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A Project of The Annenberg Public Policy Center

Palin’s Constitutional Stretch

At the Conservative Political Action Conference, former Alaska Gov. Sarah Palin said that the Senate was “in violation of Article I, Section 9, Clause 7 of our U.S. Constitution” by failing to “pass a budget.” She’s referring to a budget resolution. But that constitutional clause doesn’t mention a budget or a budget resolution, which was not required of the Senate until the 1974 Congressional Budget Act. The responses to Palin’s interpretation from constitutional scholars ranged from “completely invalid” to “kind of a stretch.”

Palin made her comments in a March 16 speech at the annual conservative conference (10:30 mark):

Palin, March 16: .. while we’re breaking [middle-class Americans’] budget, the Democrat-controlled Senate refuses to pass a budget. That was how many years ago that they did? How many trillions-in-debt ago? All in violation of Article I, Section 9, Clause 7 of our U.S. Constitution. No budget for 4 years. No budget for four years is not just bureaucratic bungling. Refusing to pass a budget is government refusing to declare what it intends to do with the people’s money.

Palin made a similar claim in April 2012, but said it was the president who was in violation of the Constitution, not Congress.

Article I, Section 9, Clause 7 doesn’t say anything about a Senate budget resolution, which isn’t surprising since it didn’t exist until the 1974 Budget Act. Here’s what the brief clause does say:

Article I, Section 9, Clause 7: No Money shall be drawn from the Treasury but in Consequence of Appropriations made by Law; and a regular Statement and Account of the Receipts and Expenditures of all public Money shall be published from time to time.

What does that mean? The Congressional Research Service, in its lengthy analysis of the U.S. Constitution, says that the clause “is a limitation upon the power of the Executive Department and does not restrict Congress in appropriating moneys in the Treasury.” The CRS goes on to say that the Supreme Court “has also recognized that Congress has a wide discretion with regard to the extent to which it shall prescribe details of expenditures for which it appropriates funds and has approved the frequent practice of making general appropriations of large amounts to be allotted and expended as directed by designated government agencies.”

In other words, Congress doesn’t have to spell out how every penny should be spent — it can leave some details to federal agencies — and the president can’t spend money without Congress appropriating it. And Congress has appropriated money every year through appropriation bills, which can be found going back to 1998 on the Library of Congress website.

As for budget resolutions, the Senate has indeed failed to pass one since 2009 for fiscal 2010. The 1974 Budget Act, which laid out a timetable for the congressional budget process, isn’t strictly enforced  — since the act, Congress has met its budget resolution deadline only six times. And Congress failed to complete action on budget resolutions for fiscal years 1999, 2003, 2005 and 2007, as well as in recent years.

Of course, the Constitution can be interpreted in different ways. Could Palin’s claim — that the Senate violated the Constitution by not passing a budget resolution — be valid?

Not according to Laurence H. Tribe, the Carl M. Loeb university professor and professor of constitutional law at Harvard Law School. Tribe told us via email: “Her interpretation is completely invalid.”

Louis Fisher, a constitutional scholar who worked for the Library of Congress for four decades as a specialist in separation of powers and constitutional law, told us Palin’s claim “seems like a big stretch to me.” Fisher noted that “Congress complies with that clause in Article I by appropriating funds each year, even if the Senate does not produce a ‘budget.’ ” He added, as we explained above, that the budget resolution “did not exist until the Budget Act of 1974.”

Douglas O. Linder, professor of law at the University of Missouri-Kansas City Law School, said, “I think it’s kind of a stretch to be honest to say it’s a violation of that section. … I think most constitutional scholars and most courts would disagree with her.” Linder added that that’s “not to say there’s absolutely nothing to her argument.” There are various interpretations to constitutional matters, after all.

Palin also said that “[r]efusing to pass a budget is refusing to declare what [Congress] intends to do with the people’s money.” But as Fisher said, Congress passes annual appropriations bills. Budget resolutions aren’t laws — they’re outlines for spending, which is actually set in appropriations bills. As the Washington Post explained this year, “A budget isn’t necessary.”

The Democratic-controlled Senate Budget Committee argues that the Budget Control Act is indeed the budget for fiscal 2012 and 2013. It says the act “is even more extensive than a traditional budget resolution,” because it’s the law, can be enforced and requires discretionary caps for 10 years.

We’ll leave it to our readers to decide whether the Senate should have passed a budget resolution in recent years. But Palin’s claim that the legislators violated the Constitution doesn’t square with the relatively short history of budget resolutions — and scholars doubt a court would agree with her.

— Lori Robertson