
161
162
See infra notes 163-183 and accompanying text
163
See generally Weiner, supra note 35, at 93-95.
164
See generally National Defense Authorization Act for Fiscal Years 1988 and 1989, Pub. L. No. 100-180, §§ 1131-1133, 101 Stat. 1019,
1150-1153 (codified at 10 U.S.C. § 119).
165
Weiner, supra note 35, at 95 (citing Letter from House Armed Services Committee Chairman Les Aspin to Secretary of Defense Caspar
Weinberger (Jan. 16, 1986)).
166
This phrase is defined as encompassing six bodies: the Armed Services Committees, Appropriations Committees, and Defense
Appropriations Subcommittees of the House and Senate. 10 U.S.C. § 119(g). Membership within these parameters varies depending on seat
overlap, but totals 173 out of 535 Congressmembers in the present 155th Congress.
167
10 U.S.C. § 119(a)(1)-(2).
168
10 U.S.C. § 119(b) (emphasis added).
169
National Defense Authorization Act for Fiscal Year 1991, Pub.L. No. 101-510, § 1482 (1991) (amending 10 U.S.C. § 119(f)).
170
National Defense Authorization Act for Fiscal Year 1991, Pub.L. No. 101-510, § 1461 (1990) (amending 10 U.S.C. § 119(c)).
171
10 U.S.C. § 119(e). The only provision not subject to the waiver provision is a requirement that the DOD “promptly notify” Congress of
the general criteria used to designate SAPs, which is hardly sensitive information. 10 U.S.C. § 119(d).
172
Senate Commission on Protecting and Reducing Government Secrecy, supra note 140, at 26; compare id. with supra note 107, describing
the similar “Gang of Eight” privy to especially sensitive intelligence operations information.
173
Sweetman, supra note 147.
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As with the CIA black budget, or perhaps more so, any useful level of detail about the DOD
black budget has typically eluded Congressmembers not among the 173-member exclusive club
gated off by the phrase “defense committees,” or the Gang of Twelve gated off by DOD
“waivers.”174 Even years after the 1987 oversight reform, Rep. Denny Smith (R-OR) lamented that
the Pentagon “control[s] what Congress gets and sees. As a [C]ongressman, I can‟t get information.
… They don‟t want to have us mucking around in their budget.”175 Some freshman
Congressmembers on the very committees that are supposed to be privy had not even heard of the
black budget when asked.176 Even after the 1991 reform opening defense appropriations‟ “classified
annex” to ordinary Congressmembers,177 it became apparent that it was not frequently accessed and
that its level of detail was not particularly informative.178 In just one briefly publicized example
from 1998, House Space and Aeronautics Subcommittee Chairman Dana Rohrabacher (R-CA) sent
a letter to President Clinton requesting information regarding a persistently reported hypersonic
reconnaissance aircraft and similar aircraft which, supposing they existed, would use technology
that would be extremely useful to the civilian space program‟s potentially duplicative development
of reusable launch vehicles, and thus would be essential to determining how much money should be
appropriated to the civilian space program‟s research and development budget.179 This same
concern had already been voiced several years earlier by the Joint Security Commission, which was
convened by the DOD to revamp its compartmentation system and came to recommend that the
DOD better “ensure reciprocity and eliminate redundancy” because it had often “pa[id] several
times over for the same technology or application developed under different special programs
within different agencies.”180 An interesting argument, but in the end, the President‟s reply to
Rohrenbacher was nothing more informative than “a letter acknowledging [his] letter” with no
additional answer to the Representative‟s specific requests,181 and his further attempts to obtain that
information “were constantly frustrated” until eventually abandoned.182 Stonewalling like this
became so epidemic that a House Report in 1999 openly chastised the Air Force and Army for
procurement “abuses” that “continue[d] to ignore and violate a wide range of appropriations
174
175
Weiner, supra note 35, at 18.
176
Id. at 16.
177
178
The Clinton Budget, supra note 52 (“While the Congressional committees overseeing military appropriations and intelligence have the
power to review the black budget, Congress as a whole is generally unaware of its contents when it approves the spending.”).
179
Rohrabacher Wants Clinton to Declassify „Aurora‟ Technology, 186 AEROSPACE DAILY 10 (Apr. 10, 1998).
180
Joint Security Commission, Redefining Security, A Report to the Secretary of Defense and the Director of Central Intelligence Ch. 2 (Feb.
28, 1994), available at http://www.fas.org/sgp/library/jsc/chap2.html (citing as support for its recommendation a past example where “[t]wo
military services and the DoE ha[d] programs involving the same technological application. One military service classified its program as
Top Secret Special Access with a deadly force protection requirement. The other military service classified its program as Secret Special
Access with little more than tight need-to-know protection applied. The DoE classified its program as collateral Secret, adopting
discretionary need-to-know procedures.”).
181
Nick Cook, Billion Dollar Secret (The Learning Channel broadcast 1999) (statement of Rep. Rohrabacher) (“It has not been verified to
me, through legitimate channels, that the „Aurora‟ exists, and thus, if it does exist, I have not been able to find out the information about the
project that I would need to know, as Chairman of the Space Subcommittee,…to see that technologies that were developed for the „Aurora‟
could be part of our calculations as to how much should go into our…space budget. … The only word back that I received from the President
was a letter acknowledging my letter, and we haven‟t received a letter answering my specific requests about…black programs, especially
about „Aurora‟ if it exists.”) (emphasis added).
182
Frank Bures, Into the Black: Nick Cook, a respected military journalist, describes his foray into a hidden “black world” where powerful
technologies of warfare are born, THE ATLANTIC (Sept. 5, 2002), available at http://www.theatlantic.com/doc/200209u/int2002-09-05.
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practices and acquisition rules” relating to, inter alia, allocation of funds to specified purposes and
full reporting on SAPs, but no major statutory reform resulted from this finding.183
B. CONSTITUTIONAL DIMENSIONS
1. Plain Text
The two constitutional provisions most implicated by the black budget can be found at
Article I, Section 9, Clause 7, which can be broken into two distinct clauses with related but
separate histories.184 The first, often called the Appropriations Clause, simply provides that “No
Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law.”185
The second, sometimes called the Account Clause, provides that “a regular Statement and Account
of the Receipts and Expenditures of all public Money shall be published from time to time.”186 Less
pertinent, though notable for purposes of contrast, are the Journal Clause, which provides that
“[e]ach House shall keep a Journal of its Proceedings, and from time to time publish the same,
excepting such Parts as may in their Judgment require Secrecy,”187 the State of the Union Clause,
which provides that the President “shall from time to time give to the Congress Information of the
State of the Union,”188 and the Rulemaking Clause, which provides that “[e]ach House may
determine the Rules of its Proceedings, punish its Members for disorderly Behaviour, and, with the
Concurrence of two thirds, expel a Member.”189
183
See H.R. Rep. 106-244, 106th Cong. (1999):
“[T]he [Appropriations] Committee finds that both in execution of funds provided in appropriations acts and in its fiscal year 2000
budget submission the Air Force acquisition community continues to ignore and violate a wide range of appropriations practices
and acquisition rules. Details on these specific instances can be found elsewhere in this report, but a short summary of such Air
Force abuses includes:
(a) In its fiscal year 2000 budget the Air Force continues to blithely ignore specific Committee direction and law intended to
ensure that funds appropriated for one purpose – for example, weapons procurement – are in fact used for that purpose and
not for other efforts, such as research and development, by:
(1) Requesting hundreds of millions of dollars in various procurement programs, when in fact the intended use is to support
operation and maintenance funding needs (in violation of DoD policy);
(2) Requesting substantial procurement funds for a program (the F-22 fighter) when in fact the use of the funds is for
development (in violation of specific Congressional direction), and
(3) Requesting substantial development funds for a program (the MILSTAR satellite), when the intent is to use the funds
for procurement (in violation of a provision of law);...
(c) Initiation of a new Special Access Program without prior Congressional notification as required by law.”
Regarding the Army, it has in several instances ignored specific Committee or House-Senate conference report direction on major
programs, to include...explicitly ignoring fiscal year 1999 conference committee direction and using Advanced Concept Technology
Demonstration funds for the Line-of-Sight Tank (LOSAT) program.” (emphasis added).
184
See U.S. CONST. art. I, § 9, cl. 7.
185
Id.
186
Id. Compare id. with the Journal Clause, U.S. CONST. art. I, § 5, cl. 3 (“Each House shall keep a Journal of its Proceedings, and from time
to time publish the same, excepting such Parts as may in their Judgment require Secrecy”) (emphasis added).
187
U.S. CONST. art. I, § 5, cl. 3.
188
U.S. CONST. art. II, § 3.
189
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2. Drafting and Ratification History

a. The Appropriations Clause
The history of the Appopriations Clause can be considered a mere continuation of a
centuries-old struggle between Parliament and the Crown for the “power of the purse,” dating back
at least as far as King Edward I‟s concession in the 1297 Confirmation of the Charters that the
Crown could no longer levy “taxes…except by the common consent of the whole Kingdom,”
namely, Parliament.190 Within a half-century this gradually progressed to Parliament providing
funds to the Crown based on strict conditions for how they had to be spent,191 by the 1660s it had
become an “indisputable principle” that funds appropriated by Parliament could only be spent for
particular purposes specified by Parliament,192 and by 1688 Parliament had begun including in
appropriation statutes terms expressly providing that the sums appropriated “may not be diverted or
applyed [sic] to any other Purpose.”193
The colonial legislatures naturally followed the Parliament‟s model as a check on local
military operations, and the need to continue legislative control over appropriations was presumed
such a central feature of a sound separation of powers that the Appropriations Clause was approved
at the Constitutional Convention with little recorded controversy194 save for a brief debate between
large states and small states over whether appropriations should only originate in the lower house
without upper-house modification as had been the practice in Britain,195 which was ultimately
settled with the adoption of a resolution that appropriations be “made by law,” i.e. bicamerally as
any other statute.196
Further support for the centrality of the appropriations power to limiting the Executive can
be seen in the ratification debates, in which Antifederalists vehemently argued that the Army
Clause197 risked oppression by “a standing army, that engine of arbitrary power,” and the
Federalists‟ frequent rebuttal was the Congress‟ retaining the appropriations power to prevent just
that eventuality.198 As James Madison so aptly put it in Federalist No. 58, the “power over the purse
may, in fact, be regarded as the most complete and effectual weapon with which any constitution
190
Sen. Robert Byrd, The Control of the Purse and the Line Item Veto Act, 35 HARV. J. ON LEGIS. 297, 301 (citing GOLDWYN ALBERT
SMITH, A HISTORY OF ENGLAND 119 (3d ed. 1966)).
191
Id. at 302 (citing PAUL EINZIG, THE CONTROL OF THE PURSE: PROGRESS AND DECLINE OF PARLIAMENT‟S FINANCIAL CONTROL 79
(1959)) (noting as one example the House of Commons‟ 1340 grant to Edward III on the condition that it “shall be put and spent upon the
Maintenance and Safeguard of our said Realm of England, and on Wars in Scotland, France and Gascoign, and in no places elsewhere during
the said Wars”) (emphasis added).
192
The Honorable M. Blane Michael, The Power of History to Stir a Man‟s Blood: Senator Robert C. Byrd in the Line Item Veto Debate, 108
W. VA. L. REV. 593, 602 (2006).
193
Peter Raven-Hansen and William C. Banks, Pulling the Purse Strings of the Commander in Chief, 80 VA. L. REV. 833, 891-892 (1994)
(citing Gerhard Casper, Appropriations of Power, 13 U. ARK. LITTLE ROCK L.J. 1, 4 (1990) (quoting 1 W. & M., 2d Sess., ch. 1, s 45 ff
(1689) (Eng.)); Einzig, supra note 191, at 159).
194
Id. at 892-893.
195
See, e.g., James Madison, Notes of Debates in the Federal Convention of 1787, Monday, Aug. 13 (1787), available at
http://teachingamericanhistory.org/convention/debates/0813.html#20r (statements of delegates Randolph and Mason). Computer searches of
Madison‟s notes as well as Max Farrand‟s The Records of the Federal Convention of 1787 uncover no other significant debate on the several
variations of the Appropriations Clause proposed. See generally MAX FARRAND, THE RECORDS OF THE FEDERAL CONVENTION OF 1787
(New Haven: Yale University Press, 1911), available at
http://oll.libertyfund.org/?option=com_staticxt&staticfile=show.php%3Ftitle=1785&Itemid=27.
196
See James Madison, Notes of Debates in the Federal Convention of 1787, Wednesday, Sept. 5 (1787), available at
http://teachingamericanhistory.org/convention/debates/0905.html (proposal by Mr. Brearley of a Committee Report on the new wording,
which was postponed); James Madison, Notes of Debates in the Federal Convention of 1787, Saturday, Sept. 8 (1787), available at
http://teachingamericanhistory.org/convention/debates/0908.html (adopting the new wording).
197
198
Raven-Hansen and Banks, supra note 193, at 895-896.
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can arm the immediate representatives of the people, for obtaining a redress of every grievance, and
for carrying into effect every just and salutary measure.”199 Alexander Hamilton echoed in
Federalist No. 30 that “[m]oney is, with propriety, considered as the vital principle of the body
politic; as that which sustains its life and motion, and enables it to perform its most essential
functions,” such that Congress‟ exclusive power over money could render impotent any Executive
that might overstep its bounds.200 Similar assurances reverberated throughout state conventions,
such as where Wilson Nicholas of Virginia stressed that the success of Parliament at restraining
monarchs with the power of the purse was a testament to the considerably stronger Congress‟ ability
to do the same,201 or where Richard Speight of North Carolina downplayed the the Commander-in-
Chief Clause because Congress “could certainly prevent any abuse of that authority in the President
– for it alone had the means of supporting armies,”202 among countless other examples.203 To say
that Congress‟ power of the purse was a pivotal factor in eventual ratification of the hotly debated
Constitution would surely be an understatement.
Although the Appropriations Clause does not specifically define the term “appropriation,”
the context of these debates treated it as a very general power of Congress to authorize funds upon
such conditions as it sees fit,204 and the U.S. Supreme Court later reaffirmed in Hart‟s Case that the
term broadly means “absolute control of the moneys of the United States.”205 Thus, as the D.C.
Circuit in Harrington v. Bush and the Court of Federal Claims in AINS, Inc. v. U.S. have made
clear, “appropriation” is “not self-defining” and Congress has plenary power to determine its
meaning.206 Congress has exercised this power to explicitly define “appropriation” as any statutory
delegation of “authority making amounts available for obligation or expenditure,”207 so long as said
delegation is explicit and not ostensibly implied.208 As such, no particular level of specificity is
required for appropriation line items.209
b. The Account Clause
Though the Account Clause and Appropriations Clause were proposed separately and are
separated by a semicolon, their ultimate juxtaposition reflects the fact that they logically
complement one another,210 as did their British analogues.211 Specifically, almost as far back as
199
Byrd, supra note 190, at 306 (citing THE FEDERALIST NO. 58, at 359 (James Madison) (Clinton Rossiter ed., 1961)).
200
Id. (citing THE FEDERALIST NO. 30, at 188 (Alexander Hamilton) (Clinton Rossiter ed., 1961)).
201
Raven-Hansen and Banks, supra note 193, at 896 (citing “3 THE DEBATES IN THE SEVERAL STATE CONVENTIONS ON THE ADOPTION OF
THE FEDERAL CONSTITUTION 316 (Jonathan Elliot ed., Philadelphia, J.B. Lippincott Co. 1836), available at
http://files.libertyfund.org/files/1907/1314.03_Bk.pdf).
202
Id. (citing 4 THE DEBATES IN THE SEVERAL STATE CONVENTIONS ON THE ADOPTION OF THE FEDERAL CONSTITUTION 114 (Jonathan
Elliot ed., Philadelphia, J.B. Lippincott Co. 1836), available at http://files.libertyfund.org/files/1908/1314.04_Bk.pdf).
203
Id. at n.332.
204
205
Hart's Case, 1800 WL 1243, at *19 (Ct. Cl. 1880), aff'd, 118 U.S. 62 (1886).
206
See Harrington v. Bush, 553 F.2d 190, 194-195 (D.C. Cir. 1977); AINS, Inc. v. U.S., 56 Fed.Cl. 522, 537-538 (2003).
207
31 U.S.C. § 701(2)(C); see also AINS, 56 Fed.Cl. at 538 n.24 (citing United States Senate, Committee on the Budget, The Congressional
Budget Process, An Explanation, Appendix J Glossary (1998) (defining “appropriations,” as an “act of Congress that permits Federal
Agencies to incur obligations and to make payments out of the Treasury for specified purposes.”)).
208
31 U.S.C.A. § 1301(d) (“A law may be construed to make an appropriation…only if the law specifically states that an appropriation is
made….”).
209
See U.S. v. State Bridge Comm‟n, 109 F.Supp. 690, 694 (E.D. Mich. 1953) (“Congress is not required to set out with particularity each
item in an appropriation as a requisite to validity”); cf. Halperin, 629 F.2d at 161-162 (citing 2 Annals of Congress 302 (1792)) ("The earliest
statements and accounts of public expenditures were not more specific than each „head of appropriation‟… extremely detailed accounting
would be „impracticable.‟”).
210
See Kate Stith, Congress‟ Power of the Purse, 97 YALE L.J. 1343, 1357 n.63-65 (1988).
211
Raven-Hansen and Banks, supra note 193, 891 (citing Einzig, supra note 191, at 79).
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Parliament obtained appropriation powers, it used its leverage over military supply to demand that
the Crown provide a detailed account as to how appropriated funds were spent.212 This was a logical
step, of course, because there would be no means for Parliament to enforce conditions to its
appropriations without a record of whether the Crown actually complied.213 An appropriation power
with no enforcement mechanism is no power at all.214
Likely with this history and rationale in mind, George Mason proposed on the third-to-last
day of the four-month Constitutional Convention that the final draft also require “that an Account of
the public expenditures should be annually published.”215 This met with some brief controversy,
with Gouverneur Morris and Thomas Fitzsimmons scoffing that compliance would be “impossible”
in practice.216 Rufus King elaborated that because the term “expenditures” would connote “every
minute schilling,” the monthly accounting of which would be “impracticable,” with the result that
“Cong[ress] might indeed make a monthly publication” but only in “such general statements as
would afford no satisfactory information.”217 James Wilson noted without elaboration that “[m]any
operations of finance can not be properly published at certain times.”218 James Madison noted that a
similar half-year requirement in the Articles of Confederation had proven so difficult that the actual
practice had “ceased altogether,” so he proposed to replace “annually” with the more convenient
“from time to time,” which would “leave enough to the discretion of the Legislature” in terms of
frequency.219 This revision was adopted without further discussion, suggesting that the delegates‟
sole bone of contention was simply how frequently said publication should be issued by the
Congress, not public access or line items‟ degree of specificity.220
Although The Federalist curiously makes no mention of the Account Clause or
expenditures‟ accounting in general, the topic was broached repeatedly in state ratification
conventions.221 At the Maryland House of Delegates, James McHenry assured his colleagues that
Article I, Section 9, Clause 7 “could meet with no opposition” precisely because “the People who
give their Money ought to know in what manner it is expended.”222 In Massachussetts, James
Bowdoin‟s introduction of the Constitution‟s “great checks” on federal abuse and corruption added
“several other very essential ones” including the Account Clause.223
In New York, faced with repeated arguments that the new Congress would be corrupted
behind the scenes, William Livingston reminded his colleagues, “[a]re not Congress to publish,
from time to time, an account of their receipts and expenditures?”224 Faced with similar corruption
212
Id.
213
See Stith, supra note 210, at 1357 n.63-65.
214
Id.
215
James Madison, Notes of Debates in the Federal Convention of 1787, Friday, Sept. 14 (1787), available at
http://teachingamericanhistory.org/convention/debates/0914.html (statement of delegate Mason).
216
Id.
217
Id. (emphasis added).
218
Id. (statement of delegate Wilson).
219
Id. (statement of delegate Madison).
220
See generally id.
221
222
See MAX FARRAND, 3 THE RECORDS OF THE FEDERAL CONVENTION OF 1787 149-150 (New Haven: Yale University Press, 1911),
available at http://files.libertyfund.org/files/1787/0544-03_Bk.pdf (emphasis added).
223
2 THE DEBATES IN THE SEVERAL STATE CONVENTIONS ON THE ADOPTION OF THE FEDERAL CONSTITUTION 86 (Jonathan Elliot ed.,
Philadelphia, J.B. Lippincott Co. 1836), available at http://files.libertyfund.org/files/1907/1314.02_Bk.pdf (emphasis added).
224
21
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arguments just three days later, Livingston reiterated that the Account Clause was intended to
provide an essential check on abuse and waste:
“You will give up to your state legislatures everything dear and valuable; but you
will give no power to Congress, because it may be abused; you will give them no
revenue, because the public treasures may be squandered. But do you not see here a
capital check? Congress are to publish, from time to time, an account of their
receipts and expenditures. These may be compared together; and if the former, year
after year, exceed the latter, the corruption will be detected, and the people may use
the constitutional mode of redress. … I beg the committee to keep in mind, as an
important idea, that the accounts of the general government are, „from time to time,‟
to be submitted to the public inspection.”225
When a delegate challenged this proposition on the ground that the ambiguous “from time to time”
revision could conceivably mean “from century to century,” William Livingston remarked that
because “the public w[as] more anxious about any thing under heaven than the expenditure of
money,” “[t]here can be no doubt” that representatives would “gratify their constituents with full
and frequent statements of the public accounts” as the Clause requires.226 This ambiguity still
remained of such concern to the delegates that they included in their submission of ratification to
Congress a recommended amendment construing “from time to time” to mean “at least once every
year,”227 as did at least Rhode Island,228 Virginia,229 and North Carolina,230 if not more.231
Particularly illuminating was a lively exchange between Mason and Madison at the Virginia
Convention, where the Clause‟s very creator, Mason, presciently “apprehended” the phrase “from
time to time” because its ambiguity could allow the government to conceal expenditures from the
public “forever.”232 Mason noted, without attributing to anyone in particular, a supposed rationale
for this “ambiguous expression” that perhaps some “matters relative to military operations and
foreign negotiations” occasionally necessitated secrecy,233 but he clearly distinguished expenditures
from such matters and reaffirmed his intention in proposing the Clause that “[t]he people…had a
right to know the expenditures of their money” and he “did not conceive that [they] ought ever to be
concealed,” lest a habit of secrecy “afford opportunities of misapplying the public money, and
sheltering those who did it.”234 This fear of infinite delay echoed two of Anti-Federalist leader
Patrick Henry‟s lengthy diatribes in the same hall in preceding weeks:
225
Id. at 345-347 (emphasis added).
226
227
Id. at 407.
228
Philadelphia, J.B. Lippincott Co. 1836), available at http://files.libertyfund.org/files/1907/1314.01_Bk.pdf.
229
230
231
Elliot‟s searchable record of the ratification debates, includes records of widely varying levels of completeness for Massachussetts,
Connecticut, New Hampshire, New York, Pennsylvania, Maryland, Virginia, North Carolina, and South Carolina, and leaves out four states
entirely, so the historical evidence is necessarily spotty.
232
3 DEBATES, supra note 229, at 459-460.
233
Id. It is unclear whether Mason‟s reference to the rationale for “this ambiguous expression” had in mind the identical use of “from time to
time” in the Journal Clause, U.S. CONST. art. I, § 5, cl. 3, which explicitly “except[s] such Parts as [Congress] may in their Judgment require
Secrecy,” or the Account Clause, which conspicuously does not. Id. This would be a reasonable interpretation, however, given that
Madison‟s prior arguments about secrecy in treaty negotiations and military matters was in a context including the Journal Clause, which was
far more controversial. See id. at 331.
234
22
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“Another beautiful feature of this Constitution is, the publication from time to time
of the receipts and expenditures of the public money. This expression, from time to
time, is very indefinite and indeterminate: it may extend to a century. Grant that any
of them are wicked; they may squander the public money so as to ruin you, and yet
this expression will give you no redress. I say they may ruin you; for where, sir, is
the responsibility? The yeas and nays will show you nothing, unless they be fools as
well as knaves; for, after having wickedly trampled on the rights of the people, they
would act like fools indeed, were they to publish and divulge their iniquity, when
they have it equally in their power to suppress and conceal it…235
We are told, by that paper, that a regular statement and account of the receipts and
expenditures of all public money shall be published from time to time. Here is a
beautiful check! What time? Here is the utmost latitude left. If those who are in
Congress please to put that construction upon it, the words of the Constitution will be
satisfied by publishing those accounts once in one hundred years. They may publish
or not, as they please. Is this like the present despised system, whereby the accounts
are to be published monthly?”236
Although Madison had made a comment several days earlier, in the separate context of an
ongoing discussion of secrecy in treaty negotiations and related congressional proceedings, that the
government under both the Articles and the proposed Constitution had discretion under “[t]hat part
which authorizes the government to withhold from the public knowledge what in their judgment
may require secrecy,”237 his rebuttal to Mason‟s and Henry‟s criticisms of the Account Clause in
particular was not based on secrecy grounds, but rather limited to the same administrative
convenience grounds discussed in Philadelphia: were the required publication period to be too short,
the accounting “would not be so full and connected as would be necessary for a thorough
comprehension of them, and detection of any errors,” whereas allowing some flexibility on
frequency would allow for a level of detail more “full and satisfactory to the public.”238 Henry Lee
also defended the revision, not on the grounds of secrecy, but instead because,239 just as Lee had
argued in a speech a week earlier,240 Mason‟s apprehension was much ado about nothing: in any
“common acceptation of language” the phrase “from time to time” obviously meant “short,
convenient periods” approximating “one year, or a shorter term,” and anyone “who would neglect
this provision would disobey the most pointed directions.”241 Mason replied that the Articles of
Confederation had been more favorable than “depending on men‟s virtue to publish…or not,” but
Madison reiterated, as he had in Philadelphia, that the “inconveniences which had been experienced
235
Id. at 60-61.
236
237
Id. at 331.
238
239
240
See id. at 184-185 (“The honorable gentleman objects to the publication from time to time, as being ambiguous and uncertain. Does not
from time to time signify convenient time? If it admits of an extension of time, does it not equally admit of publishing the accounts at very
short periods? For argument sake, say they may postpone the publications of the public accounts to the expiration of every ten years: will
their constituents be satisfied with this conduct? Will they not discard them, and elect other men, who will publish the accounts as often as
they ought? It is also in their power to publish every ten days. Is it not more probable that they will do their duty than that they will neglect it,
especially as their interest is inseparably connected with their duty? He says they may conceal them for a century. Did you ever hear so trivial
and so captious an argument? I felt when the great genius of the gentleman nodded on that occasion.”) (emphasis added).
241
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from the confederation in that respect” were a major reason he favored the revision, and short
intervals made it impossible to “adjust the public accounts in any satisfactory manner.”242
C. OBSTACLES TO JUDICIAL ENFORCEMENT
1. Article III Standing
a. Taxpayer or Citizen Standing
Despite the central importance of the Appropriation and Account Clauses to the
constitutional balance of powers, it took nearly two centuries for the U.S. Supreme Court to directly
address their asserted violation.243 In U.S. v. Richardson, plaintiff William Richardson had mailed
requests to the Treasury Department for a detailed statement of CIA expenditures, or at least an
opinion from the Attorney General as to whether the CIAA‟s concealment of said expenditures
comported with the Appropriation and Account Clauses.244 Upon the Treasury Department‟s
unsurprising rejection of these requests on the ground that it did not even possess the information in
question,245 Richardson filed a complaint in the U.S. District Court for the Western District of
Pennsylvania, asserting from his position as a citizen, voter, and taxpayer that 50 U.S.C. 403j(b),
which allows the CIA to account for its expenditures “solely on the certificate of the [DCIA],”
violated the Appropriation and Account Clauses and necessitated a writ of mandamus enjoining the
Treasury Department‟s continued publication of budgets that omit these expenditures.246 The
District Court dismissed on the primary ground that Richardson lacked standing.247 Sitting en banc,
a Third Circuit Court of Appeals reversed on a 6-3 vote, finding that the public right created by the
Account Clause afforded the Court mandamus jurisdiction,248 and Richardson personally had
standing because actually knowing how much had been appropriated to what purposes would be
“integrally related” to a valid taxpayer challenge based on the Taxing and Spending Clause.249
The U.S. Supreme Court granted certiorari and a 5-4 majority reversed solely on standing
grounds.250 Starting from the basic principle that the judiciary‟s Article III power is predicated on
some “case[] or controvers[y]” to be decided,251 which the Court had traditionally interpreted to
mean an instance where a plaintiff not only asserts the unconstitutionality of a law but also has
“sustained or is immediately in danger of sustaining some direct injury” as opposed to some
242
243
418 U.S. 166 (1974).
244
Id. at 168. Richardson would come to make something of a name for himself repeatedly crusading against CIA fiscal secrecy, with one
prior suit and two subsequent ones, which found no more success than the case that reached the Supreme Court. See, e.g., Richardson v.
Sokol, 409 F.2d 3 (3d Cir. 1969) (denying jurisdiction due to a $10,000 amount-in-controversy requirement for federal question suits in
effect at the time), cert. denied, 90 S. Ct. 379 (1969); Richardson v. Spahr, 416 F.Supp. 752 (D.C. Pa. 1976), aff‟d, 547 F.2d 1163 (3d Cir.
1976), cert. denied, 98 S. Ct. 111 (1977) (FOIA case not deciding on the constitutional issue, even though Richardson‟s petition for certiorari
claims that the issue was raised in the lower court); Richardson v. Miller, 504 F.Supp. 1039 (D.C. Pa. 1980) (circumventing res judicata by
disputing his tax liability imposed by the Internal Revenue Code, in order to raise another Account Clause claim, as well as improper
delegation and Army Clause claims, only to again lose to a wholesale adoption of the Supreme Court‟s Flast analysis in the 1974 case), aff‟d,
681 F.2d 808 (3d Cir. 1982), cert. denied, 103 S.Ct. 728 (1983).
245
Richardson v. U.S., 465 F.2d 844, 848 (3d Cir. 1971).
246
Id. at 168-169.
247
Id. at 169.
248
Richardson, 465 F.2d at 849-851 (citing 28 U.S.C. § 1361 (“The district courts shall have original jurisdiction of any action in the nature
of mandamus to compel an officer or employee of the U.S. or any agency thereof to perform a duty owed to the plaintiff.”) (emphasis
added)).
249
Id. at 851-854. The court also held that Richardson‟s assertion of a constitutional violation statutorily entitled the case to a three-judge
panel instead of the single judge that had issued the dismissal. Id. at 854-857.
250
See generally Richardson, 418 U.S. 166.
251
Id. at 171 (citing Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803)); see also U.S. CONST. art. III, § 2.
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indefinite injury shared “in common with people generally,”252 the Court proceeded to clarify the
impact of its recent decision in Flast v. Cohen.253 In Flast, the Court sought to alleviate “confusion”
by adopting a two-pronged test affording Article III standing to a plaintiff who establishes a
sufficient “nexus” between the asserted constitutional violation and his or her taxpayer status by (1)
challenging an actual exercise of the Taxing and Spending Clause, and (2) doing so on the basis of
constitutional provisions specifically limiting that particular Clause, such as the Establishment
Clause in the case of Flast.254 While this opened the door to somewhat more taxpayer standing than
otherwise, the Flast Court was very careful to emphasize that the taxpayer plaintiff must
nonetheless have a “personal stake” and cannot use the courts as a “forum in which to
air…generalized grievances” about the conduct or structure of government.255 The Richardson
majority also noted that should one fall short of the Flast criteria, the traditional citizen-standing
test was a default rule “left undisturbed” by Flast.256
Applying Flast in a mechanical fashion, the Court found that Richardson dispositively failed
to satisfy Flast‟s first prong because the CIAA itself was not technically an appropriation exercising
the Taxing and Spending Clause, but rather nothing more than a statute regulating the CIA and what
its accounting procedures should be, which was exactly the sort of “incidental expenditure of tax
funds in the administration of an essentially regulatory statute” that Flast had distinguished from
exercise of the Taxing and Spending Clause.257 Moreover, Richardson failed to satisfy Flast‟s
second prong because he cited to no constitutional provision understood to limit Congress‟ Taxing
and Spending Clause power in particular, but rather a provision supposedly inconsistent with
Congress‟ failure to require more detailed accounting from the Executive.258 There being no Flast
taxpayer-standing end-run around traditional citizen-standing analysis, the Court made clear that
Richardson‟s money being spent on unknown acts and Richardson‟s inability to make an informed
use of the franchise amounted to injuries “plainly undifferentiated and „common to all members of
the public,‟” so he had no standing as an individual.259 Richardson argued that if a citizen had no
standing to litigate the issue, then no one would,260 but the Court only took this fact to support its
impression that the issue was originally committed to enforcement by Congress, and by extension
the political process that selects Congress, in which Richardson was perfectly capable of voting and
persuading others to vote.261
Notably, Richardson‟s heavily fractured decision may call into question its breadth and
constitutional pedigree over the long term, as at least the D.C. Circuit has recognized to date.262
252
Id. at 172 (citing Frothingham v. Mellon, 262 U.S. 447, 487-488 (1923)); see also Pietsch v. Bush, 755 F. Supp. 62, 67 (E.D.N.Y. 1991)
(“[T]he Plaintiff does not have standing merely because as a citizen…he has an „interest‟ in seeing the Government act constitutionally.”).
253
Id. at 172 (citing Flast v. Cohen, 392 U.S. 83 (1968)).
254
Id. at 173.
255
Id. at 173-174.
256
Id. at 174-175.
257
Id. at 175; see also id. at 182 (Powell, J., concurring) (citing Flast, 392 U.S. at 102-103).
258
Id.
259
Id. at 176-177.
260
Id. at 179. In a companion case, the Court put this notion to rest even more bluntly: “[t]he assumption that if [plaintiffs] have no standing
to sue, no one would have standing, is not a reason to find standing.” Schlesinger v. Reservists Committee to Stop the War, 418 U.S. 208,
227 (1974) (emphasis added).
261
Id. at 179.
262
See Halperin v. CIA, 629 F.2d 144, 154 (1980) (“Especially in light of the narrow 5-4 margin of decision in Richardson, we do not
overlook the possibility that the Supreme Court could narrow the Richardson holding…. With this possibility in mind, and considering that
judicial economy is best served by our resolving all relevant issues at this stage, we proceed to consider the merits of plaintiff‟s constitutional
claim as an equal alternative ground of our decision.”)
25
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Technically there was only a 4-justice plurality, but because Justice Powell concurred separately
only to note that he would limit taxpayer standing even further than the plurality by “abandon[ing]”
the Flast test outside the Establishment Clause context because it disrupted constitutional
government in an antidemocratic direction, his narrow agreement that there was no Account Clause
standing for taxpayers created a binding majority.263 Justice Douglas‟ dissent agreed with the Third
Circuit‟s logical conclusion that a taxpayer cannot possibly challenge an exercise of the Taxing and
Spending Clause per Flast without first knowing how the money is being spent, and examined
drafting and ratification history of the Account Clause to show that allowing Congress to “read it
out of the Constitution” with respect to specified agencies and limiting the Clause‟s enforcement to
the ballot box would “effectively reduce that clause to a nullity, giving it no purpose at all.”264
Justices Stewart and Marshall would have granted standing on the analogy that an “obligee[‟s]”
denied right to information that an “obligor” has a “particularized and explicit” duty to provide is
indistinguishable from a plaintiff seeking money a defendant is obligated to pay by a private
contract; both exemplify exactly the sort of “Hohlfeldian” “right-duty dispute[]” that the courts are
well-equipped to resolve without any need for “extended analysis, such as the Flast nexus tests.”265
They also argued that Flast‟s holding was strictly limited to its facts of a plaintiff challenging an
exercise of the Taxing and Spending Clause, and thus should not control Richardson‟s claim of an
“entirely different order.”266 Finally, Justice Brennan‟s dissent simply argued that Richardson
established sufficient “injury in fact” by showing not mere violation of the Constitution, but the
deprivation of his personal right to receive information he needed to exercise the franchise.267
b. Standing Ancillary to FOIA Suits
Notwithstanding the precarious balance of votes in Richardson, only one other reported case
– filed by Richardson himself – made another futile attempt at an Account Clause challenge based
on taxpayer standing;268 other Account Clause cases have typically been ancillary to FOIA suits,
such as the seminal Halperin v. CIA.269 In Halperin, plaintiff Morton Halperin sought access to
legal bills and fee arrangements of the CIA‟s outside counsel through a FOIA request and an
alternative argument that concealment of these expenditures violated the Account Clause.270
Although Halperin attempted to distinguish his case from Richardson on the grounds that
263
See id. at 180-197 (Powell, J., concurring).
264
Id. at 197-202 (Douglas, J., dissenting).
265
Id. at 202-205 (Stewart, J. and Marshall, J., dissenting).
266
Id. at 202, 205.
267
Schlesinger, 418 U.S. at 236 (1974) (Brennan, J., dissenting) (expressing his Richardson dissent in this companion case).
268
Richardson v. Miller, 504 F.Supp. 1039 (D.C. Pa. 1980), aff‟d, 681 F.2d 808 (3d Cir. 1982), cert. denied, 103 S.Ct. 728 (1983)
(circumventing res judicata by disputing his tax liability imposed by the Internal Revenue Code, in order to raise another Account Clause
claim, as well as improper delegation and Army Clause claims, only to again lose to a wholesale adoption of the Supreme Court‟s Flast
analysis in the 1974 case).
269
629 F.2d at 145-146. Because the courts have consistently held that statutes protecting intelligence information constitute a statutory
exemption from the FOIA, and that classification of national security information pursuant to executive order is coextensive with a separate
exemption from the FOIA absent a plaintiff‟s showing of outright bad faith on the nondisclosing agency‟s part, for the sake of brevity the
FOIA is placed outside the scope of this article. For more detail on the futility of the FOIA in this context, see, e.g., id. at 147 (citing 5 U.S.C.
§ 552(b)(3)) (“This court has consistently held sections 403(d)(3) and 403g of Title 50 to be exempting statutes of the type described in FOIA
Exemption 3.”); C.I.A. v. Sims, 471 U.S. 159, 164, 168 (1985) (citing the National Security Act of 1947, Pub. L. No. 235, § 102(d)(3), 61
Stat. 496 (1947) (now codified at 50 U.S.C. § 403-1(i)(1)) (holding that § 102(d)(3)‟s authorization of protecting intelligence sources and
methods constituted a FOIA exemption); Hayden v. NSA, 608 F.2d 1381, 1387 (D.C.Cir.1979) (citing 5 U.S.C. § 552(b)(1) (“If [agency]
affidavits provide specific information sufficient to place the documents within the [classified national defense information] exemption
category, if this information is not contradicted in the record, and if there is no evidence in the record of agency bad faith, then summary
judgment is appropriate without [i]n camera review of the documents.”), cert. denied, 446 U.S. 937 (1980).
270
Id. at 146.
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Richardson asserted taxpayer standing whereas Halperin had already obtained standing through his
FOIA claim, the D.C. Circuit reasoned that because the Richardson majority so strongly
emphasized the asserted injury‟s nature being “undifferentiated and common to all members of the
public” and the apparent commitment of the Clause‟s enforcement to congressional and electoral
enforcement, it must have “intended a holding broad enough to cover all challenges to the CIA Act
under the…Account Clause,” not just Richardson‟s narrow facts.271 Because a FOIA plaintiff‟s
deprivation of fiscal information is an injury shared in common with the entire public, FOIA
standing could not extend to the distinct Account Clause challenge.272 Since Halperin, other courts
faced with arguments of FOIA standing for an Account Clause claim have deemed them “easily
disposed of” on the basis of stare decisis.273
c. Servicemember Standing
There being no clear avenue for citizen, taxpayer, or FOIA standing to raise an Account
Clause challenge, one might instead look to a string of circuit-level Vietnam-era cases establishing
the extent to which military personnel may have standing to question the constitutionality of their
orders.274 For example, in Berk v. Laird and Massachussetts v. Laird, the courts explicitly held that
military personnel ordered to a combat zone had standing to challenge the constitutionality of the
absence of a formal declaration of war,275 and courts in cases like Luftig v. McNamara, Mora v.
McNamara, and Orlando v. Laird at least assumed standing in the same circumstances.276 The same
proposition was reiterated with respect to the Gulf War and the Iraq War with little controversy.277
This is no doubt logical in light of ordinary standing analysis: (1) the danger of violent death is a
“concrete” “injury in fact” which (a) is “particularized” in that it is not common to the general
public and (b) is “actual or imminent” since deployment orders set a clear point of no return, (2)
there is a “causal relationship” by which the injury “can fairly be traced to the challenged action”
because the deployment order clearly causes the servicemember to be placed in harm‟s way, and (3)
there is a “likelihood that the injury w[ould] be redressed by a favorable decision” because an
271
Halperin, 629 F.2d at 152.
272
Id. at 153.
273
See, e.g., Aftergood v. CIA, 355 F.Supp.2d 557, 562-563 (D.D.C. 2005).
274
275
Berk v. Laird, 429 F.2d 302, 306 (2d Cir. 1970) (citing U.S. v. Bolton, 192 F.2d 805, 806 (2d Cir. 1951)) (though denying preliminary
injunction because the political question doctrine suggested low probability of success on the merits, nonetheless conceding on the standing
issue that “any question as to the legality of an order sending men to Korea to fight in an „undeclared war‟ should be raised by someone to
whom such an order has been directed,” and Vietnam servicemembers were no different); Massachusetts v. Laird, 451 F.2d 26, 29 (1st Cir.
1971) (though finding the constitutionality of the Vietnam War a nonjusticiable political question committed to the Congress in offensive
contexts and the Executive in defensive contexts, nonetheless stressing that there was not “any merit in the claim that the individual
plaintiffs, particularly those serving in Southeast Asia, lack standing.”).
276
Luftig v. McNamara, 373 F.2d 664 (D.C. Cir. 1967) (though finding illegality of the Vietnam War a nonjusticiable political question,
nonetheless assuming throughout that the servicemember plaintiffs at least had initial standing to assert the constitutional violation), cert.
denied, 87 S.Ct. 2078 (1967); Mora v. McNamara, 387 F.2d 862 (D.C. Cir. 1967) (though affirming dismissal by adopting the same grounds
as Luftig, nonetheless assuming standing), cert. denied, 389 U.S. 934 (1967); Orlando v. Laird, 443 F.2d 1039 (2d Cir. 1971) (though
affirming the District Court‟s decision in the Berk remand that congressional actions ratified executive decisions regarding Vietnam and the
need for a declaration of was was a nonjusticiable political question, nonetheless assuming throughout that the servicemember plaintiffs at
least had initial standing to assert the constitutional violation), cert. denied, 404 U.S. 869 (1971).
277
See, e.g., Ange v. Bush, 752 F.Supp. 509, 512 n. 1 (D.D.C.1990) (“Ange, being a soldier deployed in the Gulf, where he already is in a
situation arguably illegal under the War Powers Resolution and subject to being ordered, at great personal risk, into a war which Congress
may find illegal under the War Powers Resolution, has standing to seek enforcement of that legislation”); cf. Sadowski v. Bush, 293 F. Supp.
2d 15, 20 (D.D.C. 2003) (noting that “[n]ot being in the armed forces of the U.S., [this plaintiff] could not even contend, as the plaintiff had
in Ange v. Bush, that he is subject to military service in the current conflict in Iraq,” implying that servicemember standing would have
remained valid); but see Doe v. Bush, 323 F.3d 133, 135 n.2 (1st Cir. 2003) (in a case with servicemember plaintiffs, declining to address the
standing issue because ripeness doctrine was already dispositive of the case and “[t]here is no required sequence to the consideration of the
various non-merits issues presented,” such as standing).
27
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injunction invalidating the deployment order would presumably stop it from placing the
servicemember in harm‟s way or at least immunize from prosecution for disobeying it.278 Thus far,
the only significant limitation on standing for servicemember plaintiffs can be seen in Mottola v.
Nixon, where the Ninth Circuit made clear that servicemembers on active duty or in the reserves
who have not yet been ordered to a combat zone would not have standing, because they could
identify not an “actual or threatened injury,” but rather only a “speculative possibility” that they
might at some point be deployed to a combat zone in the future.279
d. Congressmember Standing
Beginning in the 1970s, courts expressed a fairly broad conception of standing for
Congressmembers suing for redress of constitutional violations; in the Vietnam-era case of Mitchell
v. Laird, for example, the D.C. Circuit reasoned that a judicial declaration as to constitutionality of
the President‟s waging war after repeal of the Tonkin Gulf Resolution could “bear upon”
congressional plaintiffs‟ duties regarding impeachment, war appropriations, or related legislation,
which sufficed to confer standing.280 In a later case addressing constitutionality of the Gulf War, the
U.S. District Court for the District of Columbia in Dellums v. Bush, relying on a D.C. Circuit
precedent, went so far as to recognize that any unconstitutional act depriving a Congressmember of
his or her ability to exercise “constitutional duties or rights,” such as a President‟s imminent and
allegedly unconstitutional initiation of war depriving Congressmembers of their right to vote for or
against a declaration of war, constituted sufficient actual or imminent injury in fact, causal
relationship, and redressibility to confer standing.281
Despite this trend of broadening Congressmember standing in the D.C. Circuit, the CIA
black budget found a gaping exception in Harrington v. Bush.282 Though the Congressman plaintiff
in Harrington primarily asserted illegality of certain CIA activities, he secondarily argued that “he
[could ]not consider and otherwise act in a legislative capacity with regard to any appropriations
bill” because under then-existing statutes and House procedural rules he was unable to know
whether and to what extent a particular appropriation might be siphoned to an assertedly illegal CIA
activity, and contended that this “impair[ed]…effectiveness” of his vote constituted sufficiently
278
See Northeastern Florida Chapter, General Contractors of America v. City of Jacksonville, 508 U.S. 656, 663-664 (1993) (condensing
traditional standing analysis into this three-pronged breakdown).
279
464 F.2d 178, 179-181 (9th Cir. 1972) (citing Ashton v. U.S., 404 F.2d 95, 97 (8th Cir. 1968) (noting that even supposing that illegality
of the war were a defense to failure to submit to draft induction, the defendant had no standing becauase he had “received no order to go to
Vietnam”), cert. denied, 394 U.S. 960 (1969)) (“[O]nly those under military orders to report to a theatre of hostilities have the requisite
standing to challenge the legality of military operations in such a theatre”).
In a similar vein, though less pertinent to any modern challenge, courts tend to deny standing for a servicemember who raises his
or her constitutional challenge as a defense against a prosecution for failure to submit to draft induction, as opposed to a complaint for
injunctive relief, because the former would be “premature.” See, e.g., U.S. v. Camara, 451 F.2d 1122, 1126 (1st Cir. 1971) (citing U.S. v.
Mitchell, 369 F.2d 323, 324 (2d Cir. 1966) (“Regardless of the proof that appellant might present to demonstrate the correlation between the
Selective Service and our nation‟s efforts in Vietnam, as a matter of law the congressional power „to raise and support armies‟ and „to
provide and maintain a navy‟ is a matter quite distinct from the use which the Executive makes of those who have been found qualified and
who have been inducted into the Armed Forces. Whatever action the President may order, or the Congress sanction, cannot impair this
constitutional power of the Congress.”), cert. denied, 386 U.S. 972 (1967)) (“As to the attempted challenge of the illegality of the Vietnam
War, appellant does not surmount the hurdle of standing.”); U.S. v. Owens, 415 F.2d 1308, 1313 (6th Cir. 1969) (citing U.S. v. Bolton, 192
F.2d 805 (2d Cir. 1951) (“So far as the argument of unconstitutionality invokes the possibility that the appellant may be sent to fight in
Korea, we think it is premature. Any question as to the legality of an order sending men to Korea to fight in an „undeclared war‟ should be
raised by someone to whom such an order has been directed, not by the appellant, who might never be ordered abroad for military duty, even
if he reported for induction.”)); Simmons v. U.S., 406 F.2d 456, 460 (5th Cir. 1969), cert. denied, 395 U.S. 982 (1969).
280
488 F.2d 611, 614 (D.C. Cir. 1973).
281
Dellums v. Bush, 752 F.Supp. 1141, 1147-1148 (D.D.C. 1990) (citing Moore v. U.S. House of Representatives, 733 F.2d 946, 950 (D.C.
Cir. 1984)).
282
553 F.2d 190 (D.C. Cir. 1977).
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“significant injury” to confer standing.283 However, the D.C. Circuit found that the precedent on
which Harrington relied – Kennedy v. Sampson‟s invalidation of a pocket veto – was limited to
effective nullification of a specific past vote and of the “constitutionally prescribed followup” of a
future override vote.284 Kennedy did not extend so far as any “concern with the generalized,
amorphous, overall effectiveness” impaired by “uncertainty due to the lack of information as
[to]…future votes” in the abstract.285 Moreover, the Court twice noted that Harrington‟s theory took
an overly “subjective” perspective on his personal effectiveness at legislating without sufficient
information, whereas Kennedy‟s fixation on loss of “official influence” implied an objective
standard based on Constitutional, statutory, and procedural rules defining a Congressmember‟s
powers.286
Kennedy being unavailing, Harrington was left only with traditional standing rules, which
were even less availing because he had suffered no concrete injury and objectively still had every
legal right his colleagues had to vote for a use of the “power of the purse” to restrain CIA activities
should they so choose, notwithstanding any subjective perceptions about “effectiveness.”287
Moreover, whatever Harrington‟s “subjective…perspective,” importantly his “fellow legislators‟
perspective” had been that he and a “large majority of his fellow members of the House” would be
more effective legislators without access to the classified information sought.288 Thus, Harrington
actually “directed his complaint…at the wrong source”: it was not the Executive that cut Harrington
off from the information he needed to legislate more effectively, but rather the House‟s own
procedural rules, which per the Rulemaking Clause were a strictly legislative realm into which the
judiciary dare not venture.289
The probability of Congressmember standing took another nosedive when the U.S. Supreme
Court first squarely addressed the issue in Raines v. Byrd, where six Congressmembers sued for
declaratory judgment that the Line Item Veto Act (“LIVA”) was unconstitutional.290 The Court
made clear that where Congressmembers assert not an “individual injury” but rather an
“institutional injury” shared by “all Members of Congress…equally,”291 they lack standing absent a
showing of two factors: (1) their votes were “completely nullified” in effect, and (2) but for such
nullification, their votes would have sufficed to defeat or enact a particular legislative Act.292 The
Raines plaintiffs‟ votes against the LIVA were given “full effect” and their votes were not sufficient
to defeat the overwhelming majority vote in favor of the LIVA, so neither factor was satisfied with
respect to the LIVA.293 Rather, “[t]hey simply lost.”294
283
Id. at 200-203.
284
Id. at 211.
285
Id.
286
Id. at 203, 212.
287
Id. at 212-214.
288
Id. at 203, 212.
289
Id. at 214 (citing U.S. CONST. art. I, § 5, cl. 2) (“Each House may determine the Rules of its Proceedings, punish its Members for
disorderly Behaviour, and, with the Concurrence of two thirds, expel a Member.”).
290
521 U.S. 811 (1997). The closest things to analogous cases were Powell v. McCormack, 395 U.S. 486, 496 (1969), which was limited to
the facts of a plaintiff‟s individual exclusion from the House, rather than a mere challenge to the constitutionality of a duly passed statute,
and thus not controlling, and Coleman v. Miller, 307 U.S. 433, 438, 441, 446 (1939), which was limited to members of a state legislature and
thus only instructive. Id. at 820-823.
291
Id. at 821, 829.
292
Id. at 823.
293
Id. at 824.
294
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As for potential future cancellations of line items per the LIVA, which the Court assumed to
be a sufficiently “ripe” issue,295 the Court examined their Coleman v. Miller precedent and decades
of historical practice to find that the Raines plaintiffs‟ argument “stretches the word
[„effectiveness‟] far beyond the sense in which…Coleman…used it” to address a lieutenant
governor‟s allegedly unconstitutional tie-breaking vote for ratification of a constitutional
amendment, rendering ineffective the 50% vote against it.296 There was a “vast difference between
th[at] level of vote nullification,” where finding the plaintiffs “correct on the merits” would have
rendered their votes sufficient to defeat ratification, and the Raines plaintiffs‟ votes‟ “abstract
dilution” in the sense of uncertainty as to whether the tradeoffs underlying their all-or-nothing votes
would survive piecemeal LIVA cancellations.297
Finally, the Raines Court also cited Justice Powell‟s Richardson concurrence to express its
concern that a broader test for Congressmember standing would impose on the judiciary an
“amorphous general supervision of the operations of government” that would seriously upset the
constitutional separation of powers and entail such “countermajoritarian implications” as to
jeopardize the judiciary‟s “public esteem.”298 With this legitimacy risk in mind, the Court reiterated
the prudential habit that its “standing inquiry has been especially rigorous when reaching the
merits…would force us to decide whether an action taken by one of the other two branches…was
unconstitutional.”299 In a similar vein, Court also mentioned in an interesting footnote that Coleman
was also distinguishable because its focus on state legislators did not raise the same “separation-of-
powers concerns” as did Congressional plaintiffs; though the Court noted that they “need not” make
that an express ground of their decision, their very mention of it suggests that in future cases
Congressmembers might never have standing to assert “institutional injury.”300 Instead, the Court
was prepared to leave the question up to Congress‟ ample legislative remedies, or failing that,
judicial review by plaintiffs who at least have a sufficiently concrete “personal stake” in LIVA
cancellations for the Court to find standing and invalidate the LIVA,301 which indeed happened just
one year later.302
Since Raines, openness of some of the opinion‟s language to various interpretations has
made Raines the subject of a great deal of scholarly debate,303 but its doctrine has not significantly
295
See id. at 817, 825-827. The Supreme Court never specifically decided ripeness, but because it referenced the District Court‟s finding of
ripeness without expressing any disagreement, and later decided the merits of diminution by future cancellations, the Supreme Court
obviously assumed ripeness. See id. (citing Byrd v. Raines, 956 F.Supp. 25 (D.D.C. 1997).
296
Id. at 821-822, 825-827 (citing Coleman, 307 U.S. at 438, 441, 446 (1939)) (emphasis added).
297
298
Id. at 828-829.
299
Id. at 819.
300
Id. at 824 n.8 (“Since we hold that Coleman may be distinguished from the instant case on this ground, we need not decide whether
Coleman may also be distinguished in other ways,” such as the argument that “Coleman has no applicability to a similar suit brought by
federal legislators, since the separation-of-powers concerns present in such a suit were not present in Coleman”).
301
Id. at 829 (“[O]ur conclusion neither deprives Members of Congress of an adequate remedy (since they may repeal the Act), nor
forecloses the Act from constitutional challenge (by someone who suffers judicially cognizable injury as a result of the Act).”).
302
See Clinton v. City of New York, 524 U.S. 417, 430-434 (1998) (citing the cancellations‟ creation of contingent liability, deprivation of
tax benefits, etc. as sufficiently concrete injuries in fact to confer standing).
303
See, e.g., Ryan McManus, Sitting in Congress and Standing in Court: How Presidential Signing Statements Open the Door to Legislator
Lawsuits, 48 B.C. L. REV. 739, 756 n.151 (2007) (citing James I. Alexander, No Place to Stand: The Supreme Court‟s Refusal to Address the
Merits of Congressional Members‟ Line-Item Veto Challenge in Raines v. Byrd, 6 J.L. & POL‟Y 653, 698 (1998) (arguing that the Raines
Court should have recognized diminution of legislative power as an injury sufficient for standing); Anthony Clark Arend & Catherine B.
Lotrionte, Congress Goes to Court: The Past, Present, and Future of Legislator Standing, 25 HARV. & PUB. POL‟Y 209, 213 (2001) (arguing
that, after Raines, separation of powers concerns bar federal legislators from ever having standing to sue for an institutional injury); Staff
Note, Standing in the Way of Separation of Powers: The Consequences of Raines v. Byrd, 112 HARV. L. REV. 1741 (1999) (acknowledging
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changed in application by the lower courts.304 Generally, they will approach the issue perfunctorily
with three distinct questions: (1) was the plaintiff “singled out for specially unfavorable treatment”
that constitutes some concrete personal injury, as opposed to an “institutional injury” equally shared
by other Congressmembers?305 (2) If not, has the plaintiff‟s vote been subjected to an outcome-
determinative nullification?306 (3) If so, the Sixth Circuit in Baird v. Norton added yet another
wrinkle: because Raines stressed that the nullified votes in Coleman would have sufficed to defeat
or enact a statute but for the nullification, it follows that each of the legislators whose votes were
allegedly nullified must actually be a co-plaintiff before the Court like the plaintiffs in Coleman, not
merely represented by a few colleagues.307
The Raines Court‟s failure to articulate a precise definition of “vote nullification” provided
the only significant avenue for development, and it was short-lived.308 The D.C. Circuit initially
suggested in Chenoweth v. Clinton that at least one pre-Raines definition of nullification – the
pocket veto – probably did “survive Raines,”309 but nonetheless recognized that another – violations
of the “constitutionally mandated process of enacting law” such as House origination of revenue-
raising bills – did not.310 In Campbell v. Clinton just eight months later, the D.C. Circuit rang what
may have been Congressmember standing‟s death knell: vote “nullification” was strictly limited to
those rare situations like Coleman where no post hoc “legislative remedy” exists.311 Whereas the
Coleman plaintiffs presumably could not “rescind” Kansas‟ improper ratification of an amendment
to the federal constitution, the Raines Congress “enjoy[ed] ample legislative power” to repeal the
LIVA at its leisure, and the Campbell Congress similarly was free to forbid further unauthorized
military action in Yugoslavia, deny appropriations for that purpose, or even impeach, so Article III
standing was unnecessary and inappropriate.312 Despite a 2-1 split in which the concurrence derided
the majority for effectively endorsing any unconstitutional fait accompli,313 Campbell remains good
law to this day.314
that Raines restricts legislators‟ access to the federal courts, but arguing that this actually will serve to weaken rather than strengthen the
separation of powers); David J. Weiner, The New Law of Legislative Standing, 54 STAN. L. REV. 205 (2001) (arguing that the Raines
decision is harmful to the separation of powers and that it reflects underlying problems with the doctrine of standing)).
304
See, e.g., Schaffer v. Clinton, 240 F.3d 878, 885-886 (10th Cir. 2001) (denying standing to a single Congressman‟s allegation that the
Ethics Reform Act‟s mechanism for determining congressional compensation violated the Twenty-Seventh Amendment); Kucinich v.
Defense Finance and Accounting Service, 183 F.Supp.2d 1005, 1008-1009 (N.D. Ohio 2002) (denying standing to a single Congressman‟s
allegation that the Executive‟s grant of an accounting contract violated a statute); Kucinich v. Bush, 236 F.Supp.2d 1, 6-8 (D.D.C. 2002)
(denying standing to thirty-two Congressmembers‟ allegation that the Executive‟s unilateral withdrawal from the Anti-Ballistic Missile
Treaty required congressional approval).
305
See, e.g., Schaffer, 240 F.3d at 885-886; Kucinich, 183 F.Supp.2d at 1008-1009; Kucinich, 236 F.Supp.2d at 6-8.
306
See, e.g., Schaffer, 240 F.3d at 885-886; Kucinich, 183 F.Supp.2d at 1008-1009; Kucinich, 236 F.Supp.2d at 6-8.
307
266 F.3d 408, 412-413 (6th Cir. 2001) (“[I]f Baird‟s lawsuit had been joined by other members…whose total votes (and non-votes) would
have been sufficient to defeat the necessary legislation, then this group of lawmakers, like the twenty state senators in Coleman, would have
had standing as legislators based on vote nullification”) (emphasis added).
308
309
181 F.3d 112, 116-117 (1999) (citing Kennedy v. Sampson, 511 F.2d 430 (1974)).
310
Id. at 116 (citing Moore v. U.S. House of Representatives, 733 F.2d 946 (1984)).
311
203 F.3d 19, 22-23 (D.C. Cir. 2000).
312
Id.
313
Id. at 32 (Randolph, J., concurring in the judgment) (finding the case moot and agreeing that the plaintiffs lacked standing, but on the
alternative ground that the “legislative action” the plaintiffs defeated never “went „into effect‟” and thus did not satisfy the Raines test, and
disagreeing with the majority‟s “legislative remedy” test: “[t]he majority has, I believe, confused the right to vote in the future with the
nullification of a vote in the past, a distinction Raines clearly made. … To say that your vote was not nullified because you can vote for other
legislation in the future is like saying you did not lose yesterday‟s battle because you can fight again tomorrow. The Supreme Court did not
engage in such illogic.”)
314
See Kucinich v. Bush, 236 F.Supp.2d 1 8-9 (D.D.C. 2002) (denying standing to thirty-two Congressmembers on the Campbell grounds
that a conceded divestment of constitutional power could be remedied through legislative action).
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2. Political Question Doctrine

a. The Doctrine Generally
At least as far back as Chief Justice John Marshall‟s dicta in Marbury v. Madison to the
effect that issues “in their nature political” and unspecified “political powers” vested in the
President‟s discretion are only “accountable to [the] country in [their] political character” and thus
not subject to judicial review,315 the American judiciary has come to develop a “political question
doctrine” whereby it will abstain from deciding questions that are deemed in the realm of the other
two branches‟ political discretion and left up to enforcement by either them or the electorate.316
Originally, the doctrine progressed through two distinct “strands,” namely the “classical” or
“textual” theory that the Constitution‟s separation of powers deprives the courts of authority to
decide political questions clearly assigned to the total discretion of one or both of the elected
branches,317 and the “prudential” theory which is derived not from the Constitution, but rather the
judiciary‟s desire not to undermine its own legitimacy by excessive “embroilment in…th[e]
political thicket” without electoral accountability.318 Lamentably, both types have historically been
applied in such a nebulous and inconsistent fashion as to approach an ad hoc “escape hatch” more
than a clearly delineated “doctrine.”319
In an unsuccessful attempt to glean some general principles from the morass and encourage
more uniformity, the Supreme Court in Baker v. Carr inadvertently melded both theories when it
took the opportunity to collect a huge sample of political question doctrine cases320 and distill from
them a six-factor test whereby there is a nonjusticiable political question if (1) the Constitution
demonstrably commits resolution of the issue at hand to one or more political branches, (2) there are
no “judicially discoverable and manageable standards for resolving” the issue at hand, (3) there is a
need for an “initial policy determination” typically left to politicians, (4) deciding would “express[]
lack of respect due coordinate branches,” (5) there is an “unusual need for unquestioning adherence
to a political decision already made,” “or” (6) the presence of “multifarious pronouncements” on
the same issue raises the “potentiality of embarrassment.”321 The Court made clear that any one of
these factors could be independently dispositive; a case would be nonjusticiable if any one of the six
factors was “inextricable” from it, i.e. not merely a tangential consideration but “[p]rominent on the
surface of [the] case.”322 However, in keeping with the Court‟s criticism of using “the „political
question‟ label to obscure the need for case-by-case…discriminating inquiry into the precise facts
315
Marbury v. Madison, 5 U.S. (1 Cranch) 137, 165-166 (1803).
316
LARRY W. YACKLE, FEDERAL COURTS 284 (2d ed. 2003).
317
Barkow, supra note 319, at 246-253; see also Herbert Wechsler, Toward Neutral Principles of Constitutional Law, 73 HARV. L. REV. 1,
7-9 (1959).
318
See Barkow, supra note 319, at 253-263 (citing, inter alia, Colgrove v. Green, 328 U.S. 549, 552-56 (1946)); see also Alexander Bickel,
The Supreme Court, 1960 Term – Foreword: The Passive Virtues, 75 HARV. L. REV. 40, 75 (1961).
319
See Baker v. Carr, 369 U.S. 186, 210 (1962) (lamenting that the political question doctrine‟s “attributes..., in various settings, diverge,
combine, appear, and disappear in seeming disorderliness”); see also generally Kimberly Breedon, Remedial Problems at the Intersection of
the Political Question Doctrine, the Standing Doctrine, and the Doctrine of Equitable Discretion, 34 OHIO N.U. L. REV. 523 (2008); Rachel
Barkow, More Supreme than Court? The Rise and Fall of the Political Question Doctrine and the Rise of Judicial Supremacy, 102 COLUM.
L. REV. 237 (2002); Wayne McCormack, The Political Question Doctrine – Jurisprudentially, 70 U. DET. MERCY L. REV. 793 (1993); J.
Peter Mulhern, In Defense of the Political Question Doctrine, 137 U. PA. L. REV. 97 (1988); Linda Champlin & Alan Schwarz, Political
Question Doctrine and Allocation of the Foreign Affairs Power, 13 HOFSTRA L. REV. 215 (1985); Louis Henkin, Is There a “Political
Question” Doctrine?, 85 YALE L.J. 597 (1976).
320
369 U.S. 186, 208-237 (1962).
321
Baker, 369 U.S. at 217.
322
Id.
32
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and posture of the particular case,”323 it declined to define the meaning or scope of the six factors
and thus failed to establish a coherent framework for future cases.324
Although Baker‟s first factor is a fairly straightforward direction to the text, structure, and
history of the Constitution325 and the third factor states only the pre-existing truism that the
judiciary should apply laws within the bounds of reasonable interpretation without making law from
whole cloth,326 the other factors are especially vague. Scholars typically read the second factor to
refer to standards “discoverable” within the text, structure, and history of the Constitution as well as
other laws,327 and the final three factors are “often treated as a unit” in reference to an electoral
branch having already made a policy determination within the bounds of its Constitutional authority
before the issue reaches a court,328 but lower courts have offered little illumination on these points
and instead tend to perfunctorily cite Baker in a rush to escape the merits.329 Among the categories
most unequivocally placed in the political question category since Baker, albeit by citing varying
combinations of Baker factors with limited elaboration on them, are the undeclared nature of a war
or the manner in which the Executive wages it,330 declarations of national emergency with respect
to international crises,331 interventions in Latin America,332 and other matters permeated with
considerations of foreign policy and national security.333 However, this tendency of the courts to
323
Id. at 211-212, 217 (emphasis added).
324
See Breeden, supra note 319, at 524 (citing Mulhern, supra note 319, at 106-108).
325
Baker, 369 U.S. at 217.
326
See Henkin, supra note 319, at 598.
327
See, e.g., Richard H. Fallon, Jr., Judicially Manageable Standards and Constitutional Meaning, 119 HARV. L. REV. 1274, 1281 (2006).
328
See Breeden, supra note 319, at 539-540. These factors, and especially the sixth, are also typically in reference to treaty issues or other
foreign affairs matters. See id.
329
See Mulhern, supra note 319, at 107 (collecting cases, including Ramp v. Reagan, 758 F.2d 653 (6th Cir. 1985) (holding, with a bare
citation to Baker absent analysis, that a petition for mandamus to compel the President to file suit in the International Court of Justice
presented a political question); Lowry v. Reagan, 676 F. Supp. 333, 339-40 (D.D.C. 1987) (finding nonjusticiable any cases concerning
foreign relations - such as this challenge to Tanker War actions inconsistent with the War Powers Resolution - because the government must
speak with a single voice, but failing to explain why the court may not interpret the constitutional limits of that voice); Greenham Women
Against Cruise Missiles v. Reagan, 755 F.2d 34, 37 (2d Cir. 1985) (upholding lower court‟s dismissal under Baker of a suit to prevent
deployment of cruise missiles), aff‟g 591 F. Supp. 1332 (S.D.N.Y. 1984); Republic of Panama v. Citizens and S. Int‟l Bank, 682 F. Supp.
1544, 1545 (S.D. Fla. 1988) (concluding that the political question doctrine precludes a suit by a foreign government that the executive
branch has refused to recognize)).
330
See, e.g., Orlando v. Laird, 443 F.2d 1039, 1043-44 (2d Cir. 1971) (stressing that whether declaring or authorizing and appropriating for a
war would be “contrary to the interests of the U.S.” is “determined by highly complex considerations of diplomacy, foreign policy and
military strategy inappropriate to judicial inquiry,” so the Court dared not dare not “destroy the flexibility of action which the executive and
legislative branches must have in dealing with other sovereigns.”), cert. denied, 404 U.S. 869 (1971); Holtzman v. Schlesinger, 484 F.2d
1307, 1309-12 (2d Cir. 1973), cert. denied, 416 U.S. 936 (1974); Atlee v. Laird, 347 F. Supp. 689 (E.D. Pa. 1972), aff‟d mem. sub nom. Atlee
v. Richardson, 411 U.S. 911 (1973); Mitchell v. Laird, 488 F.2d 611 (D.C. Cir. 1973); Ange v. Bush, 752 F.Supp. 509, 511-515 (D.D.C.
1990); but see Dellums v. Bush, 752 F.Supp. 1141, 1144-1146 (D.D.C. 1990) (deciding that the Court was perfectly able to “make the factual
and legal determination of whether this nation‟s military actions constitute war for purposes of the Constitutional War Clause,” and that the
Court‟s mere need to “inject itself into foreign affairs” did not automatically preclude justiciability, but nonetheless dismissing the case on
ripeness grounds).
331
See, e.g., Beacon Products Corp. v. Reagan, 633 F. Supp. 1191 (D. Mass. 1986), aff‟d, 814 F.2d 1 (1st Cir. 1987); U.S. v. Yoshida Int‟l.,
Inc., 526 F.2d 560, 579 (C.C.P.A. 1975).
332
See Mulhern, supra note 319, at 107 n.27 (citing Ramirez de Arellano v. Weinberger, 568 F. Supp. 1236, 1238-40 (D.D.C. 1983) (holding
nonjusticiable as a political question a private citizen‟s challenge to the U.S. Government‟s use of private land in Honduras for military
purposes); Sanchez-Espinoza v. Reagan, 568 F. Supp. 596, 600 (D.D.C. 1983) (holding that claims arising out of U.S. government actions in
Nicaragua presented nonjusticiable political questions), aff‟d, 770 F.2d 202 (D.C. Cir. 1985); Crockett v. Reagan, 558 F. Supp. 893 (D.D.C.
1982) (holding that a Congressmembers‟ challenge that the U.S.‟ presence in and military assistance to El Salvador was illegal under the War
Powers Resolution and the War Powers Clause of the Constitution was a nonjusticiable political question), aff‟d, 720 F.2d 1355 (D.C. Cir.
1983), cert. denied, 467 U.S. 1251 (1984)); see also Schneider v. Kissinger, 412 F.3d 190 (2005) (holding that torture victims‟ suit
challenging U.S. support of the Pinochet regime posed a nonjusticiable political question regarding a foreign policy clearly committed to the
two elected branches); Gonzalez-Vera v. Kissinger, 449 F.3d 1260 (D.C. Cir. 2006) (same).
333
Barkow, supra note 319, at 267 n.158 (citing Champlin & Schwarz, supra note 319, at 217; THOMAS M. FRANCK, POLITICAL
QUESTIONS/JUDICIAL ANSWERS 19-20 (1992)); see also supra note 329 and accompanying text; Americans United for Separation of Church
and State v. Reagan, 786 F.2d 194, 202 (3d Cir. 1986) (finding nonjusticiable a challenge to diplomatic relations with the Vatican, per
Baker‟s first factor).
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defer to elected branches‟ foreign policy judgments and the need for “one voice” must be tempered
by Baker‟s explicit admonition that “it is error to suppose that every case or controversy which
touches foreign relations lies beyond judicial cognizance,” and courts should instead engage in
“discriminating analysis” of the “particular question posed” in terms of its history, its nature, and
the possible consequences of its judicial disposition.334
b. Political Question Doctrine and the Black Budget
Although the Richardson case was disposed of on standing grounds, the political question
doctrine was consistently a tangential consideration.335 The District Court initially held that even
assuming standing arguendo, Richardson‟s claim was nonetheless barred by the political question
doctrine in the alternative.336 The Third Circuit declined to address the issue, finding the political
question doctrine naturally so “intertwined with the merits” that it had to be developed by the three-
judge District Court panel upon remand.337 When the Supreme Court ultimately barred
Richardson‟s claim on standing grounds, it remarked tangentially that Richardson also “fail[ed] to
clear the threshold hurdle of Baker” and elaborated in a footnote that although uncited evidence
from the drafting and ratification history of the Account Clause was “inconclusive,” it nonetheless
“suggest[ed]” that the Clause was intended to grant Congress “plenary power to exact any reporting
and accounting…in the public interest” and thus was to be enforced by Congress‟ “power of the
purse” or perhaps such statutory grants of standing that Congress might make (of which there were
none), not any random taxpayer.338 Aside from that footnote, the standing decision‟s
aforementioned emphasis of the plaintiff‟s electoral remedies, “[s]low, cumbersome, and
unresponsive” as they concededly may be, was also subtly teeming with political question doctrine
connotations.339 However, the political question doctrine was not raised in the certiorari briefs and
Solicitor General Robert Bork explicitly conceded on oral argument that it was so commingled with
the merits that a decision in favor of standing would best leave resolution of the political question
doctrine to the District Court, so any suggestions in Richardson about the doctrine should be read as
mere obiter dicta.340
In Halperin, on the other hand, the D.C. Circuit went beyond dictum to directly apply the
political question doctrine to the case as an “equal ground of decision” due to its expressed concern
334
See Baker, 369 U.S. at 211-212.
335
336
Richardson, 418 U.S. at 169.
337
Richardson, 465 F.2d at 856.
338
Richardson, 418 U.S. at 178 n.11.
339
See supra note 261 and accompanying text.
340
See Richardson, 418 U.S. at 205-207 (Stewart, J. and Marshall, J., dissenting):
“The Court also seems to say that this case is not justiciable because it involves a political question. ... This is an issue that is not
before us. The „Question Presented‟ in the Government‟s petition for certiorari was the respondent‟s „standing ...‟ ... [T]he
following colloquy occurred between the Court and the Solicitor General:
„MR. BORK: ... I think the Court of Appeals was correct that the political question issue could be resolved much more
effectively if we were in the full merits of the case than we can at this stage. I think standing is all that really can be
effectively discussed in the posture of the case now.
Q: . . . (I)f we disagree with you on standing, the Government agrees then that the case should go back to the District Court?
„MR. BORK: I think that is correct.‟”
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that its standing analysis was questionable in light of Richardson‟s close 5-4 ruling.341 In a fairly
perplexing example of deciding the merits only to explain why the political question doctrine
forecloses a decision on the merits,342 the Court reviewed some parts of the aforementioned drafting
history,343 ratification history,344 and post-Constitution historical practice345 of the Account
Clause,346 which “persuade[d the Court]…that the Framers…intended Congress and the President to
have discretion to maintain the secrecy of intelligence expenditures” and any suggestions to the
contrary represented nothing more than a “dissenting minority” exemplified by Mason and Henry,
so the CIAA merely “continued a longstanding practice.”347 Although this dictum was a hair‟s
breadth from declaring that the CIAA did not violate the Account Clause, the Court, citing Baker,
instead held that the Clause created no “judicially enforceable standard” and instead “committed to
a coordinate branch” discretion to decide “whether, when, and in what detail intelligence
expenditures should be disclosed to the public,” so the propriety of an exercise of that discretion
was simply a “nonjusticiable political question.”348 In support of this conclusion, the Court cited the
Richardson majority‟s obiter dictum suggesting the same.349
III. ANALYSIS
Upon even cursory review of the above legal issues raised by the black budget, it becomes
clear that it remains shielded by an impervious citadel of habitual historical practice, paramount
national security considerations, and binding judicial precedent that even the most creative of legal
theorists cannot possibly breach. Part III(A) will argue that the CIA and DOD black budgets comply
with the Appropriations Clause,350 though Part III(B) will argue that the CIA black budget
technically violates both the letter and intent of the Account Clause, and the DOD black budget
probably does.351 An analysis in Part III(C) will conclude that even assuming arguendo an Account
Clause violation in either case, any attempt to seek a judicial remedy for it would nonetheless be
extremely unlikely to succeed.352
341
Halperin, 629 F.2d at 154 (“Especially in light of the narrow 5-4 margin of decision in Richardson, we do not overlook the possibility that
the Supreme Court could narrow the Richardson holding…. With this possibility in mind, and considering that judicial economy is best
served by our resolving all relevant issues at this stage, we proceed to consider the merits of plaintiff‟s constitutional claim as an equal
alternative ground of our decision.”).
342
For a similar example of an extensive adjudication of the merits commingled with a finding of a political question, see, e.g., Orlando v.
Laird, 443 F.2d 1039 (2d Cir. 1971), cert. denied, 404 U.S. 869 (1971), where the Court first acknowledged that whether Congress performs
its “duty of mutual participation in the prosecution of war” was “not foreclosed by the political question doctrine” and decided that Congress
performed that duty with an authorizing resolution, appropriations, and conscription, id. at 1042-1043, but then turned around to invoke the
political question doctrine and decline to address whether those congressional actions were a sufficient substitute for a declaration of war. Id.
at 1043-1044.
343
Compare supra notes 215-218 and accompanying text (laying out evidence from a comprehensive search of Philadelphia Convention
records) with Halperin, 629 F.2d at 154-155 (omitting some key passages and taking others out of context).
344
See supra notes 221-242 and accompanying text (laying out evidence from a comprehensive search of ratifying convention records) with
Halperin, 629 F.2d at 155-156 (omitting some key passages and taking others out of context).
345
346
Halperin, 629 F.2d at 154-160.
347
Id. at 160.
348
Id. at 161.
349
Id. (citing Richardson, 418 U.S. at 178 n.11).
350
351
352
See infra notes Error! Bookmark not defined.-514 and accompanying text.
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A. BLACK BUDGET APPROPRIATIONS DO NOT VIOLATE THE APPROPRIATIONS CLAUSE

On its face, the Appropriations Clause sheds no light on what constitutes an “appropriation”
except that (1) an appropriation authorizes executive disbursements from the Treasury and (2) it
must be “made by Law,”353 which the Framers originally took to mean bicameral passage and
presentment like for any other statute.354 Because the British history of the appropriation power and
the Framers‟ original understanding of it both considered the power an “absolute control” over the
quantity and conditions of expenditure as an essential legislative check on executive power,355 the
judiciary was correct to recognize that the Appropriations Clause entails Congress‟ plenary power
to define what the term “appropriation” actually means, so long as it stays within the reasonable
bounds of interpretation of the two textual criteria.356 Because Congress has already exercised this
plenary power to statutorily define the “appropriation” as not merely a statute specifically granting
funds under the appropriations label, but rather any explicit statutory delegation of “authority
making amounts available for obligation or expenditure,” the sole question in assessing the black
budget‟s compliance with the Appropriations Clause is whether statutes have explicitly delegated to
the Executive the authority to disburse from the Treasury under specified conditions.357
In the case of the CIA black budget, despite several years of initial illegality conceded by
CIA General Counsel,358 there can be no question that the eventual CIAA constitutes an explicit
statutory authorization for the OMB to disburse funds from the Treasury to the CIA for specified
functions the CIA is authorized to perform.359 Despite some Congressmembers‟ rhetorical
hyperbole that this seemingly broad authority was improper “abdication” of the appropriation
power, it did not approach that term in the legal sense defined by nondelegation doctrine:360 (1) the
consistent historical practice of appropriating by categories,361 the sheer impracticability of
accounting for every minute penny in legislation,362 and the Clause text‟s very contemplation of
granting disbursement authority363 demonstrate that the appropriations power is a delegable one; (2)
the CIAA disbursement‟s incorporation by reference of the CIA‟s authorized functions sets forth an
“intelligible principle” to guide disbursements by both the OMB and the DCIA,364 (3) there is no
evidence that the DCIA is presently expending outside those authorized functions (even if it has in
the past),365 and (4) the Executive‟s disbursements under the CIAA do not themselves violate any
other constitutional provision (even if concealment thereof may violate the Account Clause),366 so
353
See supra note 185and accompanying text (introducing the Appropriations Clause).
354
See supra notes 194-196 and accompanying text (discussing a revision adding that phrase).
355
See supra notes 190-194 and accompanying text (discussing the pre-constitutional history of the “power of the purse” in legislative-
executive relations); supra notes 194-205 and accompanying text (discussing the Framers‟ understanding of its broad meaning).
356
See supra notes 205-206 and accompanying text (discussing courts‟ interpretation of the Appropriations Clause).
357
See supra notes 207-208 and accompanying text (discussing Congress‟ statutory definition of appropriations).
358
See supra notes 40-41, 60-62 and accompanying text (discussing illegal CIA budgetary practices prior to the CIAA).
359
See supra notes 59, 68-73 and accompanying text (introducing disbursement provisions of the CIAA).
360
See supra note 64 and accompanying text (comparing congressional comments to actual nondelegation doctrine).
361
See supra note 209 and accompanying text (discussing the ability of Congress to decide an appropriation‟s level of specificity).
362
See supra note 209 and accompanying text (discussing the ability of Congress to decide an appropriation‟s level of specificity).
363
See supra note 185and accompanying text (introducing the Appropriations Clause).
364
See supra notes 69-70 and accompanying text (discussing the CIA‟s authorized functions and their relation to OMB disbursement).
365
See supra note 64 and accompanying text (comparing congressional comments to actual nondelegation doctrine); but see supra notes 71,
82-86 and accompanying text (discussing the Church Committee findings on past abuses of CIAA funding delegation).
366
See supra note 64 and accompanying text (comparing congressional comments to actual nondelegation doctrine); but see infra notes 392-
447 and accompanying text (analyzing the meaning of the Account Clause and applying it to the black budget).
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the CIAA would probably not run afoul of the nondelegation doctrine that has not invalidated a
single statute in over 74 years.367
Moreover, even supposing, as the Richardson majority suggested, that the CIAA itself does
not constitute an “appropriation” exercising the Taxing and Spending Clause so much as a
regulation of how other appropriations are to be disbursed and accounted for,368 the Appropriations
Clause is alternatively satisfied by Congress‟ passing other agencies‟ appropriations from which
CIA funds are withdrawn per CIAA authority, since Congress passed those appropriations bills with
knowledge of which parts would ultimately go to the CIA.369 One might make the argument on
principle that such bills, though technically appropriations in form, are tainted in substance by the
blatant concealment of the CIAA‟s underlying mechanics from the Congress that passed it,370 the
concealment of its application from a majority of the members of subsequent Congresses,371 and
practical obstruction of the present Congress‟ full understanding of its application,372 but the
constitutional procedure for enacting a valid statute only requires that the House and Senate – as
unitary entities – pass it and present it to the President for signature.373 While the State of the Union
Clause suggests some degree of obligation of the Executive to provide general information to
Congress, that again only refers to Congress as an entity rather than any informational rights of
individual members,374 and although the Account Clause imposes a duty on the entire government
to publish expenditure information, its breach does not necessarily call into question the validity of
an appropriation act passed and perpetuated in the absence of such information.375 Instead, the
provision controlling intra-congressional information must be the Rulemaking Clause, which
affords each house of Congress broad discretion to “determine the Rules of its Proceedings” leading
up to enactment of a statute;376 exercising this discretion, the Congress has chosen to establish
procedures for members‟ access to classified information, delineate certain authorized committees
with more access, and afford such committees discretion to hold executive session and limit the
level of detail in classified annexes made available to other members.377 Though Harrington was
strictly a standing case, the D.C. Circuit rightly emphasized in dicta therein that the congressional
plaintiff had chosen the wrong target: his deprivation of national security information was a product
not of executive usurpation, but rather deliberate choice by the majority voice of Congress itself,
which was and still is free to create new statutes, procedural rules, or subpoenas entitling ordinary
367
See supra note 64 and accompanying text (comparing congressional comments to actual nondelegation doctrine).
368
See supra notes 257 and accompanying text (discussing the Richardson majority‟s application of the first Flast prong).
369
See supra notes 101-113 and accompanyingtext (discussing the history of CIA budget congressional oversight).
370
See supra notes 63-67 and accompanying text (discussing the legislative history of the CIAA).
371
See supra notes 101-109 and accompanying text (discussing the history of CIA budget congressional oversight between the Church
Committee and 1991).
372
See supra notes 110-113 and accompanying text (discussing the history of CIA budget congressional oversight since 1991).
373
U.S. CONST. art. I, § 7.
374
See supra note 188 and accompanying text (introducing the State of the Union Clause).
375
See infra notes 392-447 and accompanying text (analyzing the meaning of the Account Clause and applying it to the black budget; infra
notes 459-460 (analyzing whether the Account Clause imposes a specific limitation on the validity of appropriations for purposes of Flast's
second prong).
376
377
See supra notes 101-113 and accompanying text (discussing the history of CIA budget oversight between the Church Committee and the
present).
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Congressmembers to the entire Pandora‟s box of national security information.378 It has simply
chosen not to.
At first, one might argue that the DOD black budget is much less likely to comport with the
Appropriations Clause because it lacks the CIA black budget‟s explicit statutory basis.379 Instead,
the entire process for designating the purpose of a multi-billion-dollar black budget line item as
classified,380 elevating its status to a compartmentalized SAP,381 and reviewing the soundness of its
continued classification on appeal382 rests solely on the President‟s bare assertion of an inherent
constitutional authority inferred from the Commander in Chief Clause, Take Care Clause, and
Executive Power Clause of the Constitution, with an asserted discretion that stretches the
boundaries of the imagination.383
How can such a unilateral decision by the Executive become the starting point for the
congressional grant of authority to the Executive that defines an appropriation? The answer is the
same as above: deliberate congressional acquiescence, which comes to “enable, if not invite,
measures on independent presidential responsibility” entitled to moderate deference in Justice
Jackson‟s “zone of twilight.”384 Despite a storm of controversy in the mid-1980s about apparent
billions of dollars of waste in the DOD black budget being hidden from Congress and the public,385
Congress‟ lukewarm reaction went only so far as to require the DOD to “report” to a few select
committees a few vague SAP aspects that technically could be crammed onto a single page,386 and
afford the DOD the ultimate trump card with which to ignore these requirements entirely so long as
twelve senior Congressmembers are kept in the loop orally, off the record.387 Even when the House
Appropriations Committee in 1999 explicitly found rampant abuse of the leeway given by the 1987
SAP reform, the Congress took no action beyond a stern warning.388 Congressmembers kept out of
the loop, such as in the Rohrabacher episode, might complain as a policy matter that they are unable
to effectively carry out their constitutional duties because they lack information essential to
deciding whether to amend or vote against defense appropriations brought to the floor,389 but they
would fall on the same deaf ears as Harrington‟s complaints did, for the same reasons: Congress
was and is free to adopt internal rules per the Rulemaking Clause to widen these Congressmembers‟
access to information, or even to impose more rigorous statutory reporting requirements on the
Executive, but Congress‟ majority voice has decided not to for the time being.390 Instead, it
378
See supra notes 287-289 and accompanying text (discussing the Harrington Court‟s emphasis that the plaintiff‟s deprivation of
information was a product of congressional choice, not executive usurpation).
379
See supra notes 114-122 and accompanying text (discussing the absence of an express statutory basis for classification of the DOD black
budget).
380
See supra notes 130-139 and accompanying text (discussing the three-tiered classification process).
381
See supra notes 140-148 and accompanying text (discussing the SAP compartmentation process).
382
See supra notes 149-156 and accompanying text (discussing the classification appeal process); supra notes 157-161 (discussing the total
absence of judicial review in the classification appeal process).
383
See supra notes 122-129 and accompanying text (discussing the basis of classification in the President‟s inherent constitutional authority).
384
See supra note 128 and accompanying text (discussing Jackson‟s polestar Steel Seizure concurrence).
385
See supra notes 163-165 and accompanying text (discussing the lead-up to the 1987 oversight reform).
386
See supra notes 164-170 and accompanying text (discussing the SAP reporting statute‟s ordinary provisions).
387
See supra notes 171-173 and accompanying text (discussing the “waiver” procedure to circumvent the SAP reporting statute‟s ordinary
provisions in extraordinary circumstances).
388
See supra note 183 and accompanying text (discussing the 1999 House Report).
389
See supra notes 174-183 and accompanying text (discussing frustration of non-defense-committee Congressmembers‟ attempts to
adequately inform themselves about classified defense appropriations on which they vote).
390
See supra notes 110-113 and accompanying text (discussing apparent inadequacy of classified annex information).
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continues to pass defense appropriations bills that delegate to the DOD wide discretion to disburse
from the Treasury in pursuance of whatever broad, categorical purposes are specified in the bills‟
classified annexes, which satisfies the basic definition of “appropriation” described above.391
Absent any Appropriations Clause right of ordinary Congressmembers to be apprised of the projects
for which they appropriate, they must look elsewhere in the Constitution.
B. BLACK BUDGET APPROPRIATIONS VIOLATE THE ACCOUNT CLAUSE
Whereas the Appropriations Clause represents a power of the Congress that it has chosen to
broadly delegate more than some might prefer as a policy matter, the Account Clause represents a
right of the American public that neither the Congress nor the Executive may choose to deny. 392 To
the extent that the political question doctrine analyses in Richardson and Halperin suggested in
dicta that the Account Clause was strictly a right of Congress vis-à-vis the Executive rather than a
public right, both cases relied on (or perhaps deliberately cherry-picked) incomplete evidence that
led to an errant interpretation.393
1. The Account Clause’s Plain Text Reveals a Public Right
To start, the Account Clause‟s public right is already self-evident from the plain text of the
Constitution.394 The Account Clause itself clearly states that all expenditures of public money must
be “published”; in what Henry Lee called the “common acceptation of language”395 as laid out in
Webster‟s Dictionary, “publish” connotes “make generally known,” “make public announcement
of,” “disseminate to the public,” etc.,396 as one would expect given that the etymology of both
“publish” and “public” can be traced to the same Latin root word, publicus.397 The phrase “from
time to time” is also unambiguous, defined in Webster‟s as simply “once in a while” or
“occasionally,” implying that the event in question must happen eventually and cannot be
postponed indefinitely.398 Lee‟s comments made clear that this implication was every bit as self-
evident in the 18th-century “common acceptation of language,” when “from time to time” meant
“short, convenient periods” approximating “one year, or a shorter term,” so clearly in fact that
anyone “who would neglect this provision would disobey the most pointed directions.”399
Unfortunately, Lee‟s confident prediction missed the mark: even the D.C. Circuit and a slim
majority of the U.S. Supreme Court were apt to ignore “the most pointed directions” in Richardson
and Halperin, by failing to even expound upon these basic definitional and etymological
underpinnings.400
2. Constitutional Context Reveals a Public Right
Text aside, context is key: contrast the Account Clause wording with the Journal Clause,
which also refers to publication “from time to time” but adds the express exception for “such Parts
391
See supra notes 353-357 and accompanying text (discussing the prevailing definition of “appropriation” as used in the Approrpiations
Clause).
392
See infra notes notes 392-435 and accompanying text (analyzing the meaning of the Account Clause).
393
See supra notes 335-349 and accompanying text (discussing the Richardson and Halperin Courts‟ political question doctrine analyses,
which naturally suggested much about the merits).
394
See supra notes 184-188 and accompanying text (pointing out relevant portions of the constitutional text).
395
See supra notes 239-241 and accompanying text (quoting Henry Lee).
396
Publish, MERRIAM-WEBSTER DICTIONARY (2009), available at http://www.merriam-webster.com/dictionary/Publish (emphasis added).
397
Publish, ONLINE ETYMOLOGY DICTIONARY (2001), available at http://www.etymonline.com/index.php?term=publish.
398
Time, MERRIAM-WEBSTER DICTIONARY (2009), available at http://www.merriam-webster.com/dictionary/time.
399
See supra notes 239-241 and accompanying text (quoting Henry Lee).
400
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as may in [Congress‟] Judgment require Secrecy.”401 This demonstrates that the Framers were more
than able and willing to make an express secrecy exception to publications required “from time to
time,” so such an exception‟s conspicuous absence from the Account Clause cripples any argument
that it is implied from the phrase “from time to time” standing alone.402 Contrast the Account
Clause‟s text also with the State of the Union Clause – the latter states a disclosure duty “to the
Congress,” whereas the former simply states what “shall be published.”403 This demonstrates that
the Framers were more than able and willing to express when a disclosure duty runs from the
Executive to Congress, so this direction‟s conspicuous absence from the Account Clause, combined
with the plain meaning of “publish,” clearly suggests a duty owed by the entire federal government
to the public itself.404 Remarkably, these stark differences from related constitutional provisions
were totally ignored in the political question doctrine analyses in Richardson and Halperin, which
probably contributed to their fundamental misunderstanding of the Account Clause.405
3. Drafting History Reveals an Intended Public Right
Text and context aside, the drafting history of the Account Clause reveals no clear evidence
that a secrecy exception was originally intended by the Framers.406 The first and only objection to
Mason‟s original proposal was not against its suggestion of wide publication or its implications for
secrecy in foreign relations or military matters, but rather the “impossib[ility]” or
“impracticab[ility]” of actually accounting for “every minute schilling” on an overly rigid annual
schedule.407 This objection was purely rooted in a need for administrative convenience, and the
Framers‟ underlying concern that excessively rushed public disclosures would lack “satisfactory”
detail,408 or simply lead to them falling out of practice altogether as they had under the Articles‟
onerous six-month requirement.409 A sole exception might be Wilson‟s brief comment that “[m]any
operations of finance can not be properly published at certain times,” but it simply is not clear from
Madison‟s notes whether this comment was alluding to the occasional need for secrecy or the mere
concerns for administrative convenience and thoroughness permeating the context.410 In any event,
the bulk of the opposition that led up to the “from time to time” revision clearly was not concerned
that annual publication would lead to too much disclosure, but rather that it would lead to not
enough disclosure.411
4. Ratification Debates Reveal an Intended Public Right
The state ratifications make even more clear that the Account Clause was a public right,
with repeated assurances that the Clause “could meet with no opposition” precisely because “the
People who give their Money ought to know in what manner it is expended”412 and thus have a right
401
See supra note 187 and accompanying text (introducing the Journal Clause).
402
See id.
403
404
See id.
405
406
See infra notes 407-411 and accompanying text (analyzing the drafting history of the Account Clause).
407
See supra notes 216-217 and accompanying text (quoting intial objections to the Mason proposal).
408
See supra note 217 and accompanying text (quoting Rufus King‟s comment that rushed publications would be limited to “such general
statements as would afford no satisfactory information”) (emphasis added).
409
See supra note 219 and accompanying text (quoting Madison‟s concern about rushed publication‟s detrimental effect on transparency).
410
See supra note 218 and accompanying text (quoting Wilson‟s cryptic remark).
411
See supra notes 216-219 and accompanying text (quoting intial objections to the Mason proposal).
412
See supra note 222 and accompanying text (quoting James McHenry) (emphasis added).
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to “public inspection” of government expenditures.413 Mason, the Clause‟s very creator, made clear
the Clause‟s original intent that “[t]he people…had a right to know the expenditures of their money”
and he “did not conceive that [they] ought ever to be concealed” for any reason.414
With respect to the “from time to time” revision, throughout the entirety of the ratification
debate record there are only two brief and inconclusive suggestions that secrecy may have been a
partial justification for it. First, there was an early comment by Madison mentioning that the new
Constitution would require “occasional” publication of expenditures and of journals of
congressional proceedings, save for “[t]hat part which authorizes the government to withhold from
the public knowledge what in their judgment may require secrecy.”415 The Halperin Court largely
relied on this passage to infer a secrecy exception in the “from time to time” revision, but this
interpretation only made sense when taking the passage out of its proper context, sandwiched in a
long speech arguing the need for some general secrecy in treaty negotiations and related
congressional proceedings, in response to Anti-Federalists‟ vehement opposition to the Journal
Clause‟s explicit secrecy exception.416 In light of this context, it becomes apparent that Madison‟s
use of the phrase “[t]hat part” was in reference not to the “from time to time” phrase that the
Journal Clause and Account Clause both share, but rather the far more controversial explicit secrecy
exception present in only the Journal Clause.417 This interpretation is bolstered by the fact that the
wording Madison used, “in their judgment may require secrecy,” is lifted nearly verbatim from the
wording of the Journal Clause: “may in their Judgment require Secrecy.”418
The second instance Halperin interpreted as implying a secrecy exception in the “from time
to time” revision was Mason‟s passing reference to the fact that unspecified individuals had urged
in favor of “this ambiguous expression” that secrecy would be needed for some “matters relative to
military operations and foreign negotiations.”419 Here, too, Halperin misinterpreted a short snippet
by ignoring context and conflating the Journal Clause with the Account Clause. Mason did not
necessarily refer specifically to insertion of “from time to time” into the Account Clause in
particular; instead, he only referred to “this ambiguous expression” generally, invoking the context
of an ongoing and far more salient and vitriolic debate over use of the same “ambiguous
expression” in the Journal Clause,420 which was very frequently justified by the need for secrecy in
“matters relative to military operations and foreign negotiations.”421 Not only is it facially unclear
whether Mason referred to a secrecy exception in the Account Clause or merely the “ambiguous
expression” that the Journal Clause and Account Clause happen to share, but the latter interpretation
is bolstered by Mason‟s subsequent comment explicitly distinguishing such military and foreign
relations “matters” from expenditures of public funds.422
Madison‟s reaction is even more instructive: if Mason were arguing against a supposed
secrecy exception implied by the “from time to time” revision, then presumably Madison would
413
See supra note 225 and accompanying text (quoting William Livingston) (emphasis added).
414
See supra note 234 and accompanying text (quoting George Mason) (emphasis added).
415
See supra note 237 and accompanying text (quoting James Madison) (emphasis added).
416
See id.
417
See id. (emphasis added).
418
Compare id. with supra note 187 and accompanying text (introducing the Journal Clause).
419
See supra note 233 and accompanying text (quoting George Mason).
420
See supra note 233 and accompanying text (quoting George Mason).
421
See supra note 237 and accompanying text (quoting James Madison).
422
See supra note 234 and accompanying text (quoting George Mason) (emphasis added).
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have responded on that point.423 However, Madison made no attempt whatsoever to justify the
revision on secrecy grounds, and instead reiterated his concern from Philadelphia that a fixed
publication schedule would only result in rushed publications that “would not be so full and
connected as would be necessary for a thorough comprehension of them, and detection of any
errors,” as the “inconveniences which had been experienced from the confederation[‟s]” onerous
six-month schedule had amply demonstrated, whereas allowing some flexibility on frequency
would allow for a level of detail more “full and satisfactory to the public.”424 Again, as in
Philadelphia, Madison did not express worry that Mason‟s original version would expose too much
information, as the Halperin Court supposed; rather, Madison made clear that Mason‟s version
would simply be an administrative nightmare with the result of not enough information reaching
public inspection.425 Halperin quite simply had it backwards.426
5. Ratification Debates Reveal an Intended Duty of Congress, not to Congress
Aside from the myriad above references to the public right to expenditure accounting,
perhaps even more damning to the Richardson/Halperin interpretation of a congressional check on
the Executive are repeated indications in the drafting and ratification history that the Framers
contemplated not a duty of the Executive, but a duty of Congress, which by implication must be to
the public. In Philadelphia, for example, King clearly stated that “Cong[ress] might indeed make a
monthly publication,” not the Executive,427 and Madison himself proposed the “from time to time”
revision to afford sufficient “discretion of the Legislature” as to frequency of publication, not the
Executive.428 At the ratification debates, Bowdoin referred to the Account Clause as one of the
“essential” “great checks” not merely on the Executive, but on the potential for corruption of the
federal government as a whole.429 Similarly, Livingston replied to arguments that Congress, not the
Executive, would be corrupt, by reminding that “[a]re not Congress to publish…an account of their
receipts and expenditures?”430 Livingston reiterated days later, again in response to fears of
congressional corruption, that “Congress are to publish” that statement and Congress would thereby
be held accountable to the “public inspection” to root out their corruption,431 and he repeated even
later that Congress would “gratify their constituents” with full accounting.432
In light of these and other telling passages, the Richardson and Halperin decisions, to the
extent that they suggested anything about the merits, are truly perplexing; because the Account
Clause clearly imposed a duty on Congress to publish, it would be an absurd perversion of logic to
rely on Congress‟ plenary power to enforce its own duty against the Executive, yet that is precisely
what Richardson and Halperin apparently expect Congress to do.433 To place the means of a duty‟s
enforcement in the hands of a branch owing the same duty is to effectively relegate the duty to
nothing more than an informal statement of “policy” to guide the whims of the electorate. Because
423
See supra notes 238, 242 and accompanying text (quoting Madison‟s response to criticisms of the revision‟s ambiguity).
424
See id. (emphasis added).
425
See id.
426
Compare id. with supra notes 342-347 (citing Halperin).
427
See supra note 217 and accompanying text (quoting Rufus King) (emphasis added).
428
See supra note 219 and accompanying text (quoting James Madison) (emphasis added).
429
See supra note 223 and accompanying text (quoting James Bowdoin).
430
See supra note 224-225 and accompanying text (quoting William Livingston) (emphasis added).
431
432
433
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the electorate can already vote Congressmembers out of office for any reason or no reason
whatsoever, reading a constitutional requirement as a mere “electoral scorecard” effectively renders
it a nullity, which of course goes against all accepted principles of construction as Douglas‟
Richardson dissent rightly noted.434 Instead of an unacceptable nullification of the Account Clause,
it should be obvious that its use of the word “shall” imposes a duty on the two branches actually
appropriating and expending public funds to account for all such expenditures to the obligee,
namely, the American people.
6. Black Budgets Violate the Account Clause
There being a duty, obligors, and obligee, the second question is whether there has been a
breach. In the case of the CIAA, there can be no question that there is a breach, just as the Church
Committee already concluded three decades ago.435 Whereas the Account Clause requires an
occasional published statement of “Expenditures of all public Money,” the CIA annually expends
billions of taxpayer dollars siphoned secretly from other appropriations, and accounts for this solely
with a DCIA “certificate” purporting that the funds were expended for authorized purposes of a
confidential nature.436 It matters not whether this “certificate” states a mere total, broad categories,
or even minute line items, because it constitutes a breach simply to withhold this entire accounting
record indefinitely, as is the present practice.437 The availability of all budgetary details to certain
authorized congressional committees438 and availability of somewhat less detail to other
Congressmembers439 of course does nothing to cure this breach, since the duty owed is from the
government to the public, not from the Executive to Congress.440
The case of the DOD black budget is less certain, because the DOD does publish annual
budgets that now at least specify line items for “classified programs,” the total appropriations for
which, though left blank, can at least be discerned through simple arithmetic.441 Moreover, these
totals can be distinguished from one another somewhat based on the military branches to which they
are attributed (Army, Air Force, or Navy) and the budget sections in which they are located
(personnel, operations, procurement, research and development, or construction), making for fifteen
possible categorizations.442 This may provide something more like an ordinary accounting than the
CIA‟s total lack of one, but it still comes nowhere near the gold standard of reporting “Expenditures
of all public Money.”443 Of course, Rufus King was correct that it would probably be
“impracticable” to account for “every minute schilling,” but that practical reality contemplated in
the original meaning of the Account Clause does not give license to shuffle $50 billion into the
434
See supra note 264 and accompanying text (discussing Justice Douglas‟ argument that reading the Account Clause as a mere description
of what Congress ought to do to avoid adverse electoral consequences, rather than an enforceable duty, “effectively reduce[s] that clause to a
nullity, giving it no purpose at all”).
435
See supra notes 87-98 and accompanying text (discussing the Church Committee‟s finding of an Account Clause violation, its
recommendations, and the aftermath).
436
See supra notes 74-81 and accompanying text (discussing the accounting portion of the CIAA).
437
See supra notes 76-78 and accompanying text (noting the concealment of the CIAA-approved accounting certificate from the public, as
per the DNI‟s statutory obligations).
438
See supra notes 102-109 and accompanying text (discussing congressional oversight of the CIA black budget from the Church Committee
through 1991).
439
See supra notes 110-113 and accompanying text (discussing limitations of congressional oversight of the CIA black budget from 1991 to
the present).
440
See supra notes 392-435 and accompanying text (analyzing the meaning of the Account Clause).
441
See supra notes 42-58 and accompanying text (describing the method for concealing “black” expenditures in the ordinary DOD budget
and how to calculate them).
442
See id.
443
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above fifteen overbroad categories, and then into subcategories with titles as meaningless as
"Special Programs" or "Other.”444 A practicable and probably constitutional middle ground would
be adopting the same range of specificity as the ordinary portions of the DOD budget, which
specifies in thousands of line items things like numbers of personnel paid, particular types of
equipment purchased, the quantities of some large pieces of equipment purchased (aircraft, vehicles,
missiles, etc.), which major construction projects can begin, and so on.445 The congressional rules
and DOD regulations establishing these line item specificity levels are too voluminous to address
here,446 but their end result captures the true essence of what the Accounts Clause sought to
guarantee: not necessarily a report on “every minute schilling,” but at least categorization with
enough detail that a reasonable voter could understand where his or her money truly is going and
vote accordingly.447
C. NO JUDICIAL REMEDY EXISTS
There being both a duty and a breach, the third and final question is whether actual
enforcement and a remedy can be obtained, and the answer from the judiciary to date has been a
resounding “no.”
1. Citizens Have No Standing to Enforce the Account Clause
First and foremost, citizen standing to enforce the Account Clause was unequivocally
rejected in Richardson, because the inability of any citizen plaintiff to exercise the franchise with
adequate information on the black budget appropriations for which candidates vote, even if
considered a cognizable “injury,” is nonetheless one “common to all members of the public” and
would not in any conceivable circumstance “single out” a particular plaintiff.448 It might be argued
that a citizen more personally interested in the information suffers an injury of greater degree than
the rest of the public, but this subjective approach would have no merit in light of the fact that
Richardson had made very determined efforts to obtain a CIA accounting from the Treasury
Department in both formal mailed requests449 and a prior lawsuit450 before filing the second suit that
made it to the Supreme Court, which treated his injury as no different than that of the millions who
never conceive in their lifetimes that a black budget even exists, much less expend a great deal of
444
See supra notes 42-58 and accompanying text (describing the method for concealing “black” expenditures in the ordinary DOD budget
and how to calculate them).
445
See, e.g., DEPARTMENT OF DEFENSE, DEPARTMENT OF DEFENSE BUDGET FISCAL YEAR 2010, PROCUREMENT PROGRAMS (P-1) (May
2009), available at http://comptroller.defense.gov/comptroller/defbudget/fy2010/fy2010_p1.pdf; DEPARTMENT OF DEFENSE, DEPARTMENT
OF DEFENSE BUDGET FISCAL YEAR 2010, MILITARY PERSONNEL PROGRAMS (M-1) (May 2009), available at
http://comptroller.defense.gov/defbudget/fy2010/fy2010_m1o1.pdf; DEPARTMENT OF DEFENSE, DEPARTMENT OF DEFENSE BUDGET FISCAL
YEAR 2010, OPERATION AND MAINTENANCE PROGRAMS (O-1) (May 2009), available at
http://comptroller.defense.gov/defbudget/fy2010/fy2010_m1o1.pdf; DEPARTMENT OF DEFENSE, DEPARTMENT OF DEFENSE BUDGET FISCAL
YEAR 2010, RESEARCH DEVELOPMENT, TEST & EVALUATION PROGRAMS (R-1) (May 2009), available at
http://comptroller.defense.gov/defbudget/fy2010/fy2010_r1.pdf; DEPARTMENT OF DEFENSE, DEPARTMENT OF DEFENSE BUDGET FISCAL
YEAR 2010, MILITARY CONSTRUCTION, FAMILY HOUSING, AND BASE REALIGNMENT AND CLOSURE PROGRAM (C-1) (May 2009),
available at http://comptroller.defense.gov/defbudget/fy2010/fy2010_c1.pdf; see also CONGRESSIONAL RESEARCH SERVICE, A DEFENSE
BUDGET PRIMER 17, 46 (Dec. 9, 1998), available at http://www.fas.org/sgp/crs/natsec/RL30002.pdf.
446
See generally DOD COMPTROLLER, FINANCIAL MANAGEMENT REGULATION (DOD 7000.14-R),
VOLUME 2A-B: BUDGET PRESENTATION AND FORMULATION (Nov. 10, 2009), available at http://comptroller.defense.gov/FMR/.
447
448
See supra note 251-252, 259 and accompanying text (discussing the Richardson majority‟s explanation of ordinary citizen standing
analysis and then its application to Richardson‟s case after disposing of taxpayer standing); cf. supra note 305 (discussing courts‟ distinction
between “individual injury,” i.e. traditional citizen standing, and “institutional injury,” albeit in a Congressmember standing context).
449
See supra notes 244-246 and accompanying text (discussing the facts leading up to Richardson).
450
See supra note 244 (discussing Richardson‟s 1969 lawsuit dismissed on amount-in-controversy grounds).
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time and money trying to learn more about it as Richardson did.451 As subsequent cases like
Halperin made clear, even plaintiffs vindicating concrete statutory rights in FOIA suits are
nonetheless subjected to the same citizen-standing analysis for any ancillary Account Clause
challenge: because the general public is kept in the dark, the plaintiff asserts a “common” injury and
thus lacks standing.452 Indeed, by definition the government‟s blanket concealment of any
information from the general public always creates a “common” injury, and thus will always
deprive ordinary citizens of standing to enforce the Account Clause, even in the case of the DOD
black budget not at issue in Richardson.453
2. Taxpayers Have No Standing to Enforce the Account Clause
Taxpayer standing entails a distinct and somewhat more permissive analysis, but is still
unavailing in light of Richardson.454 On the one hand, there may still be some room to argue on
Flast‟s first prong: because Richardson disposed of it solely on the assertion that the challenged
CIAA was only a regulation of OMB disbursement and accounting rather than a Taxing and
Spending Clause exercise per se, it appears that Richardson does not foreclose challenges to a more
direct exercise of the Taxing and Spending Clause, such as actual appropriations bills of which
unspecified portions are allocated to the CIA, or defense appropriations bills which allocate tens of
billions to enormous “classified program” categories.455 Indeed, these self-styled appropriations are
the quintessential Taxing and Spending Clause exercise that both Richardson and Flast
distinguished from “incidental expenditure of tax funds in the administration of an essentially
regulatory statute.”456
Even assuming arguendo success on Flast‟s first prong, however, the binding Richardson
majority made Flast‟s second prong dispositive in any event, by asserting that the Account Clause
was not a specific limitation on the Congress‟ Taxing and Spending Clause power.457 The majority
cited to no historical evidence whatsoever to support that reading of the Account Clause, but it is
probably correct: unlike the great deal of historical evidence supporting the Flast Court‟s
conclusion that the Establishment Clause was intended to preclude exercise of the Taxing and
Spending Clause power to the financial benefit of a religion or religion in general,458 the historical
evidence surrounding the Account Clause only indicates that it expressed a bare duty of the
government to the people to publish an occasional accounting, not necessarily a prohibition of
appropriation to purposes not accounted for.459 Throughout all of the many passages extolling the
virtues of accounting publication, not one goes so far as to suggest that an appropriation would itself
451
See supra notes 247-267 and accompanying text (discussing the Richardson opinions, none of which attempted to differentiate between
Richardson‟s situation and any other citizen‟s).
452
See supra notes 269-278 and accompanying text (discussing the standing analysis applied to FOIA plaintiffs who raise an ancillary
Account Clause challenge).
453
See id.
454
See supra notes 253-258 and accompanying text (discussing the Richardson majority‟s explanation of Flast and its application to
Richardson‟s case).
455
See supra note 257 and accompanying text (discussing the Richardson majority‟s application of the first Flast prong).
456
See id.
457
See supra note 258 and accompanying text (discussing the Richardson majority‟s application of the second Flast prong).
458
See supra notes 254, 263 and accompanying text (describing the Establishment Clause as a Taxing and Spending Clause limitation under
Flast‟s second prong); see also Flast, 392 U.S. at 103-105 (discussing the historical evidence supporting this interpretation of the
Establishment Clause).
459
Compare supra notes 215-218 and accompanying text (laying out evidence from a comprehensive search of Philadelphia Convention
records); supra notes 221-242 and accompanying text (laying out evidence from a comprehensive search of ratifying convention records);
supra notes 392-435 and accompanying text (analyzing the meaning of the Account Clause) with Flast, 392 U.S. at 103-105 (discussing the
historical evidence supporting this interpretation of the Establishment Clause).
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be invalid without an accounting.460 As such, Richardson‟s majority holding, though weakened by

its splintered opinions461 and limited to narrow facts,462 appears unassailable so long as the second
prong of the Flast test remains good law.463 This may have the perverse consequence that
apparently no one has standing, but the Supreme Court made abundantly clear in a companion case
that “[t]he assumption that if [plaintiffs] have no standing to sue, no one would have standing, is not
a reason to find standing,”464 and the Richardson majority even added that the impossibility of
standing only supports the proposition that the Account Clause is left up to electoral enforcement,465
so taxpayers are obviously out of the picture.
3. Servicemembers Have No Standing to Enforce the Account Clause
Servicemember standing appears to be the only end-run around traditional citizen standing
analysis that would be novel with respect to the black budget in particular, but its absence from the
case law is most likely a product of its minimal odds of success. Surely Mottola bars any suit from
ordinary servicemembers with generalized grievances,466 so any assertion of standing must be in the
limited scenario where a servicemember has been ordered into live combat much like the plaintiffs
that successfully asserted standing in past wars.467 A tie-in to the black budget would then be
needed, such as the added twist that the combat would be in the midst of a covert action, and the
servicemember seeks a declaratory judgment that it violates the Account Clause for the Executive to
conceal the huge expenditures making that covert action possible. Going through the first prong of
ordinary standing analysis that brought about servicemember standing, it would appear that at least
the danger of violent death is a “concrete” “injury in fact” not shared by the general public and the
order‟s date establishes “imminen[ce],” but this hypothetical plaintiff would almost certainly fail on
the remaining prongs.468
One might argue that the President would not be ordering a secret war if he or she had to
account for its costs and bear the electoral consequences, and thus a Court can “fairly…trace[]” a
“causal relationship” between the injury (the order into combat) and the challenged action (the
Executive‟s Account Clause violations),469 but that causal link is so attenuated as to border on
frivolous. Every voter enters the ballot box weighing numerous considerations, and a small covert
action halfway around the world, with or without congressional authorization, would not necessarily
be decisive, or at least would not necessarily be thought decisive by the President when making the
order at issue in this scenario. On the same token, there would be an extremely low “likelihood that
the injury w[ould] be redressed by a favorable decision”: even if a court were to enforce the
460
See supra notes 215-218 and accompanying text (laying out evidence from a comprehensive search of Philadelphia Convention records);
supra notes 221-242 and accompanying text (laying out evidence from a comprehensive search of ratifying convention records); supra notes
392-435 and accompanying text (analyzing the meaning of the Account Clause).
461
See supra notes 262-267 and accompanying text (discussing Richardson‟s dissents and decisive concurrence).
462
See supra notes 455-456 and accompanying text (observing that the Richardson plaintiff‟s challenge to solely the CIAA renders the case‟s
Flast application non-binding to actual appropriations).
463
See supra note 258 and accompanying text (discussing the Richardson majority‟s application of the second Flast prong); supra notes 458-
459 and accompanying text (concluding that historical evidence is consistent with the Richardson majority‟s application of the second Flast
prong).
464
See supra note 260 (noting the Schlesinger companion case).
465
See supra notes 260-261 and accompanying text (discussing the Court‟s treatment of the “no one would have standing” argument).
466
See supra note 279 and accompanying text (discussing the Mottola case).
467
Cf. supra notes 274-278 and accompanying text (discussing successful assertions of servicemember standing with respect to the Vietnam
War, Gulf War, and Iraq War and the logic underlying them).
468
See id.
469
See id.
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Account Clause with an injunction requiring the Executive to account for expenditures directed to
combat operations (if not more), there is no basis to expect that this publication and resulting
political pressure would cause the President to rescind his or her order and thus eliminate the
“injury.”470 These questions depend on too many political variables involving too many people to
near the level of probability the courts faced in servicemember standing cases involving Vietnam,
the Gulf War, or the Iraq War, where it was abundantly clear that (2) an asserted Executive
usurpation of congressional power under the War Powers Clause directly caused the plaintiffs‟
deployment orders and (3) an injunction invalidating said orders would most likely prevent the
plaintiffs from being sent into combat.471
4. Congressmembers Have No Standing to Enforce the Account Clause
The only other possible means to circumvent citizen standing analysis is use of a
Congressional plaintiff deprived of information that the Account Clause guarantees. However, even
supposing a fact pattern where dozens of Congressmembers have found that classified annexes to
defense appropriations bills provide an inadequate level of detail about the CIA black budget472 or
DOD black budget473 and they have repeatedly requested further detail from pertinent congressional
committees and Executive agencies only to be kept in the dark, much like in the Rohrabacher
episode,474 recent standing jurisprudence would be equally unavailing.475 Looking at early cases like
Mitchell or Dellums one could have easily argued that black budget details “bear upon” the
plaintiff‟s exercise of “constitutional duties or rights” to make a meaningful vote for or against
appropriations,476 but these abstract rights melt away in the face of Raines and its progeny.477
For starters, there would be no grounds to assert “institutional injury” under Raines‟ first
prong; although Raines‟ reference to a “vast difference between [Coleman‟s] level of vote
nullification” and the Raines plaintiffs‟ “abstract dilution” suggests that there is a wide spectrum
between those extremes and future cases might present a gray area, Congressmembers
underinformed about the black budget are even further from Coleman than the Raines plaintiffs
were.478 Because the Raines plaintiffs adopted complex tradeoffs to vote for voluminous
appropriations bills only to see their actual votes eviscerated by line item vetoes, Account Clause
plaintiffs would fail a fortiori by asserting the even more “abstract dilution” of merely being
uncertain whether every penny they appropriate will go exactly where they expect, while still
retaining the right to vote for or against bills with total certainty that their votes will be given “full
effect.”479
As if Raines were not restrictive enough, the D.C. Circuit‟s definition of “nullification” in
later cases delivers the coup de grace. Since Chenoweth noted that even outright violations of the
“constitutionally mandated process of enacting law” (e.g. House origination of revenue-raising
470
See id.
471
See id.
472
See supra notes 101-113 and accompanying text (discussing the history of CIA budget congressional oversight between the Church
Committee and the present).
473
See supra notes 162-183 and accompanying text (the history of DOD black budget congressional oversight).
474
See supra notes 179-182 and accompanying text (describing the Rohrabacher episode).
475
See supra notes 280-314 and accompanying text (discussing congressmember standing jurisprudence).
476
See supra notes 280-281 and accompanying text (discussing broader early congressmember standing jurisprudence).
477
See supra notes 290-314 and accompanying text (discussing the Raines decision and its progeny).
478
See supra notes 292-297 and accompanying text (discussing Raines‟ first prong).
479
See id.
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bills) did not constitute nullification, it should follow that violating a less weighty constitutional
mandate merely providing information potentially relevant to enacting law (e.g. the Account
Clause) would be even less likely to constitute nullification.480 Campbell is even more
straightforward by finding no nullification where there is any post hoc “legislative remedy.”481
While Account Clause plaintiffs could argue that in practice concealment of the very information
sought deprives ordinary Congressmembers of the sort of strong political impetus needed to propose
and implement sweeping transparency reforms with a majority voice, the Campbell test offers no
such exception and is steeped in syllogistic formalism: because Congress still has the post hoc
“legislative remedy” of simply creating new internal rules or statutes entitling ordinary
Congressmembers to any and all budgetary details should its majority voice so choose, there is no
nullification.482
In any event, Account Clause plaintiffs would probably fail under Raines‟ second prong:
even supposing that some wayward circuit finds lack of information a nullification and supposing
that each of the plaintiffs‟ votes on a particular appropriations bill would change given the
information sought, in nearly all cases that change in a paltry few votes would not change the
outcome of the overall floor vote.483 This is especially true in light of Baird‟s onerous requirement
that all assertedly nullified legislators be co-plaintiffs;484 even though 63% of Congressmembers are
outside the committees with access to the CIA budget's full detail, 67% are outside the defense
committees with access to ordinary SAPs‟ full detail, and 98% are outside the Gang of Twelve with
access to “waived” SAPs‟ partial detail, it would be virtually impossible to find more than a few
with enough interest and courage to actually step up and join a lawsuit.485
There being no “institutional injury” as Raines and its progeny have defined it, a
Congressional plaintiff would have to assert some sort of “individual injury” “singl[ing] out” him or
her.486 One might interpret Raines‟ use of the phrase “all Members of Congress…equally” to define
“institutional injury” as a suggestion that “individual injury” might include a practice harming some
Congressmembers equally but not all, such as the present procedures keeping roughly two-thirds of
Congressmembers consistently out of the loop, but this would read too much into that phrase.487
Raines cited as the classic example of an “individual injury” the Powell v. McCormack plaintiff‟s
individual exclusion from the House,488 which is worlds apart from a few Congressmembers
asserting that they and a majority of Congress are underinformed. Further, in light of Chenoweth‟s
acknowledgement that cases not inconsistent with Raines survive it,489 Harrington would continue
to support the proposition that an Congressmember cannot assert as an individual injury a
“subjective” perception of losing “generalized, amorphous, overall effectiveness” caused by
abstract “uncertainty due to the lack of information as [to]…future votes,” particularly when his or
480
Id. at 116 (citing Moore v. U.S. House of Representatives, 733 F.2d 946 (1984)).
481
See supra notes 311-314 and accompanying text (discussing Campbell and its progeny).
482
See id.
483
See supra notes 292-297 and accompanying text (discussing Raines‟ first prong).
484
See supra note 307 and accompanying text (discussing the Baird gloss on Raines‟ second prong).
485
See supra notes 106, 166, 171-172 and accompanying text (delineating the committees privy to CIA and DOD black budget information
and totaling their membership).
486
See supra notes 291-305 (discussing the distinction between “individual injury” and “institutional injury” in the Congressmember
standing context).
487
See id.
488
See supra note 290 (discussing McCormack).
489
See supra notes 309-310 and accompanying text (discussing Chenoweth‟s assessment of whether two precedents “survive[d] Raines”).
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her “fellow legislators‟ perspective” still remains that he or she and a “large majority of…fellow
members” should only have access to limited information.490 Though Harrington only sought
enforcement of accounting statutes and not the Account Clause, Congressional plaintiffs raising the
latter could only make the same subjective arguments about “effectiveness” that failed in
Harrington.491 A Congressional plaintiff certainly could simply file in another Circuit where only
Raines is binding,492 but given the D.C. Circuit‟s extraordinary expertise and prestige with regard to
constitutional controversies due to their relative frequency there, it is highly likely that Harrington
will be afforded deference. It is virtually certain that no court in the land would again entertain any
argument that information‟s relevance to “effectiveness” confers standing, especially with the
addition of Halperin‟s dictum that the Richardson majority‟s approach to standing truly “intended a
holding broad enough to cover all challenges to the CIA Act under the…Account Clause” rather
than just citizens‟,493 Harrington‟s slavish deference to Congress‟ virtually unfettered internal
information control discretion under the Rulemaking Clause,494 and Raines‟ lengthy passage about
the Court‟s extreme reluctance to jeopardize its legitimacy with a countermajoritarian disruption of
the separation of powers.495
5. Political Question Doctrine Would Probably Bar Account Clause Merits
This same aversion to disrupting the separation of powers also lies at the heart of the
political question doctrine, which would probably dispose of any Account Clause case even
assuming arguendo that some wayward circuit finds standing or, as was seen in Doe v. Bush, simply
declines to address standing because non-merits issues need not be addressed in any particular
order.496 While an explicit constitutional duty imposed on the entire government hardly seems a
purely “political” grant of total discretion to an electoral branch in the classical sense that Marbury
used it,497 the inconsistent and unpredictable modern use of political question doctrine since Baker
leaves the issue uncertain.498 Looking to Baker‟s six factors alone,499 one could certainly argue that
(1) abundant evidence supports the above conclusion that the Account Clause creates a public right
and imposes an explicit duty on the entire government,500 and it would be folly to conclude that
imposing a duty on any electoral branch simultaneously commits to that branch enforcement of its
own duty;501 (2) “judicially discoverable and manageable standards” are easily found in the three
parameters set out in the Account Clause‟s own text (publication, “all” expenditures, and “from
time to time”)502 as well as congressional rules and DOD regulations already describing in detail the
490
See supra notes 282-289 and accompanying text (discussing the Harrington decision) (emphasis added).
491
See id.
492
See supra note 304 (noting the case of Schaffer v. Clinton, which was unusual for being filed in the 10th Circuit rather than the D.C.
Circuit that typically hears controversies between Congressmembers and the Executive).
493
See supra note 272 and accompanying text (noting Halperin‟s extremely broad reading of the Richardson majority‟s taxpayer-standing
decision) (emphasis added).
494
See supra note 289 and accompanying text (noting Harrington‟s deference to the Rulemaking Clause).
495
See supra notes 298-301 and accompanying text (discussing Raines‟ additional separation-of-powers rationale); see also supra note 263
and accompanying text (discussing Powell‟s Richardson dissent to which Raines favorably cited).
496
See supra note 277 (noting Doe v. Bush, in which servicemember plaintiffs presumably would have had standing, but the Court simply
declined to address the standing issue because ripeness doctrine was already dispositive of the case and “[t]here is no required sequence to
the consideration of the various non-merits issues presented,” such as standing or the political question doctrine).
497
See supra notes 315, 317 and accompanying text (discussing the doctrine‟s classical origins).
498
See supra notes 319-324 and accompanying text (discussing the history of doctrinal confusion not remedied by Baker).
499
See supra notes 320-323 and accompanying text (discussing the Baker test).
500
501
See supra notes 433-435 and accompanying text (addressing this issue on the merits).
502
See supra note 186 and accompanying text (introducing the Account Clause).
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level of line item specificity required for unclassified portions of the budget;503 (3) requiring
compliance with an explicit constitutional duty would not require actual prospective creation of
policy, but rather the sort of post hoc textual interpretation and factual application expected of the
judiciary and for which the judiciary has attained a great deal of expertise; (4) simply establishing
parameters for Account Clause compliance would no more “express[] lack of respect due coordinate
branches” than courts‟ outright invalidation of other branches‟ actions on the basis of other
provisions like the First Amendment or Due Process Clause, which has happened countless times
without dismissal on political question grounds; (5) there is no imminent international crisis, treaty
obligation, or other very extraordinary circumstance that necessitates “unquestioning adherence to
[the] political decision already made” to conceal massive public expenditures, even supposing that
the long-past Cold War underlying that decision was such an extraordinary circumstance; and (6)
the “potentiality of embarrassment” from “multifarious pronouncements” is typically in reference to
embarrassment in the minds of outside entities, such as treaty partners, whereas a difference of
opinion between the judiciary and electoral branches would not be unduly embarrassing with
respect to a purely internal matter like the budget.504
While each of these arguments and others could at the very least demonstrate that none of
the six Baker factors is “inextricable” from an Account Clause challenge or “[p]rominent on the
surface of [the] case,” which is all that Baker requires to ensure justiciability in theory,505 in actual
practice the political question doctrine defies predictability except to the extent that justiciability is
least likely in cases permeated by considerations of foreign policy and national security.506 This has
been the case notwithstanding Baker‟s explicit admonition that “it is error to suppose that every case
or controversy which touches foreign relations lies beyond judicial cognizance,” and that courts
should instead engage in “discriminating analysis” of the “particular question posed” in terms of its
history, its nature, and the possible consequences of its judicial disposition.507 The courts‟ persistent
reluctance to interfere with foreign policy and national security affairs has led some to disregard this
admonition outright, or others to simply examine the “particular question posed” with strong
deference to congressional and executive judgments.508
This “hands-off” trend would probably extend to the Account Clause, because publishing
CIA expenditures in any level of detail deeper than perhaps internal bureaus would certainly
jeopardize numerous covert actions and intelligence gathering activities around the world, and
publishing DOD expenditures for specific technologies would certainly accelerate present and
future adversaries‟ efforts to counteract them. In either case, it must be conceded by any plaintiff
that compliance with the Account Clause would necessitate at least some demonstrable detriment to
national security including deaths of spies, soldiers, and civilians alike, and the judiciary will be
extremely reluctant to make that macabre tradeoff when the political question doctrine presents a
convenient “escape hatch” leaving responsibility on the shoulders of the electoral branches.509
503
See supra notes 446-447 and accompanying text (noting these sources of accounting standards applicable to the ordinary DOD budget).
504
See supra notes 320-328 and accompanying text (discussing the Baker test and scholarly interpretations of some of its factors).
505
See supra note 322 and accompanying text (describing the extent to which a Baker factor must be implicated before it renders a case
nonjusticiable).
506
See supra notes 330-333 and accompanying text (discussing the political question doctrine‟s post-Baker application).
507
See supra note 334 and accompanying text (discussing this caveat in Baker).
508
See supra notes 330-333 and accompanying text (discussing the political question doctrine‟s post-Baker application).
509
See id.; see also supra notes 319-334 and accompanying text (discussing the history of doctrinal confusion not remedied by Baker).
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This escape becomes even more convenient upon review of instructive statements in
Richardson510 and a firm holding in Halperin511 that Account Clause challenges will apparently
always run afoul of the political question doctrine. Although the Richardson majority‟s application
of political question doctrine can be strongly attacked on the ground that it was mere obiter dicta on
issues not raised in the case512 and in any event cited to no historical evidence whatsoever for its
conclusion,513 its positive citing in Halperin entitles it to strong deference in lower courts. Although
Halperin itself could be strongly attacked because its finding of a nonjusticiable political question
relied solely on the Court‟s prior conclusion that the Account Clause‟s enforcement was “committed
to a coordinate branch,” which is a fundamental misunderstanding of the Account Clause based on
incomplete evidence as argued above,514 it remains binding authority in the D.C. Circuit where
cases of this nature usually arise, and other circuits‟ trend of deference to the D.C. Circuit on
constitutional issues would most likely have the same effect, particularly given that Halperin had no
dissent like Richardson did.
VI. CONCLUSION
In sum, upon review of all applicable laws, there can be no doubt that the black budget is not
a usurpation by the Executive, but the product of a thoroughly contemplated and long-standing
exercise of Congress‟ Appropriations Clause power in cooperation with the Executive. There being
a mutual decision of both electoral branches to keep both the third branch and the Sovereign
(namely, the American people) in the dark so far as approximately $94 billion of annual
expenditures are concerned, the only apparent source of constitutional remedy is the Account
Clause. Even though the weight of historical evidence suggests that the Account Clause grants a
public right that the federal government is obligated to satisfy with an occasional publication of all
expenditures, the judiciary branch has made loud and clear, on one ground or another, its total
unwillingness to give that Clause legal effect. As Justice Douglas‟ Richardson dissent rightly
lamented, all three branches of the federal government have simply “read [the Account Clause] out
of the Constitution…effectively reduc[ing it] to a nullity, giving it no purpose at all.”515 We are
lackadaisically assured that it can be enforced by ample electoral remedies, but the very purpose of
a constitutional mandate is to supersede the irrational whims or inaction of the majority, not to
provide a mere electoral scorecard to guide voters. Moreover, these electoral remedies are not only
“[s]low, cumbersome, and unresponsive” as the Richardson majority conceded,516 but indeed totally
ineffective because the Account Clause‟s continued trampling has always been and will continue to
be an openly bipartisan affair in a two-party system. The Clause is, at the end of the day,
Blackstone‟s proverbial “dead letter,” written “in vain” with “no method to secure [its] actual
enjoyment.”517
510
See supra notes 335-340 and accompanying text (discussing the Richardson majority‟s tangential application of political question doctrine
in obiter dicta).
511
See supra notes 341-349 and accompanying text (discussing Halperin‟s direct application of political question doctrine).
512
See supra note 338, 340 and accompanying text (describing the tangential nature of the Richardson majority‟s political question doctrine
argument).
513
See supra note 338-339 and accompanying text (describing the conclusory nature of the Richardson majority‟s political question doctrine
argument).
514
515
See supra note 264 and accompanying text (quoting Justice Douglas).
516
See supra note 339 and accompanying text (discussing Richardson‟s emphasis of the plaintiff‟s ample electoral remedies).
517
1 WILLIAM BLACKSTONE, COMMENTARIES ON THE LAWS OF ENGLAND *125-139.
51
Jordan Gall
One is apt to wonder whether the issue is due for a fresh look, considering that many of the
aforementioned courts (and indeed the evidence they selected) were understandably driven by the
historical context of a Cold War that at the time was perceived as a struggle for survival of the
American way of life. On the other hand, events in the first decade of the 21st Century amply
demonstrate that the world is still rife with threats the likes of which the Framers could not possibly
have foreseen, and any marginal increase in transparency necessarily comes with a price in blood
and treasure. Whatever the legal soundness of the Account Clause‟s effective deletion, the wisdom
of this tradeoff in a policy sense remains an open question.
52

The "Power of The Purse" With A $94 Billion Hole: The Legal Basis and Constitutional Implications of "Black Budget" Appropriations

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The "Power of The Purse" With A $94 Billion Hole: The Legal Basis and Constitutional Implications of "Black Budget" Appropriations

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The “Power of the Purse” with a $94 Billion Hole:

The Legal Basis and Constitutional Implications of “Black Budget” Appropriations

“The Pentagon‟s $36 billion black budget is a license to steal.”

“A popular government without popular information, or the means of

2. Drafting and Ratification History

2. Political Question Doctrine

„MR. BORK: I think that is correct.‟”

A. BLACK BUDGET APPROPRIATIONS DO NOT VIOLATE THE APPROPRIATIONS CLAUSE

be invalid without an accounting.460 As such, Richardson‟s majority holding, though weakened by

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