Controlling Federal Agencies by Claims on Their Appropriations? The Takings Bill and the Power of the Purse

Abstract

The "takings" bills now moving through Congress contain a new method for funding private takings claims brought against the federal government. Previously, constitutionally-based claims were paid either from a permanently- appropriated, government-wide 'judgment fund" on an entitlement basis or from specifically earmarked funds. Under a new "claims-on-agency-appropriations" approach, statutorily-based takings claims will affect directly on agencies' personnel funds-even if the agency in question is fulfilling its legally mandated mission. In the light of possible executive branch counterresponses, Professor Tiefer examines the separation of powers implications of this new mechanism with regard to three interests: faithful execution of the laws, public fiscal control; and compensation of private claims. He concludes that the courts should let interbranch conflicts triggered by the new mechanism be resolved by the political processes that operate within the arena of the fiscal constitution.