Authority for the Continuance of Government Functions 

During a Temporary Lapse in Appropriations

Statutory authority for an agency to incur obligations in advance of appropriations heed 

not be express, but may be implied from the specific duties that: have been imposed 

upon, or of authorities that have been invested in, the agency.

The “authorized by law” exception in the Antideficiency Act exempts from that Act’s 

general prohibition not only those obligations for which there is statutory authority, 

but also those obligations necessarily incident to initiatives undertaken within the 

President’s constitutional powers.

A government agency may employ personal services in advance of appropriations only 

when there is a reasonable and articulable connection between the function to be 

performed and the safety of human life or the protection of property, and when there is 

some reasonable likelihood that either or both would be compromised in some degree 

by delay in the performance of the function in question.

January 16, 1981

T h e P r e s id e n t

T h e W h i t e H o u s e

My D e a r M r. P r e s i d e n t : Y ou have asked my opinion concerning the 

scope of currently existing legal and constitutional authorities for the 

continuance of government functions during a temporary lapse in appropriations, such as the government sustained on October 1, 1980. As 

you know, some initial determination concerning the extent of these 

authorities had to be made in the waning hours of the last fiscal year in 

order to avoid extreme administrative confusion that might have arisen 

from Congress’ failure timely to enact 11 of the 13 anticipated regular 

appropriations bills,1 or a continuing resolution to cover the hiatus 

between regular appropriations. The resulting guidance, which I approved, appeared in a memorandum that the Director of the Office of 

Management and Budget circulated to the heads of all departments and 

agencies on September 30, 1980. Your request, in effect, is for a close 

and more precise analysis of the issues raised by the September 30 

memorandum.

Before proceeding with my analysis, I think it useful to place this 

opinion in the context of my April 25, 1980, opinion to you concerning 

the applicability of the Antideficiency Act, 31 U.S.C. § 665, upon lapses

'P rior to October 1, 1980, Congress had passed regular appropriations for fiscal year 1981 only for 

energy and water development, Pub. L. No. 96-367, 94 Stat 1331 (Oct. 1, 1980).

i
in appropriations, 43 Op. A tt’y Gen. No. 24, 4 Op. O.L.C. 16 (1980). 

That opinion set forth tw o essential conclusions. First, if, after the 

expiration of an agency’s appropriations, Congress has enacted no appropriation for the immediately subsequent period, the agency may 

make no contracts and obligate no further funds except as authorized 

by law. Second, because no statute generally permits federal agencies to 

incur obligations without appropriations for the pay of employees, 

agenices are not, in general, authorized by law to employ the services 

of their employees upon a lapse in appropriations. My interpretation of 

the Antideficiency Act in this regard is based on its plain language, its 

history, and its manifest purposes.

The events prompting your request for my earlier opinion included 

the prospect that the then-existing temporary appropriations measure 

for the Federal Trade Commission (FTC) would expire in April, 1980, 

without extension, and that the FTC might consequently be left without appropriations for a significant period.2 The FTC did not then 

suggest that it possesses obligational authorities that are free from a 

one-year time limitation. Neither did it suggest, based on its interpretation of the law at that time, that the FTC performs emergency functions involving the safety of human life or the protection of property 

other than protecting government property within the administrative 

control of the FTC itself. Consequently, the legal questions that the 

April 25, 1980, opinion addressed were limited. Upon determining that 

the blanket prohibition expressed in § 665(a) against unauthorized obligations in advance of appropriations is to be applied as written, the 

opinion added only that the Antideficiency Act does permit agencies 

that are ceasing their functions to fulfill certain legal obligations connected with the orderly termination of agency operations.3 The opinion 

did not consider the more complex legal questions posed by a general 

congressional failure to enact timely appropriations, or the proper 

course of action to be followed when no prolonged lapse in appropriations in such a situation is anticipated.

The following analysis is directed to those issues. Under the terms of 

the Antideficiency Act, the authorities upon which the government 

may rely for the continuance of functions despite a lapse in appropriations implicates two fundamental questions. Because the proscription of 

§ 665(a) excepts obligations in advance of appropriations that are “authorized by law,” it is first necessary to consider which functions this 

exception comprises. Further, given that § 665(b) expressly permits the

2 FTC actually sustained less than a one-day lapse in appropriations between the expiration, on 

April 30, 1980, of a transfer of funds for its use, Pub. L No. 96-219, 94 Stat. 128 (Mar. 28, 1980), and 

the enactment, on May I, 1980, of an additional transfer. Pub. L. No. 96-240, 94 Stat. 342. Prior to 

April 30, however, it appeared likely that a protracted congressional dispute concerning the terms of 

the FT C ’s eventual authorization, Pub. L. No. 96-252, 94 Stat. 374 (May 28, 1980), would precipitate 

a lapse in appropriations for a significantly longer penod.

9 See note 11, infra.

2
government to employ the personal service of its employees in “cases 

of emergency involving the safety of human life or the protection of 

property,” it is necessary to determine how this category is to be 

construed. I shall address these questions in turn, bearing in mind that 

the most useful advice concerning them must be cast chiefly in the 

form of general principles. The precise application of these principles 

must, in each case, be determined in light of all the circumstances 

surrounding a particular lapse in appropriations.

I.

Section 665(a) of Title 31, United States Code provides:

No officer or employee of the United States shall make or 

authorize an expenditure from or create or authorize an 

obligation under any appropiation or fund in excess of the 

amount available therein; nor shall any officer or employee

involve the Government in any contract or obligation, for the

payment o f money for any purpose, unless such contract or

obligation is authorized by law. (Emphasis added.)

Under the language of § 665(a) emphasized above, it follows that, 

when an agency’s regular appropriation lapses, that agency may not 

enter contracts or create other obligations unless the agency has legal 

authority to incur obligations in advance of appropriations. Such authority, in some form, is not uncommon in the government. For example, notwithstanding the lapse of regular appropriations, an agency may 

continue to have available to it particular funds that are subject to a 

multi-year or no-year appropriation. A lapse in authority to spend funds 

under a one-year appropriation would not affect such other authorities. 

13 Op. A tt’y Gen. 288, 291 (1870).

A more complex problem of interpretation, however, may be presented with respect to obligational authorities that are not manifested in 

appropriations acts. In a few cases, Congress has expressly authorized 

agencies to incur obligations without regard to available appropriations.4 More often, it is necessary to inquire under what circumstances 

statutes that vest particular functions in government agencies imply 

authority to create obligations for the accomplishment of those functions despite the lack of current appropriations. This, of course, would 

be the relevant legal inquiry even if Congress had not enacted the 

Antideficiency Act; the second phrase of § 665(a) clearly does no more 

than codify what, in any event and not merely during lapses in appropriations, is a requirement of legal authority for the obligation of public 

funds.5

•See, e.g.. 25 U.S.C. § 99; 31 U S.C. § 668; 41 U.S.C. § II.

5 This rule has, in fact, been expressly enacted in some form for 160 of the 191 years since Congress 

first convened. The Act of May 1, 1820, provided:

[N]o contract shall hereafter be made by the Secretary of State, or of the Treasury, or

Continued

3
Previous Attorneys General and the Comptrollers General have had 

frequent occasion to address, directly or indirectly, the question of 

implied authority. Whether the broader language of all of their opinions 

is reconcilable may be doubted, but the conclusions of the relevant 

opinions fully establish the premise upon which my April 25, 1980, 

memorandum to you was based: statutory authority to incur obligations 

in advance of appropriations may be implied as well as express, but 

may not ordinarily be inferred, in the absence of appropriations, from 

the kind of broad, categorical authority, standing alone, that often 

appears, for example, in the organic statutes of government agencies. 

The authority must be necessarily inferrable from the specific terms of 

those duties that have been imposed upon, or of those authorities that 

have been invested in, the officers or employees purporting to obligate 

funds on behalf of the United States. 15 Op. A tt’y Gen. 235, 240 (1877).

Thus, for example, when Congress specifically authorises contracts 

to be entered into for the accomplishment of a particular purpose, the 

delegated officer may negotiate such contracts even before Congress 

appropriates all the funds necessary for their fulfillment. E.g., 30 Op. 

A tt’y Gen. 332, 333 (1915); 30 Op. A tt’y Gen. 186, 193 (1913); 28 Op. 

A tt’y Gen. 466, 469-70 (1910); 25 Op. Att’y Gen. 557, 563 (1906). On 

the other hand, when authority for the performance of a specific 

function rests on a particular appropriation that proves inadequate to 

the fulfillment of its purpose, the responsible officer is not authorized to 

obligate further funds for that purpose in the absence of additional 

appropriations. 21 Op. A tt’y Gen. 244, 248-50 (1895); 15 Op. Att’y 

Gen. 235, 240 (1877); 9 Op. A tt’y Gen. 18, 19 (1857); 4 Op. A tt’y Gen. 

600, 601-02 (1847); accord, 28 Comp. Gen. 163, 165-66 (1948).

This rule prevails even though the obligation of funds that the official 

contemplates may be a reasonable means for fulfilling general responsiof the Department of War, o r of the Navy, except under a law authorizing the same, 

or under an appropriation adequate to its fulfillment.

3 Stat. 567, 568. The Act of March 2, 1861, extended the rule as follows:

No contract or purchase on behalf of the United States shall be made unless the same 

is authorized by law or is under an appropriation adequate to its fulfillment, except in 

the W ar and Navy Departments, for clothing, subsistence, forage, fuel, quarters, or 

transportation, which, however, shall not exceed the necessities of the current year.

12 Stat. 214, 220. Congress reiterated the ban on obligations in excess of appropriations by enacting 

the Antideficiency Act in 1870:

[I]t shall not be lawful for any department of the government to expend in any one 

fiscal year any sum in excess of appropriations made by Congress for that fiscal year, 

or to involve the government in any contract for the future payment of money in 

excess of appropriations

Act of July 12, 1870, ch. 251, §7, 16 Stat. 230, 251. Congress substantially reenacted this provision in 

1905, adding the proviso “unless such contract or obligation is authorized by law,” Act of March 3, 

1905, ch. 1484, §4, 33 Stat. 1214, 1257, and reenacted it again in 1906, Act of Feb. 27, 1906, ch. 510,

§ 3, 34 Stat. 27, 48. Section 665(a) o f Title 31, United States Code, enacted in its current form in 1950, 

Act of Sept. 6, 1950, Pub. L. No 81-759, § 1211, 64 Stat. 595, 765, is substantially the same as these 

earlier versions, except that, by adding an express prohibition against unauthorized obligations “in 

advance o f ’ appropriations to the prohibition against obligations “in excess o f ’ appropriations, the 

modern version indicates even more forcefully Congress’ intent to control the availability of funds to 

government officers and employees.

4
bilities that Congress has delegated to the official in broad terms, but 

without conferring specific authority to enter into contracts or otherwise obligate funds in advance of appropriations. For example, Attorney 

General McReynolds concluded, in 1913, that the Postmaster General 

could not obligate funds in excess of appropriations for the employment 

of temporary and auxiliary mail carriers to maintain regular service, 

notwithstanding his broad authorities for the carrying of the mails.

30 Op. A tt’y Gen. 157, 161 (1913). Similarly, in 1877, Attorney General 

Devens concluded that the Secretary of War could not, in the absence 

of appropriations, accept “contributions” of materiel for the army, e.g.,

ammunition and medical supplies, beyond the Secretary’s specific authorities to contract in advance of appropriations. 15 Op. A tt’y Gen. 

209, 211 (1877).6

Ordinarily, then, should an agency’s regular one-year appropriation 

lapse, the “authorized by law” exception to the Antideficiency Act 

would permit the agency to continue the obligation of funds to the 

extent that such obligations are: (1) funded by moneys, the obligational 

authority for which is not limited to one year, e.g„ multi-year appropriations; (2) authorized by statutes that expressly permit obligations in 

advance of appropriations; or (3) authorized by necessary implication 

from the specific terms of duties that have been imposed on, or of 

authorities that have been invested in, the agency.7 A nearly government-wide lapse, however, such as occurred on October 1, 1980, implicates one further question of executive authority.

Unlike his subordinates, the President performs not only functions 

that are authorized by statute, but functions authorized by the Constitution as well. To take one obvious example, the President alone, under 

Article II, § 2, clause 1 of the Constitution, “shall have Power to grant 

Reprieves and Pardons for Offenses against the United States, except in 

Cases of Impeachment.” Manifestly, Congress could not deprive the 

President of this power by purporting to deny him the minimum

6Accord, 37 Comp. Gen. 155, 156 (1957) (Atomic Energy Commission’s broad responsibilities under 

the Atomic Energy Act do not authorize it to enter into a contract for supplies or services to be 

furnished in a fiscal year subsequent to the year the contract is made); 28 Comp. Gen. 300, 302 (1948) 

(Treasury Department’s discretion to establish reasonable compensation for Bureau of the Mint 

employees does not confer authority to grant wage increases that would lead to a deficiency).

7 It was on this basis that I determined, in approving the September 30, 1980, memorandum, that the 

responsible departments are “authorized by law” to incur obligations in advance of appropriations for 

the administration of benefit payments under entitlement programs when the funds for the benefit 

payments themselves are not subject to a one-year appropriation. Certain so-called “entitlement 

programs,” e.g., Old-Age and Survivors Insurance, 42 U S.C § 401(a), are funded through trust funds 

into which a certain portion of the public revenues are automatically appropriated Notwithstanding 

this method of funding the entitlement payments themselves, the costs connected with the administration of the trust funds are subject to annual appropriations. 42 U.S.C. § 401(g). It might be argued that 

a lapse in administrative authority alone should be regarded as expressing Congress’ intent that benefit 

payments also not continue. The continuing appropriation of funds for the benefit payments themselves, however, substantially belies this argument, especially when the benefit payments are to be 

rendered, at Congress’ direction, pursuant to an entitlement formula. In the absence of a contrary 

legislative history to the benefit program or affirmative congressional measures to terminate the 

program, I think it proper to infer authority to continue the administration of the program to the 

extent of the remaining benefit funding.

5
obligational authority sufficient to carry this power into effect. Not all 

of the President’s powers are so specifically enumerated, however, and 

the question must consequently arise, upon a government-wide lapse in 

appropriations, whether the Antideficiency Act should be construed as 

depriving the President of authority to obligate funds in connection 

with those initiatives that would otherwise fall within the President’s 

powers.

In my judgment, the Antideficiency Act should not be read as necessarily precluding exercises of executive power through which the President, acting alone or through his subordinates, could have obligated 

funds in advance of appropriations had the Antideficiency Act not been 

enacted. With respect to certain of the President’s functions, as illustrated above, such an interpretation could raise grave constitutional 

questions. It is an elementary rule that statutes should be interpreted, if 

possible, to preclude constitutional doubts, Crowell v. Benson, 285 U.S. 

22, 62 (1932), and this rule should surely be followed in connection 

with a broad and general statute, such as 31 U.S.C. § 665(a), the history 

of which indicates no congressional consideration at all of the desirability of limiting otherwise constitutional presidential initiatives. The 

President, of course, cannot legislate his own obligational authorities; 

the legislative power rests with Congress. As set forth, however, in Mr. 

Justice Jackson’s seminal concurring opinion in Youngstown Sheet &

Tube Co. v. Sawyer, 343 U.S. 579, 635 (1952):

The actual art of governing under our Constitution 

does not and cannot conform to judicial definitions of the 

power of any of its branches based on isolated clauses or 

even single Articles torn from context. While the Constitution diffuses power the better to secure liberty, it also 

contemplates that practice will integrate the dispersed 

powers into a workable government. It enjoins upon its 

branches separateness but interdependence, autonomy but 

reciprocity. Presidential powers are not fixed but fluctuate, depending on their disjunction or conjunction with 

those of Congress.

Follow ing8 this reasoning, the Antideficiency Act is not the only 

source of law or the only exercise of congressional power that must be 

weighed in determining whether the President has authority for an 

initiative that obligates funds in advance of appropriations. The President’s obligational authority may be strengthened in connection with 

initiatives that are grounded in the peculiar institutional powers and

“A majority of the Supreme Court has repeatedly given express endorsement to Mr. Justice 

Jackson’s view of the separation of powers. Nixon v. Administrator o f General Services, 433 U.S. 425, 

443 (1977); Buckley v. Valeo. 424 U.S. 1, 122 (1976); United States v. Nixon, 418 U.S. 683, 707 (1974); 

Old Dominion Branch No. 496, National Association o f Letter Carriers v. Austin, 418 U.S. 264, 273 n.5 

(1974).

6
competency of the President. His authority will be further buttressed in 

connection with any initiative that is consistent with statutes—and thus 

with the exercise of legislative power in an area of concurrent authority—that are more narrowly drawn than the Antideficiency Act and 

that would otherwise authorize the President to carry out his constitutionally assigned tasks in the manner he contemplates. In sum, with 

respect to any presidential initiative that is grounded in his constitutional role and consistent with statutes other than the Antideficiency 

Act that are relevant to the initiative, the policy objective of the 

Antideficiency Act must be considered in undertaking the initiative, but 

should not alone be regarded as dispositive of the question of authority.

Unfortunately, no catalogue is possible of those exercises of presidential power that may properly obligate funds in advance of appropriations.9 Clearly, such an exercise of power could most readily be justified if the functions to be performed would assist the President in 

fulfilling his peculiar constitutional role, and Congress has otherwise 

authorized those or similar functions to be performed within the control 

of the President.10 Other factors to be considered would be the urgency 

of the initiative and the likely extent to which funds would be obligated 

in advance of appropriations.

In sum, I construe the “authorized by law” exception contained 

within 31 U.S.C. § 665(a) as exempting from the prohibition enacted by 

the second clause of that section not only those obligations in advance 

of appropriations for which express or implied authority may be found 

in the enactments of Congress, but also those obligations necessarily 

incident to presidential intiatives undertaken within his constitutional 

powers.

II.

In addition to regulating generally obligations in advance of appropriations, the Antideficiency Act further provides, in 31 U.S.C. 

§ 665(b):

No officer or employee of the United. States shall accept 

voluntary service for the United States or employ per9 As stated by Attorney General (later Justice) Murphy:

[T]he Executive has powers not enumerated in the statutes—powers derived not from 

statutory grants but from the Constitution. It is universally recognized that the constitutional duties of the Executive carry with them constitutional powers necessary for 

their proper performance. These constitutional powers have never been specifically 

defined, and in fact cannot be, since their extent and limitations are largely dependent 

upon conditions and circumstances. In a measure this is true with respect to most of 

the powers of the Executive, both constitutional and statutory. The right to take 

specific action might not exist under one state of facts, while under another it might be 

the absolute duty of the Executive to take such action.

39 Op. A tt’y Gen. 343, 347-48 (1939).

10 One likely category into which certain of these functions would fall would be Mthe conduct of 

foreign relations essential to the national security,*’ referred to in the September 30, 1980, memorandum.

7
sonal service in excess of that authorized by law, except 

in cases of emergency involving the safety of human life 

or the protection o f property.

Despite the use of the term “voluntary service,” the evident concern 

underlying this provision is not government agencies’ acceptance of the 

benefit of services rendered without compensation. Rather, the original 

version of § 665(b) was enacted as part of an urgent deficiency appropriation act in 1884, Act of May 1, 1884, ch. 37, 23 Stat. 15, 17, in 

order to avoid claims for compensation arising from the unauthorized 

provision of services to the government by non-employees, and claims 

for additional compensation asserted by government employees performing extra services after hours. That is, under § 665(b), government 

officers and employees may not involve the government in contracts 

for employment, i.e., for compensated labor, except in emergency 

situtations. 30 Op. Att’y Gen. 129, 131 (1913).

Under § 665(b), it is thus crucial, in construing the government’s 

authority to continue functions in advance of appropriations, to interpret the phrase “emergencies involving the safety of human life or the 

protection of property.” Although the legislative history of the phrase 

sheds only dim light on its precise meaning, this history, coupled with 

an administrative history—of which Congress is fully aware—of the 

interpretation of an identical phrase in a related budgeting context, 

suggests two rules for identifying those functions for which government 

officers may employ personal services for compensation in excess of 

legal authority other than § 665(b) itself. First, there must be some 

reasonable and articulable connection between the function to be performed and the safety of human life or the protection of property. 

Second, there must be some reasonable likelihood that the safety of 

human life or the protection of property would be compromised, in 

some degree, by delay in the performance of the function in question.

As originally enacted in 1884, the provision forbade unauthorized 

employment “except in cases of sudden emergency involving the loss of 

human life or the destruction of property.” 23 Stat. 17. (Emphasis 

added.) The clause was added to the House-passed version of the 

urgent deficiency bill on the floor of the Senate in order to preserve the 

function of the government’s “life-saving stations.” One Senator cautioned:

In other words, at the life-saving stations of the United 

States, for instance, the officers in charge, no matter what 

the urgency and what the emergency might be, would be 

prevented [under the House-passed bill] from using the 

absolutely necessary aid which is extended to them in 

such cases because it had not been provided for by law in 

a statute.

8
15 Cong. Rec. 2,143 (1884) (remarks of Sen. Beck); see also id. at 3,410- 

11 (remarks of Rep. Randall). This brief discussion confirms what the 

originally enacted language itself suggests, namely, that Congress initially contemplated only a very narrow exception to what is now 

§ 665(b), to be employed only in cases of dire necessity.

In 1950, however, Congress enacted the modern version of the 

Antideficiency Act and accepted revised language for 31 U.S.C. 

§ 665(b) that had originally been suggested in a 1947 report to Congress 

by the Director of the Bureau of the Budget and the Comptrollex 

General. Without elaboration, these officials proposed that “cases of 

sudden emergency” be amended to “cases of emergency,” “loss of 

human life” to “safety of human life,” and “destruction of property” to 

“protection of property.” These changes were not qualified or explained by the report accompanying the 1947 recommendation or by 

any aspect of the legislative history of the general appropriations act 

for fiscal year 1951, which included the modern § 665(b). Act of September 6, 1950, Pub. L. No. 81-759, § 1211, 64 Stat. 765. Consequently, 

we infer from the plain import of the language of their amendments 

that the drafters intended to broaden the authority for emergency 

employment. In essence, they replaced the apparent suggestion of a 

need to show absolute necessity with a phrase more readily suggesting 

the sufficiency of a showing of reasonable necessity in connection with 

the safety of human life or the protection of property in general.

This interpretation is buttressed by the history of interpretation by 

the Bureau of the Budget and its successor, the Office of Management 

and Budget, of 31 U.S.C. § 665(e), which prohibits the apportionment 

or reapportionment of appropriated funds in a manner that would 

indicate the need for a deficiency or supplemental appropriation, except 

in, among other circumstances, “emergencies involving the safety of 

human life, [or] the protection of property.” § 665(e)(1)(B).11 Directors

11 As provisions containing the same language, enacted at the same time, and aimed at related 

purposes, the emergency provisions of §§ 665(b) and 665(e)(1)(B) should not be deemed in pan materia

and given a like construction, Northcross v. Memphis Board o f Education, 412 U.S. 427, 428 (1973), 

although at first blush, it may appear that the consequences of identifying a function as an “emergency" function may differ under the two provisions. Under § 665(b), if a function is an emergency 

function, then a federal officer or employee may employ what otherwise would constitute unauthorized personal service for its performance; in this sense, the emergency nature of the function triggers 

additional obligational authority for the government. In contrast, under § 665(e)(lXB), if a function is 

an emergency function, OMB may allow a deficiency apportionment or reapportionment—this permitting the expenditure of funds at a rate that could not be sustained for the entire fiscal year without a 

deficiency—but the effect of such administrative action would not be to trigger new obligational 

authority automatically. That is, Congress could always decline to enact a subsequent deficiency 

appropnation, thus keeping the level of spending at the previously appropriated level.)

This distinction, however, is outweighed by the common - practical effect of the tw o provisions, 

namely, that when authority is exercised under either emergency exception, Congress, in order to 

accomplish all those functions it has authorized, must appropriate more money. If, after a deficiency 

apportionment or reapportionment, Congress did not appropriate additional funds, its purposes would 

be thwarted to the extent that previously authorized functions could not be continued until the end of 

the fiscal year. This fact means that, although deficiency apportionments and reapportionments do not 

create new obligational authority, they frequently impose a necessity for further appropnations as

Continued

9
of the Bureau of the Budget and of the Office of Management and 

Budget have granted dozens of deficiency reapportionments under this 

subsection in the last 30 years, and have apparently imposed no test 

more stringent than the articulation of a reasonable relationship between the funded activity and the safety of human life or the protection 

of property. Activities for which deficiency apportionments have been 

granted on this basis include Federal Bureau of Investigation criminal 

investigations, legal services rendered by the Department of Agriculture in connection with state meat inspection programs and enforcement of the Wholesome Meat Act of 1967, 21 U.S.C. §§601-695, the 

protection and management of commodity inventories by the Commodity Credit Corporation, and the investigation of aircraft accidents by 

the National Transportation Safety Board. These few illustrations demonstrate the common sense approach that has guided the interpretation 

of § 665(e).12 Most important, under § 665(e)(2), each apportionment or 

reapportionment indicating the need for a deficiency or supplemental 

appropriation has been reported contemporaneously to both Houses of 

Congress, and, in the face of these reports, Congress has not acted in 

any way to alter the relevant 1950 wording of § 665(e)(1)(B), which is, 

in this respect, identical to § 665(b).13

It was along these lines that I approved, for purposes of the immediate crisis, the categories of functions that the Director of the 

Office of Management and Budget included in his September 30, 1980, 

memorandum, as illustrative of the areas of government activity in 

which emergencies involving the safety of human life and the proteccompelling as the government's employment of personal services in an emergency in advance of 

appropriations. There is thus no genuine reason for ascribing, as a matter of legal interpretation, 

greater or lesser scope to one emergency provision than to the other.

12 In my April 25, 1980, memorandum to you, I opined that the Antideficiency Act permits 

departments and agencies to terminate operations, upon a lapse in appropriations, in an orderly way. 

43 Op. Att'y Gen No. 24, at 1 [4 Op. O .L C .—(1980)]. The functions that, in my judgment, the 

orderly shutdown of an agency for an indefinite period or permanently would entail include the 

emergency protection, under § 665(b), of the agency's property by its own employees until such 

protection can be arranged by another agency with appropriations; compliance, within the “authorized 

by law” exception to § 665(a), with statutes providing for the rights of employees and the protection 

of government information; and (he transfer, also under the “authorized by law” exception to § 665(a), 

of any matters within the agency's jurisdiction that are also under the jurisdiction of another agency 

that Congress has funded and thus indicated its intent to pursue. Compliance with the spirit, as well as 

the letter, of the Antideficiency Act requires that agencies incur obligations for these functions in 

advance of appropriations only to the minimum extent necessary to the fulfillment of their legal duties 

and with the end in mind of terminating operations for some substantial period It would hardly be 

prudent, much less consistent with the spirit of the Antideficiency Act, for agencies to incur obligations. in advance of appropriations in connection with “shutdown functions” that would only be 

justified by a more substantia] lapse in appropriations than the agency, in its best judgment, expects.

13 The Supreme Court has referred repeatedly to thevenerable rule that the construction of a statute by those charged with its execution 

should be followed unless there are compelling indications that it is wrong, especially 

when Congress has refused to alter the administrative construction.

Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 381 (1969) (footnotes omitted). Since enacting the 

modern Antideficiency Act, including § 665(e)(1)(B), in 1950, Congress has amended the act three 

times, including one amendment to another aspect of § 665(e). At no time has Congress altered this 

interpretation of §665(eXl)(B) by the Office of Management and Budget, which has been consistent 

and is consistent with the statute. Compare 43 Op. A tt'y Gen. No. 24, 4 Op. O.L.C. 16.(1980).

10
tion of property might arise. To erect the most solid foundation for the 

Executive Branch’s practice in this regard, I would recommend that, in 

preparing contingency plans for periods of lapsed appropriations, each 

government department or agency provide for the Director of the 

Office of Management and Budget some written description, that could 

be transmitted to Congress, of what the head of the agency, assisted by 

its general counsel, considers to be the agency’s emergency functions.

In suggesting the foregoing principles to guide the interpretation of 

§ 665(b), I must add my view that, in emergency circumstances in 

which a government agency may employ personal service in excess of 

legal authority other than § 665(b), it may also, under the authority of 

§ 665(b), it may also, under the authority of § 665(b), incur obligations 

in advance of appropriations for material to enable the employees 

involved to meet the emergency successfully. In order to effectuate the 

legislative intent that underlies a statute, it is ordinarily inferred that a 

statute “carries with it all means necessary and proper to carry out 

effectively the purposes of the law.” United States v. Louisiana, 265 F. 

Supp. 703, 708 (E.D. La. 1966) (three-judge court), affd, 386 U.S. 270 

(1967). Accordingly, when a statute confers authorities generally, those 

powers and duties necessary to effectuate the statute are implied. See

2A J. Sutherland, Statutes and Statutory Construction § 55.04 (Sands 

ed. 1973). Congress has contemplated expressly, in enacting § 655(b), 

that emergencies will exist that will justify incurring obligations for 

employee compensation in advance of appropriations; it must be assumed that, when such an emergency arises, Congress would intend 

those persons so employed to be able to accomplish their emergency 

functions with success. Congress, for example, having allowed the government to hire firefighters must surely have intended that water and 

firetrucks would be available to them.14

III.

The foregoing discussion articulates the principles according to 

which, in my judgment, the Executive can properly identify those 

functions that the government may continue upon lapses in appropriations. Should a situation again present itself as extreme as the emergency that arose on October 1, 1980, this analysis should assist in 

guiding planning by all departments and agencies of the government.

As the law is now written, the Nation must rely initially for the 

efficient operation of government on the timely and responsible functioning of the legislative process. The Constitution and the

14 Accord, 53 Comp. Gen. 71 (1973), holding that, in light of a determination by the Administrator 

of General Services that such expenses were “necessarily incidental to the protection of property of 

the United States during an extreme emergency,” id. at 74, the Comptroller Genera) would not 

question General Services Administration (GSA) payments for food for GSA special police who were 

providing round-the-clock protection for a Bureau of Indian Affairs building that had been occupied 

without authority.

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Antideficiency Act itself leave the Executive leeway to perform essential functions and make the government “workable.” Any inconvenience 

that this system, in extreme circumstances, may bode is outweighed, in 

my estimation, by the salutary distribution of power that it embodies.

Respectfully,

B e n j a m in R. C i v i l e t t i

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