b'Applicability of the Antideficiency Act to a Violation of a\nCondition or Internal Cap Within an Appropriation\nAny expenditure of funds in violation of a condition or internal cap in an appropriations act would\ngenerally constitute a violation of the Antideficiency Act.\n\nJanuary 19, 2001\n\nMEMORANDUM OPINION FOR THE ASSISTANT ATTORNEY GENERAL\nFOR ADMINISTRATION\nThe Constitution provides that \xe2\x80\x9c[n]o Money shall be drawn from the Treasury,\nbut in Consequence of Appropriations made by Law.\xe2\x80\x9d U.S. Const. art. I, \xc2\xa7 9, cl. 7.\nThe Antideficiency Act, codified at 31 U.S.C. \xc2\xa7\xc2\xa7 1341-1342, 1349-1351, 15111519 (1994) (\xe2\x80\x9cADA\xe2\x80\x9d), is one of several means by which Congress has sought to\nenforce this fundamental principle. See J. Gregory Sidak, The President\xe2\x80\x99s Power\nof the Purse, 1989 Duke L.J. 1162, 1234 (\xe2\x80\x9cThe statutory mechanism by which\nCongress guards its appropriations power is the Anti-Deficiency Act.\xe2\x80\x9d). The Act\xe2\x80\x99s\ncentral prohibition, set out at 31 U.S.C. \xc2\xa7 1341(a)(1), provides in relevant part:\nAn officer or employee of the United States Government or the District of Columbia government may not\xe2\x80\x94(A) make or authorize an\nexpenditure or obligation exceeding an amount available in an\nappropriation or fund for the expenditure or obligation; or (B)\ninvolve either government in a contract or obligation for the payment\nof money before an appropriation is made unless authorized by law.\nA violation of this section requires \xe2\x80\x9cappropriate administrative discipline,\xe2\x80\x9d id.\n\xc2\xa7 1349(a), including possible suspension without pay or removal from office, and,\nif the violation was knowing and willful, a fine of up to $5,000 and/or imprisonment of up to two years, id. \xc2\xa7 1350. See Office of Pers. Mgmt. v. Richmond, 496\nU.S. 414, 430 (1990) (citing sections 1341 and 1350 for the proposition that \xe2\x80\x9c[i]t is\na federal crime, punishable by fine and imprisonment, for any Government officer\nor employee to knowingly spend money in excess of that appropriated by Congress\xe2\x80\x9d); see also Hercules, Inc. v. United States, 516 U.S. 417, 427 (1996) (\xe2\x80\x9cThe\nAnti-Deficiency Act bars a federal employee or agency from entering into a\ncontract for future payment of money in advance of, or in excess of, an existing\nappropriation.\xe2\x80\x9d). In addition, violations must be reported by the head of the agency\nconcerned to the President and Congress. 31 U.S.C. \xc2\xa7 1351.\nYou have asked whether a violation of a \xe2\x80\x9ccondition\xe2\x80\x9d or \xe2\x80\x9cinternal cap\xe2\x80\x9d within an\nappropriations act would violate the Antideficiency Act. For purposes of this\nopinion, we assume that a \xe2\x80\x9ccondition\xe2\x80\x9d on an appropriation would prohibit an\nagency from expending any of its funds for a particular purpose, and that an\n\n33\n\n227-329 VOL_25_PROOF.pdf 43\n\n10/22/12 11:10 AM\n\n\x0cOpinions of the Office of Legal Counsel in Volume 25\n\n\xe2\x80\x9cinternal cap\xe2\x80\x9d would prohibit an agency from expending any of its funds in excess\nof a designated amount for a particular purpose. Your question arises in the\nspecific context of the following provision of the Department of Justice Appropriation Act, 2000, Pub. L. No. 106-113, div. B, app. A, 113 Stat. 1501A-3,\n1501A-11 (1999):\nFor salaries and expenses for the Border Patrol program, the detention and deportation program, the intelligence program, the investigations\nprogram,\nand\nthe\ninspections\nprogram . . .\n$1,107,429,000 . . . . Provided further, That none of the funds available to the Immigration and Naturalization Service [\xe2\x80\x9cINS\xe2\x80\x9d] shall be\navailable to pay any employee overtime pay in an amount in excess\nof $30,000 during the calendar year beginning January 1, 2000.\nWe understand this provision to be an internal cap, and thus to have prohibited\nthe Department of Justice from using any funds available to the INS under any\nappropriation to pay any individual employee more than $30,000 in overtime\nduring calendar year 2000. There are, of course, a variety of other ways in which\nCongress sets limits in appropriations. For example, Congress often earmarks\nfunds for specific purposes. See, e.g., Department of Transportation and Related\nAgencies Appropriations Act, 1997, Pub. L. No. 104-205, 110 Stat. 2951, 2951-52\n(1996) (appropriating \xe2\x80\x9cfor necessary expenses for conducting transportation\nplanning, research, systems development, and development activities . . .\n$3,000,000\xe2\x80\x9d). Congress also imposes ceilings within particular appropriations acts.\nSee id., 110 Stat. at 2952 (providing that \xe2\x80\x9cnone of the funds in this Act shall be\navailable for the implementation or execution of programs in excess of\n$25,900,000 for the Payments to Air Carriers program in fiscal year 1997\xe2\x80\x9d)\n(emphasis added). For purposes of this opinion, we employ a narrow definition of\n\xe2\x80\x9cconditions\xe2\x80\x9d and \xe2\x80\x9cinternal caps,\xe2\x80\x9d which does not include these other types of\nlimits, and do not address the applicability of the Antideficiency Act to these other\ntypes of limitations. 1\n1\nOur opinion, therefore, does not address situations where purpose restrictions apply to some\xe2\x80\x94but\nnot all\xe2\x80\x94funds available to an agency, or where those restrictions are not found in appropriations acts.\nNor does our opinion address whether the Department may use statutory \xe2\x80\x9creprogramming\xe2\x80\x9d or transfer\nauthority, see, e.g., Department of Justice Appropriation Act, 2000, \xc2\xa7\xc2\xa7 605, 107, 113 Stat. at 1501A-52\nto 1501A-53, 1501A-19, to avoid the limitations of a condition or internal cap, or to cure retroactively\nexpenditures that would, in the absence of a reprogramming of funds, violate the Antideficiency Act.\nWe also do not consider what the legal effect might be of after-the-fact delegations or ratifications (by\nauthorized officials) to cure obligations or expenditures made by persons acting without requisite legal\nauthority. Finally, this memorandum does not address the situation in which a condition or internal cap\nwithin an appropriations act implicates another branch\xe2\x80\x99s discharge of its constitutionally assigned\nfunctions. Cf. Memorandum for the Attorney General from Theodore B. Olson, Assistant Attorney\nGeneral, Office of Legal Counsel, Re: Application of the Independent Counsel Provisions of the Ethics\nin Government Act to Alleged Violations of the Boland Amendment and the Antideficiency Act (Apr. 27,\n\n34\n\n227-329 VOL_25_PROOF.pdf 44\n\n10/22/12 11:10 AM\n\n\x0cApplicability of ADA to Violation of Condition Within Appropriation\n\nBy its terms, the Antideficiency Act prohibits any expenditure or obligation\nexceeding an amount \xe2\x80\x9cavailable in an appropriation or fund for the expenditure or\nobligation.\xe2\x80\x9d 31 U.S.C. \xc2\xa7 1341(a)(1)(A) (emphases added). The question before us,\ntherefore, is whether, when Congress has expressly prohibited the expenditure of\nany funds for a particular purpose, or of any funds in excess of a specific amount\nappropriated for that purpose, an agency\xe2\x80\x99s expenditure of funds in violation of\nsuch a limit necessarily also \xe2\x80\x9cexceed[s] an amount available . . . for the expenditure,\xe2\x80\x9d even when there are sufficient unobligated funds otherwise available in an\nappropriation to cover the expenditure. The question whether violation of a\n\xe2\x80\x9ccondition\xe2\x80\x9d or \xe2\x80\x9cinternal cap\xe2\x80\x9d also violates the Antideficiency Act is a difficult\nissue of first impression for this Office. 2 Its importance is underscored by the\navailability of criminal felony sanctions against government officers and employees who knowingly and willfully authorize or make such expenditures. For the\nreasons set forth below, we conclude that a violation of a condition or internal cap\nwithin an appropriation would generally constitute a violation of the\nAntideficiency Act. 3\n\n1984) (\xe2\x80\x9cOlson Memorandum\xe2\x80\x9d) (alleged violation of Boland Amendment, which implicated President\xe2\x80\x99s\nforeign affairs powers, could not reasonably be construed as a federal crime under Antideficiency Act\ndue to justiciability concerns based on political question doctrine, lack of specific manageable\nstandards, and vagueness of the Amendment); Authority for the Continuance of Government Functions\nDuring a Temporary Lapse in Appropriations, 5 Op. O.L.C. 1, 5-7 (1981) (President\xe2\x80\x99s obligational\nauthority may be strengthened in connection with initiatives grounded in peculiar institutional powers\nand competency of the President; Antideficiency Act not necessarily dispositive in such circumstances); Office of Pers. Mgmt. v. Richmond, 496 U.S. 414, 435 (1990) (White, J., concurring) (noting that\nCongress may not \xe2\x80\x9cimpair the President\xe2\x80\x99s pardon power by denying him appropriations for pen and\npaper\xe2\x80\x9d); see also J. Gregory Sidak, The Recommendation Clause, 77 Geo. L.J. 2079 (1989) (arguing\nthat certain appropriations riders raise separation of powers concerns and conflict with the President\xe2\x80\x99s\nconstitutional duty to make recommendations to Congress); Kate Stith, Congress\xe2\x80\x99 Power of the Purse,\n97 Yale L.J. 1343, 1352 (1988) (noting that \xe2\x80\x9cCongress may not completely frustrate the exercise of the\nPresident\xe2\x80\x99s constitutional duties\xe2\x80\x9d).\n2\nCf. Olson Memorandum (assuming without discussion that alleged violation of Boland Amendment, which imposed a condition within an appropriation, would violate Antideficiency Act absent\nseparation of powers concerns).\n3\nThere may be circumstances in which determining the precise scope of a condition or internal cap\nraises difficult issues. Congress may, for example, enact a law in the middle of a fiscal year stating that\npreviously available funds may no longer be used for a particular, previously authorized, purpose. After\nthe effective date of such a law, previously available and unobligated funds could no longer be\nobligated for the proscribed purpose. However, a construction of such a law that would preclude, after\nthe effective date, expenditure of funds that had been obligated prior to the effective date for services\nrendered prior to the effective date could cause the government to breach certain contracts or to violate\nfederal personnel laws. These considerations, along with the general presumption that statutes should\nnot be given retroactive effect, Landgraf v. USI Film Products, 511 U.S. 244, 280 (1994), might\nreasonably justify the conclusion that such a law should be construed, if possible, not to prohibit the\npayment of such obligations. There may be other circumstances where determining the legal\navailability of funds under a condition or internal cap poses similarly difficult interpretive questions\nthat we cannot, and therefore do not, address.\n\n35\n\n227-329 VOL_25_PROOF.pdf 45\n\n10/22/12 11:10 AM\n\n\x0cOpinions of the Office of Legal Counsel in Volume 25\n\nI. Language and Structure of the Act\nAs in all cases of statutory interpretation, we begin with the language of the Act\nitself. See United States v. Ron Pair Enterprises, 489 U.S. 235, 241 (1989);\nRobinson v. Shell Oil Co., 519 U.S. 337, 340 (1997). Section 1341(a)(1) prohibits\nany \xe2\x80\x9cexpenditure or obligation exceeding an amount available in an appropriation\nor fund for the expenditure or obligation.\xe2\x80\x9d 31 U.S.C. \xc2\xa7 1341(a)(1)(A) (emphasis\nadded). The scope of the Act\xe2\x80\x99s coverage thus turns, to a significant degree, on the\nmeaning of the term \xe2\x80\x9cavailable\xe2\x80\x9d in this context. Webster\xe2\x80\x99s Third New International Dictionary defines \xe2\x80\x9cavailable\xe2\x80\x9d to mean \xe2\x80\x9cvalid\xe2\x80\x9d; \xe2\x80\x9csuch as may be availed of:\ncapable of use for the accomplishment of a purpose: immediately utilizable\xe2\x80\x9d; or\n\xe2\x80\x9cthat is accessible or may be obtained.\xe2\x80\x9d Webster\xe2\x80\x99s Third New International\nDictionary 150 (1993). Similarly, Black\xe2\x80\x99s Law Dictionary defines the term\n\xe2\x80\x9cavailable\xe2\x80\x9d to mean either \xe2\x80\x9c[s]uitable; useable; accessible; obtainable; present or\nready for immediate use,\xe2\x80\x9d or \xe2\x80\x9c[h]aving sufficient force or efficacy; effectual;\nvalid.\xe2\x80\x9d Black\xe2\x80\x99s Law Dictionary 135 (6th ed. 1990). These definitions reflect two\ndistinct concepts. To the extent the word \xe2\x80\x9cavailable\xe2\x80\x9d means \xe2\x80\x9cpresent or ready for\nimmediate use,\xe2\x80\x9d it appears to require only that funds be accessible or obtainable in\na practical sense\xe2\x80\x94i.e., unobligated. So understood, the Act would generally\nprohibit only those expenditures that exceed the total amount of funds Congress\nhas provided within a particular account\xe2\x80\x94i.e., those expenditures that result in socalled \xe2\x80\x9ccoercive deficiencies\xe2\x80\x9d because they effectively obligate Congress to\nappropriate additional funds. On the other hand, to the extent that \xe2\x80\x9cavailable\xe2\x80\x9d also\nincorporates the concept of \xe2\x80\x9cvalidity,\xe2\x80\x9d it suggests an additional requirement of\nlegal permissibility. On this reading, if Congress provides that \xe2\x80\x9cno funds made\navailable under this or any other appropriation shall be available to pay in excess\nof $30,000 for overtime,\xe2\x80\x9d only $30,000 is \xe2\x80\x9cavailable,\xe2\x80\x9d within the meaning of the\nAntideficiency Act, for that purpose. Any expenditure in excess of that sum on\novertime, accordingly, is an \xe2\x80\x9cexpenditure or obligation exceeding an amount\navailable in an appropriation,\xe2\x80\x9d regardless of whether such an expenditure would\ncause an agency or office to exceed its overall appropriation. Although the statute\nis not entirely free from ambiguity on this point, we conclude that the second\nreading better comports with the Act\xe2\x80\x99s language and structure.\nVarious arguments may be mustered from the text and structure of the statute\nand related provisions to support the view that \xe2\x80\x9cavailable\xe2\x80\x9d in the context of\nsection 1341(a)(1) simply means \xe2\x80\x9cunobligated.\xe2\x80\x9d For example, because subsection\n(a)(1)(B) sets forth a clearly temporal limitation on contracting or otherwise\nobligating federal funds\xe2\x80\x94i.e., no spending \xe2\x80\x9cbefore an appropriation is made\xe2\x80\x9d\xe2\x80\x94it\nmight be argued that the parallel proscription of subsection (a)(1)(A) should\nlikewise be understood as a temporal limitation\xe2\x80\x94i.e., no spending \xe2\x80\x9cafter funds are\nexhausted.\xe2\x80\x9d In other words, the Act reflects Congress\xe2\x80\x99s concern with preventing\nspending that creates deficiencies, rather than with enforcing restrictions on\n\n36\n\n227-329 VOL_25_PROOF.pdf 46\n\n10/22/12 11:10 AM\n\n\x0cApplicability of ADA to Violation of Condition Within Appropriation\n\nspending for particular purposes. This interpretation draws support from other\nprovisions of the Act (codified at 31 U.S.C. \xc2\xa7\xc2\xa7 1511-1519) that require federal\nagencies to apportion their funds throughout the fiscal year. Section 1512(a)\nprovides generally that, except as otherwise provided, \xe2\x80\x9can appropriation available\nfor a definite period shall be apportioned to prevent obligation or expenditure at a\nrate that would indicate a necessity for a deficiency or supplemental appropriation\nfor the period.\xe2\x80\x9d 4 The responsible agency official may make such apportionments\nby \xe2\x80\x9c(A) months, calendar quarters, operating seasons, or other time periods;\n(B) activities, functions, projects, or objects; or (C) a combination of the ways\nreferred to in clauses (A) and (B),\xe2\x80\x9d as the official considers appropriate. 31 U.S.C.\n\xc2\xa7 1512(b)(1). Section 1517(a) makes it unlawful for an officer or employee of a\nfederal agency or the District of Columbia government to \xe2\x80\x9cmake or authorize an\nexpenditure or obligation exceeding . . . an apportionment.\xe2\x80\x9d The penalties for\nviolating this prohibition are essentially identical to those mandated for violations\nof section 1341(a): reporting of violations to the President and Congress, see 31\nU.S.C. \xc2\xa7 1517(b), \xe2\x80\x9cappropriate administrative discipline, including, when\ncircumstances warrant, suspension from duty without pay or removal from office,\xe2\x80\x9d\n31 U.S.C. \xc2\xa7 1518, and, in the case of \xe2\x80\x9cknowing[] and willful[]\xe2\x80\x9d violations,\ncriminal sanctions that may include a fine of up to $5000, imprisonment for up to\ntwo years, or both, 31 U.S.C. \xc2\xa7 1519. Cf. 31 U.S.C. \xc2\xa7\xc2\xa7 1349(a), 1350, 1351. These\nprovisions highlight the degree to which Congress sought in the Antideficiency\nAct to prevent government agencies from exceeding their appropriated funds in a\ngiven fiscal year. 5\nCongress\xe2\x80\x99s obvious concern with overall deficiencies caused by expenditures in\nexcess of appropriated funds does not, however, exclude the possibility that it also\nintended through the Antideficiency Act to enforce its appropriations power by\nexercising control over the purposes for which agencies may use their appropriated funds. Indeed, there is considerable textual evidence to support a reading of the\nterm \xe2\x80\x9cavailable\xe2\x80\x9d that incorporates a \xe2\x80\x9clegal permissibility\xe2\x80\x9d component as well as\nthe basic requirement that sufficient funds be unexpended or \xe2\x80\x9cunobligated.\xe2\x80\x9d In\nsection 1341(a)(1)(A) itself, the word \xe2\x80\x9cavailable\xe2\x80\x9d is modified by the phrase \xe2\x80\x9cfor\n\n4\n\nCertain exceptions to this requirement are set out in 31 U.S.C. \xc2\xa7 1515.\nThis reading is also arguably supported by another provision in chapter 13 of title 31 (the chapter\nentitled \xe2\x80\x9cAppropriations,\xe2\x80\x9d which also includes section 1341(a)), in which Congress appears to have\nused the term \xe2\x80\x9cavailable\xe2\x80\x9d to mean simply unobligated. In section 1344(a)(1), Congress referred to\n\xe2\x80\x9cavailable\xe2\x80\x9d funds, then separately specified a limitation on the permissible use of such funds. See 31\nU.S.C. \xc2\xa7 1344(a)(1) (\xe2\x80\x9cFunds available to a Federal agency, by appropriation or otherwise, may be\nexpended . . . for the maintenance, operation, or repair of any passenger carrier only to the extent that\nsuch carrier is used to provide transportation for official purposes.\xe2\x80\x9d). Cf. Keene Corp. v. United States,\n508 U.S. 200, 208 (1993) (relying on slight differences in language in \xe2\x80\x9cnearby sections of Title 28\xe2\x80\x9d to\nconstrue the term \xe2\x80\x9cjurisdiction\xe2\x80\x9d). But see infra pp. 38-39 (discussing other uses of term \xe2\x80\x9cavailable\xe2\x80\x9d in\ntitle 31).\n5\n\n37\n\n227-329 VOL_25_PROOF.pdf 47\n\n10/22/12 11:10 AM\n\n\x0cOpinions of the Office of Legal Counsel in Volume 25\n\nthe expenditure or obligation,\xe2\x80\x9d which suggests a more restrictive intent. 6 If\nCongress had intended to address solely the problem of overall deficiency\nspending, this phrase would appear somewhat superfluous. Congress could have\nsimply prohibited any expenditure or obligation \xe2\x80\x9cexceeding an amount available in\nan appropriation.\xe2\x80\x9d The fact that Congress did not simply prohibit expenditures in\nexcess of total appropriations suggests that the term \xe2\x80\x9cavailable\xe2\x80\x9d should be\nconstrued more broadly to encompass the concept of legal permissibility. Nor does\nthe temporal focus of subsection (a)(1)(B) compel the conclusion that subsection\n(a)(1)(A) has a similarly limited focus. It is just as logical to conclude that these\nseparate prohibitions were aimed at separate problems, only one of which had a\npurely temporal dimension.\nAs noted above, Congress often uses the term \xe2\x80\x9cavailable\xe2\x80\x9d in its appropriations\nacts in a manner that clearly connotes legal permissibility. See, e.g., Pub. L. No.\n101-516, 104 Stat. 2155, 2157 (1990) (\xe2\x80\x9cnone of the funds in this or any other Act\nshall be available for the implementation or execution of programs in excess of\n$26,600 for the Payments to Air Carriers program\xe2\x80\x9d) (emphasis added). Similarly,\nCongress has used \xe2\x80\x9cavailable\xe2\x80\x9d in this sense in numerous other provisions of\nchapters 13 and 15 of title 31. Section 1343(d), for example, provides that an\nappropriation \xe2\x80\x9cis available to buy, maintain, or operate an aircraft only if the\nappropriation specifically authorizes the purchase, maintenance, or operation.\xe2\x80\x9d 31\nU.S.C. \xc2\xa7 1343(d). Section 1346 provides that \xe2\x80\x9cpublic money and appropriations\nare not available to pay\xe2\x80\x9d certain expenses related to commissions, councils,\nboards, and similar groups, but that the \xe2\x80\x9c[a]ppropriations of an executive agency\nare available for the expenses of an interagency group conducting activities of\ninterest common to executive agencies when the group includes a representative of\nthe agency.\xe2\x80\x9d Id. \xc2\xa7 1346(a), (b). Section 1348 provides that \xe2\x80\x9c[e]xcept as provided in\nthis section, appropriations are not available to install telephones in private\nresidences or for tolls or other charges for telephone service from private residences,\xe2\x80\x9d but that the \xe2\x80\x9c[a]ppropriations of an agency are available to pay charges for a\nlong-distance call if required for official business,\xe2\x80\x9d provided \xe2\x80\x9cthe head of the\nagency . . . certifies that the call is necessary in the interest of the Government.\xe2\x80\x9d\nId. \xc2\xa7 1348(a)(1), (b). In each of these statutes, Congress used the term \xe2\x80\x9cavailable\xe2\x80\x9d\nin a manner that is not dependent on whether funds are actually \xe2\x80\x9cunobligated,\xe2\x80\x9d and\nthat instead limits the permissible purposes for which funds may be spent. See also\n31 U.S.C. \xc2\xa7 1502(a) (\xe2\x80\x9cThe balance of an appropriation or fund limited for\nobligation to a definite period is available only for payment of expenses properly\nincurred during the period of availability or to complete contracts properly made\nwithin that period of availability and obligated consistent with section 1501 of this\ntitle.\xe2\x80\x9d)\n6\nSee infra pp. 39-40 (discussing changes in text made by 1982 recodification of title 31, which\nCongress did not intend to have substantive effect).\n\n38\n\n227-329 VOL_25_PROOF.pdf 48\n\n10/22/12 11:10 AM\n\n\x0cApplicability of ADA to Violation of Condition Within Appropriation\n\nAn argument can be made, however, that the current language of section\n1341(a)(1) should be read more narrowly in view of the fact that it was enacted as\npart of the 1982 general recodification of title 31, which was not intended to make\nany substantive change in the law. See H.R. Rep. No. 97-651, at 1-3 (1982),\nreprinted in 1982 U.S.C.C.A.N. 1895, 1896 (describing purpose of bill \xe2\x80\x9cto revise,\ncodify, and enact without substantive change certain general and permanent laws\nrelated to money and finance as title 31, United States Code, \xe2\x80\x98Money and\nFinance,\xe2\x80\x99\xe2\x80\x9d and to simplify language); see also Walters v. Nat\xe2\x80\x99l Ass\xe2\x80\x99n of Radiation\nSurvivors, 473 U.S. 305, 318 (1985) (when enacted without substantive comment,\nchange during codification of legislation is generally held not to have been\nintended to alter statute\xe2\x80\x99s scope); cf. Interpretation of the Grandfather Clause in\n18 U.S.C. \xc2\xa7 709\xe2\x80\x94Use of Word \xe2\x80\x9cFederal\xe2\x80\x9d in Name of Insurance Company, 1 Op.\nO.L.C. 60, 61 (1977) (\xe2\x80\x9cthe relevant law is not strictly\xe2\x80\x9d criminal statute as revised\nin 1948, but rather its predecessor). The previous version of the Antideficiency\nAct, as enacted in 1950 (the last occasion on which Congress made substantive\nchanges to this section), provided:\nNo officer or employee of the United States shall make or authorize\nan expenditure from or create or authorize an obligation under any\nappropriation or fund in excess of the amount available therein; nor\nshall any such officer or employee involve the Government in any\ncontract or other obligation, for the payment of money for any purpose, in advance of appropriations made for such purpose, unless\nsuch contract or obligation is authorized by law.\n31 U.S.C. \xc2\xa7 655(a) (1976). Notably, in the first clause of the pre-1982 statute, the\nword \xe2\x80\x9cavailable\xe2\x80\x9d is not modified by the phrase \xe2\x80\x9cfor the expenditure or obligation,\xe2\x80\x9d\nbut rather by the term \xe2\x80\x9ctherein.\xe2\x80\x9d Indeed, only the second clause, which concerns\nobligations in advance of appropriations, contains express purpose-restrictive\nlanguage. Arguably, therefore, the 1950 statute did not use the term \xe2\x80\x9cavailable\xe2\x80\x9d to\ncapture the concept of \xe2\x80\x9clegal permissibility,\xe2\x80\x9d and the language added by the 1982\nrecodification should not be read to incorporate that concept either, because the\nlegislative history of the recodification indicates only an intent to standardize and\nsimplify statutory language within the title.\nUltimately, however, we do not find this argument persuasive. Congress\xe2\x80\x99s\nstatement that the recodification worked no substantive change in the law is\nperfectly consistent with the conclusion that the language added in 1982 did\nnothing more than confirm that the word \xe2\x80\x9cavailable\xe2\x80\x9d in the Act had always\nincorporated the concept of legal permissibility. The express prohibition in the\n1950 law on obligations incurred in advance of appropriations \xe2\x80\x9cmade for such\npurpose\xe2\x80\x9d supports this view. It seems highly unlikely that Congress would have\nintended to adopt a legal-availability approach to the second clause of the 1950\n\n39\n\n227-329 VOL_25_PROOF.pdf 49\n\n10/22/12 11:10 AM\n\n\x0cOpinions of the Office of Legal Counsel in Volume 25\n\nlaw, but not to the first clause. Indeed, as we explain below, this understanding of\nthe 1950 version is consistent with the fact that, when Congress amended the law\nthat year, it deleted the phrases \xe2\x80\x9cin any one fiscal year\xe2\x80\x9d and \xe2\x80\x9cfor that fiscal year\xe2\x80\x9d\nfrom the statute, thereby broadening the statutory focus beyond an apparent\nconcern with overall deficiencies. 7\nWe have also considered whether the \xe2\x80\x9cPurpose Statute,\xe2\x80\x9d 31 U.S.C. \xc2\xa7 1301(a),\nprovides any basis for a narrowing construction of the Antideficiency Act. The\nPurpose Statute, which predates the Antideficiency Act and carries no criminal\npenalties, provides that \xe2\x80\x9c[a]ppropriations shall be applied only to the objects for\nwhich the appropriations were made except as otherwise provided by law.\xe2\x80\x9d Id.\nAlthough, as the Supreme Court has observed, \xe2\x80\x9cit is hardly a novel proposition\nthat [two statutes] \xe2\x80\x98prohibit some of the same conduct,\xe2\x80\x99\xe2\x80\x9d Herman & MacLean v.\nHuddleston, 459 U.S. 375, 383 (1983) (quoting United States v. Naftalin, 441 U.S.\n768, 778 (1979), and referring to overlap of 1933 and 1934 securities laws), a\nconstruction of one statute that renders another wholly superfluous should\ngenerally be avoided. See Jarecki v. G.D. Searle & Co., 367 U.S. 303, 307 (1961)\n(\xe2\x80\x9cIf there is a big hole in the fence for the big cat, need there be a small hole for\nthe small one?\xe2\x80\x9d). If the Purpose Statute prohibits nothing more than expenditures\nand obligations that are illegal under the Antideficiency Act, then the civil\nprohibition of the Purpose Statute would have no independent function. This is not\nthe case, however, because the Purpose Statute may be violated in circumstances\nwhere no violation of the Antideficiency Act occurs. For example, the Comptroller\nGeneral has consistently found that \xe2\x80\x9cdeliberately charging the wrong appropriation\nfor purposes of expediency or administrative convenience, with the expectation of\nrectifying the situation by a subsequent transfer from the right appropriation,\nviolates [the Purpose Statute].\xe2\x80\x9d 1 General Accounting Office, Principles of\nFederal Appropriations Law 4-4 (2d ed. 1991) (\xe2\x80\x9cFederal Appropriations Law\xe2\x80\x9d)\n(citing 36 Comp. Gen. 386 (1956); 26 Comp. Gen. 902, 906 (1947); 19 Comp.\nGen. 395 (1939); 14 Comp. Gen. 103 (1934)). In such circumstances, funds are\n\xe2\x80\x9cavailable\xe2\x80\x9d under the broader construction of that term in the Antideficiency Act,\nbecause funds are both \xe2\x80\x9con deposit\xe2\x80\x9d and may legally be obligated or expended for\nthe purpose in question; thus, although the expenditure would not run afoul of the\nbroader reading of the Antideficiency Act, it violates the Purpose Statute\xe2\x80\x99s\nrequirement that funds be \xe2\x80\x9capplied only to the objects for which the [charged]\nappropriation[] [was] made.\xe2\x80\x9d See 63 Comp. Gen. 422, 424 (1984) (\xe2\x80\x9cEven though\nan expenditure may have been charged to an improper source, the Antideficiency\nAct\xe2\x80\x99s prohibition against incurring obligations in excess or in advance of available\nappropriations is not also violated unless no other funds were available for that\nexpenditure.\xe2\x80\x9d). Although the legal interpretations of the Comptroller General are\n7\nAs discussed below, this reading of the text is consistent with interpretations of the pre-1982\nversions of the Act by the Supreme Court, the Comptroller General, and members of Congress.\n\n40\n\n227-329 VOL_25_PROOF.pdf 50\n\n10/22/12 11:10 AM\n\n\x0cApplicability of ADA to Violation of Condition Within Appropriation\n\nnot binding on the Executive Branch, see Bowsher v. Synar, 478 U.S. 714, 727-32\n(1986), we find this interpretation of the Purpose Statute persuasive. 8 Accordingly,\nbecause we find that the Purpose Statute may apply in circumstances where, even\nunder a broad reading, the Antideficiency Act would not, the existence of the\nPurpose Statute provides no basis for narrowly construing the language of the\nAntideficiency Act.\nSimilarly, we do not believe that the \xe2\x80\x9crule of lenity\xe2\x80\x9d justifies a construction of\nthe Act that equates the terms \xe2\x80\x9cavailable\xe2\x80\x9d and \xe2\x80\x9cunobligated.\xe2\x80\x9d To be sure, the\nSupreme Court has \xe2\x80\x9cinstructed that \xe2\x80\x98ambiguity concerning the ambit of criminal\nstatutes should be resolved in favor of lenity,\xe2\x80\x99 . . . and that \xe2\x80\x98when choice has to be\nmade between two readings of what conduct Congress has made a crime, it is\nappropriate, before we choose the harsher alternative, to require that Congress\nshould have spoken in language that is clear and definite.\xe2\x80\x99\xe2\x80\x9d Jones v. United States,\n529 U.S. 848, 858 (2000) (quoting Rewis v. United States, 401 U.S. 808, 812\n(1971), and United States v. Universal C.I.T. Credit Corp., 344 U.S. 218, 221-22\n(1952), respectively). The degree of ambiguity in the Antideficiency Act, however, is insufficient to warrant invocation of this rule. As the Court has explained,\n\xe2\x80\x9c[l]enity applies only when the equipoise of competing reasons cannot otherwise\nbe resolved.\xe2\x80\x9d Johnson v. United States, 120 S. Ct. 1795, 1807 n.13 (2000). Thus,\nthe rule of lenity applies \xe2\x80\x9c\xe2\x80\x98only if, after seizing everything from which aid can be\nderived, . . . we can make no more than a guess as to what Congress intended,\xe2\x80\x99\xe2\x80\x9d\nHolloway v. United States, 526 U.S. 1, 12 n.14 (1999) (quoting Muscarello v.\nUnited States, 524 U.S. 125, 138 (1999)) (additional quotations and citations\nomitted), or where \xe2\x80\x9cthere is a \xe2\x80\x98\xe2\x80\x9c\xe2\x80\x98grievous ambiguity or uncertainty\xe2\x80\x99\xe2\x80\x9d in the\nstatute,\xe2\x80\x99\xe2\x80\x9d Muscarello, 524 U.S. at 139 (quoting Staples v. United States, 511 U.S.\n600, 619 n.17 (1994) (quoting Chapman v. United States, 500 U.S. 453, 463\n(1991))). See also 3 Norman J. Singer, Sutherland on Statutes and Statutory\nConstruction \xc2\xa7 59.03 (5th ed. 1992) (\xe2\x80\x9cIn fact, it has been said that the rule of lenity\nis a tie breaker when there is an otherwise unresolved ambiguity.\xe2\x80\x9d). Although the\nlanguage of the Antideficiency Act admits of some ambiguity, there is by no\nmeans a \xe2\x80\x9cgrievous ambiguity or uncertainty in the statute,\xe2\x80\x9d nor complete equipoise\nbetween the competing interpretations we have identified. Rather, as we have\nexplained, we believe that the text of section 1341(a)(1) is best read to apply to\nviolations of conditions and internal caps within appropriations acts. Moreover,\n\xe2\x80\x9ceverything from which aid can be derived,\xe2\x80\x9d Holloway v. United States, 526 U.S.\nat 12 n.14, serves to clarify and confirm this reading, rather than requiring us to\n\xe2\x80\x9cmake no more than a guess as to what Congress intended.\xe2\x80\x9d Id. Thus, as we\n\n8\n\nFor purposes of resolving the question before us, we need not consider any other interpretations of\nthe Purpose Statute that the Comptroller General has rendered, and should not be understood generally\nto embrace the substantial body of opinions the Comptroller General has issued with respect to this\nstatute. See generally 1 Federal Appropriations Law ch. 4.\n\n41\n\n227-329 VOL_25_PROOF.pdf 51\n\n10/22/12 11:10 AM\n\n\x0cOpinions of the Office of Legal Counsel in Volume 25\n\nexplain below, the Act\xe2\x80\x99s legislative history, relevant court decisions, decisions of\nthe Comptroller General, and scholarly commentary all support our conclusion\nthat the Act applies to expenditures that violate conditions and internal caps within\nappropriations acts.\nII. History and Evolution of the Act\nOur examination of the historical record confirms our view that, except in those\ncircumstances in which an internal cap or condition would prevent another branch\nfrom discharging its constitutionally assigned functions, see supra note 1, the text\nof the Antideficiency Act is best read to prohibit an expenditure in excess of such\na condition or internal cap. See Crandon v. United States, 494 U.S. 152, 158\n(1990) (\xe2\x80\x9cIn determining the meaning of the statute, we look not only to the\nparticular statutory language, but to the design of the statute as a whole and to its\nobject and policy.\xe2\x80\x9d).\nWhat is now known as the Antideficiency Act arose during the nineteenth\ncentury from Congress\xe2\x80\x99s increasing frustration with the failure of Executive\nBranch agencies to stay within the budgets Congress allocated to them. At least as\nearly as 1809, members of Congress complained of budgetary abuses and misapplication of funds by the War and Navy departments, and in that year Congress\npassed legislation requiring that \xe2\x80\x9cthe sums appropriated by law for each branch of\nexpenditure in the several departments shall be solely applied to the objects for\nwhich they are respectively appropriated, and to no other.\xe2\x80\x9d Act of Mar. 3, 1809,\nch. 28, \xc2\xa7 1, 2 Stat. 535, 535; see also 19 Annals of Cong. 1551-55, 1560-61, 1575\n(1809). 9 In 1820, Congress enacted additional legislation providing that, with\ncertain exceptions for obtaining subsistence and clothing, \xe2\x80\x9cno contract shall\nhereafter be made by the Secretary of State, or of the Treasury, or of the Department of War, or of the Navy, except under a law authorizing the same, or under an\nappropriation adequate to its fulfilment.\xe2\x80\x9d Act of May 1, 1820, ch. 52, \xc2\xa7 6, 3 Stat.\n\n9\nThis precursor of the present-day \xe2\x80\x9cPurpose Statute\xe2\x80\x9d (31 U.S.C. \xc2\xa7 1301(a) (1994)) permitted the\nPresident to authorize a transfer of funds from one \xe2\x80\x9cbranch of expenditure\xe2\x80\x9d within a particular\ndepartment to another \xe2\x80\x9cbranch of expenditure\xe2\x80\x9d within the same department. See 2 Stat. at 235.\nCongress repealed that authority in 1868, amending the 1809 Act to provide that \xe2\x80\x9call acts or parts of\nacts authorizing such transfers of appropriations be and the same are hereby repealed, and no money\nappropriated for one purpose shall hereafter be used for any other purpose than that for which it is\nappropriated.\xe2\x80\x9d Act of Feb. 12, 1868, ch. 8, \xc2\xa7 2, 15 Stat. 35, 36. The Act was subsequently codified as\nsection 3678 of the Revised Statutes, which provided: \xe2\x80\x9cAll sums appropriated for the various branches\nof expenditure in the public service shall be applied solely to the objects for which they are respectively\nmade, and for no others.\xe2\x80\x9d Rev. Stat. \xc2\xa7 3678 (2d ed. 1878), 18 Stat. pt. 1, at 723 (repl. vol.). The current\nversion of the Purpose Statute (as recodified in 1982) provides that \xe2\x80\x9c[a]ppropriations shall be applied\nonly to the objects for which the appropriations were made except as otherwise provided by law.\xe2\x80\x9d 31\nU.S.C. \xc2\xa7 1301(a).\n\n42\n\n227-329 VOL_25_PROOF.pdf 52\n\n10/22/12 11:10 AM\n\n\x0cApplicability of ADA to Violation of Condition Within Appropriation\n\n567, 568.10 In 1868, Congress passed a statute providing that \xe2\x80\x9cno contract shall be\nentered into for the erection, repair, or furnishing of any public building, or for any\npublic improvement . . . which shall bind the government to pay a larger sum of\nmoney than the amount in the treasury appropriated for the specific purpose.\xe2\x80\x9d Act\nof July 25, 1868, ch. 233, \xc2\xa7 3, 15 Stat. 171, 177 (codified at Rev. Stat. \xc2\xa7 3733 (2d\ned. 1878), 18 Stat. pt. 1, at 736-37) (repl. vol.)) (emphasis added). The 1868 Act\nestablished criminal penalties of up to two years imprisonment and a $2000 fine\nfor \xe2\x80\x9cknowing\xe2\x80\x9d violations. Id. (codified at Rev. Stat. \xc2\xa7 5503 (2d ed. 1878), 18 Stat.\npt 1, at 1066 (repl. vol.)).11\nIn 1870, Congress again expressed its frustration with Executive Branch overspending by enacting general legislation making it unlawful \xe2\x80\x9cfor any department\nof 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\nany contract for the future payment of money in excess of such appropriations.\xe2\x80\x9d\nAct of July 12, 1870, ch. 251, \xc2\xa7 7, 16 Stat. 230, 251 (codified at Rev. Stat. \xc2\xa7 3679\n(2d ed. 1878), 18 Stat. pt. 1, at 723 (repl. vol.)). This was the original version of\nthe Antideficiency Act, which has since been amended on numerous occasions.12\nWhen asked why such legislation was needed, given that its prohibition was\nalready \xe2\x80\x9cthe law of the land,\xe2\x80\x9d the amendment\xe2\x80\x99s sponsor replied: \xe2\x80\x9cWell they do not\nadhere to it. I want to put it in here, so that it shall have force and effect on every\nappropriation.\xe2\x80\x9d Cong. Globe, 41st Cong., 2d Sess. 1553 (1870) (Remarks of Rep.\nRandall).\nDespite these legislative efforts to enforce its fiscal prerogatives, Congress\ncontinued to find itself faced with situations in which federal agencies exceeded\ntheir budgets and then presented Congress with deficiencies, which Congress felt\nobliged to pay. In 1905, Congress attempted to address this problem by amending\n\n10\nThis provision was subsequently codified as section 3732 of the Revised Statutes (2d ed. 1878),\n18 Stat. pt. 1, at 736 (repl. vol.), and exists in a somewhat different form today as 41 U.S.C. \xc2\xa7 11\n(1994).\n11\nThis criminal offense is currently codified at 18 U.S.C. \xc2\xa7 435 (1994) (\xe2\x80\x9cWhoever, being an officer\nor employee of the United States, knowingly contracts for the erection, repair, or furnishing of any\npublic building, or for any public improvement, to pay a larger amount than the specific sum\nappropriated for such purpose, shall be fined under this title or imprisoned not more than one year, or\nboth.\xe2\x80\x9d) (emphasis added); see also 41 U.S.C. \xc2\xa7 12 (1994). The 1948 Reviser\xe2\x80\x99s Note, 18 U.S.C. \xc2\xa7 435,\nstates that the applicable punishment was reduced because \xe2\x80\x9c[t]he offense described in this section\ninvolves no moral turpitude\xe2\x80\x9d and should not carry \xe2\x80\x9cthe stigma of a felony.\xe2\x80\x9d We have been unable to\nfind any discussion of the relationship between this statute and the Antideficiency Act, or any\nexplanation of the discrepancy in their criminal sanctions.\n12\nAct of Mar. 3, 1905, ch. 1484, \xc2\xa7 4, 33 Stat. 1257; Act of Feb. 27, 1906, ch. 510, \xc2\xa7 3, 34 Stat. 27,\n48; Act of Aug. 23, 1912, ch. 350, \xc2\xa7 6, 37 Stat. 360, 414; Act of Sept. 6, 1950, ch. 896, \xc2\xa7 1211, 64 Stat.\n595, 765; Act of Aug. 1, 1956, ch. 814, \xc2\xa7 3, 70 Stat. 782, 783; Pub. L. No. 85-170, \xc2\xa7 1401, 71 Stat.\n426, 440 (1957); Pub. L. No. 93-344, \xc2\xa7 1002, 88 Stat. 297, 332 (1974); Pub. L. No. 93-618, \xc2\xa7 175(a),\n88 Stat. 1978, 2011 (1975); Pub. L. No. 101-508, \xc2\xa7 13213(a), 104 Stat. 1388, 1388-621 (1990).\n\n43\n\n227-329 VOL_25_PROOF.pdf 53\n\n10/22/12 11:10 AM\n\n\x0cOpinions of the Office of Legal Counsel in Volume 25\n\nRev. Stat. \xc2\xa7 3679 in several significant ways. See Act of Mar. 3, 1905, ch. 1484,\n\xc2\xa7 4, 33 Stat. 1257. The amended Antideficiency Act provided:\nNo Department of the Government shall expend, in any one fiscal\nyear, any sum in excess of appropriations made by Congress for that\nfiscal year, or involve the Government in any contract or obligation\nfor the future payment of money in excess of such appropriations unless such contract or obligation is authorized by law. . . . Any person\nviolating any provision of this section shall be summarily removed\nfrom office and may also be punished by a fine of not less than one\nhundred dollars or by imprisonment for not less than one month.\n33 Stat. at 1257-58 (1905). The 1905 amendment also added restrictions on the\nacceptance of voluntary services and required that certain types of funds be\napportioned over the course of the fiscal year, although it permitted heads of\ndepartments to waive or modify an apportionment in particular cases. Id. The\npurpose of the new apportionment requirement was \xe2\x80\x9cto prevent undue expenditures in one portion of the year that may require deficiency or additional appropriations to complete the service of the fiscal year.\xe2\x80\x9d Id. at 1258. In introducing the\nproposed amendment, Representative Hemenway (Chairman of the Appropriations\nCommittee, which reported the bill) explained:\nI call attention to this particular limitation because we seek by it to\nprevent deficiencies in the future. . . . We give to Departments what\nwe think is ample, but they come back with a deficiency. Under the\nlaw they can make these deficiencies, and Congress can refuse to\nallow them; but after they are made it is very hard to refuse to allow\nthem. So we seek by this amendment to in some respect, at least,\ncure that abuse.\n39 Cong. Rec. 3687 (1905); see also id. at 3689-92, 3780-82 (statements of other\nmembers of Appropriations Committee expressing frustration with deficiencies\nincurred by Executive Branch and then presented to Congress).\nAlthough much of the legislative debate focused on the problem of overall\ndeficiencies, several Committee members and other representatives emphasized\nthe need to prevent Executive Branch departments from taking funds authorized\nfor one purpose and using them for another, noting that such abuses were a\nsignificant cause of deficiencies. See, e.g., 39 Cong. Rec. 3692 (statement of Rep.\nLivingston) (\xe2\x80\x9csome of the Departments of this Government have been absolutely\ntaking lump sums appropriated for a particular purpose and promoting clerks and\nofficers out of it\xe2\x80\x9d); id. at 3780 (statement of Rep. Underwood) (criticizing\ndeficiencies \xe2\x80\x9cmade by Department officers, who exceeded the law and used\nmoneys appropriated for one purpose for a different purpose than Congress\n\n44\n\n227-329 VOL_25_PROOF.pdf 54\n\n10/22/12 11:10 AM\n\n\x0cApplicability of ADA to Violation of Condition Within Appropriation\n\nintended\xe2\x80\x9d); id. at 3783 (statement of Rep. Underwood) (\xe2\x80\x9cif the officers of the\nGovernment had stayed within the law and only used their funds for the purpose\nthey should have been used for the deficiency would not have occurred\xe2\x80\x9d). There\nwas extensive discussion in the House of an incident in which a Navy official used\nfunds appropriated for the maintenance of battleships in order to install two sights\non guns for which only one sight had been authorized by Congress. See id. at 3781\n(statement of Rep. Underwood) (\xe2\x80\x9cthe money appropriated for the ordinary\nmaintenance and care of the battle ships of the country has been used for other\npurposes; I will not say illegitimate purposes, but for purposes that the Navy\nDepartment should have come to Congress and asked the authority of the Naval\nCommittee to do\xe2\x80\x9d). Another example concerned a State Department official\xe2\x80\x99s\n\xe2\x80\x9cmisapplication of the fund\xe2\x80\x9d appropriated for ordinary printing in order to print a\nbook that Congress had not authorized. Id. at 3781 (\xe2\x80\x9cMr. Littlefield. Will the\namendment which the committee have proposed . . . reach a case like this? Mr.\nUnderwood. It will.\xe2\x80\x9d). Representative Underwood, who was also a member of the\ncommittee that reported the bill, repeatedly asserted, without contradiction, that\nthe proposed bill would \xe2\x80\x9cstop\xe2\x80\x9d such abuses and \xe2\x80\x9cprevent this thing being done in\nthe future.\xe2\x80\x9d Id. at 3780, 3781; see also id. at 3691 (statement of Rep. Livingston)\n(\xe2\x80\x9cif you permit this clause to remain in this bill there will be no more expenditure\nof money without authority\xe2\x80\x9d).13 Indeed, Representative Underwood stated the goal\nof the antideficiency provision in broad constitutional terms:\nThis is only one illustration. It shows how the money that we appropriate . . . is misapplied, and it demonstrates conclusively how necessary it is for Congress to pass some legislation such as we propose in\nthis bill to check that evil and retain the power of appropriation in\nthe hands of Congress. We are getting farther and farther away from\nit every day. The great power that was intended to be exercised by\nthe legislative branch of the Government is being taken away from it\nby departmental officers creating deficiencies for purposes that are\nnot authorized under the law.\nId. at 3782.\nWithin a year, Congress again sought to strengthen its control over appropriations by amending the Act to prohibit department heads from modifying apportionments except in \xe2\x80\x9cextraordinary emergenc[ies] or unusual circumstance[s]\xe2\x80\x9d that\ncould not have been anticipated when the appropriated funds were apportioned.\nSee 34 Stat. 27, 48-49 (1906). Representative Littauer, the sponsor of the amendment, reiterated the need for the House to \xe2\x80\x9cregain its control over appropria-\n\n13\nThe primary reason identified for lack of compliance with existing law was the lack of any\npenalty for violation of the statute. See 39 Cong. Rec. at 3690, 3780, 3781.\n\n45\n\n227-329 VOL_25_PROOF.pdf 55\n\n10/22/12 11:10 AM\n\n\x0cOpinions of the Office of Legal Counsel in Volume 25\n\ntions . . . in order that the Departments may understand that such moneys, and such\nmoneys alone as we appropriate, will be at their service to carry on the work of the\nGovernment.\xe2\x80\x9d 40 Cong. Rec. 1275 (1906). Again, various members of the House\nindicated their understanding that the Act applied not just to expenditures in\nexcess of total appropriations, but rather also to expenditures inconsistent with the\nexpress terms of the appropriations. Thus, Representative Fitzgerald identified one\ncause of deficiencies as \xe2\x80\x9cofficials spending money in defiance of the action of\nCongress in refusing to appropriate money for the purpose for which they\nestimated,\xe2\x80\x9d and stated that \xe2\x80\x9c[i]t is necessary for Congress to impress upon the men\nin the administrative offices of the Government that Congress means just what it\nsays in the law, and that if these men do not comply with it they will not only be\ndismissed from the public service, but they shall be punished as this law provides.\xe2\x80\x9d\nId. at 1289-90. Similarly, Representative Burton emphasized the duty of the\npeople\xe2\x80\x99s representatives \xe2\x80\x9cto determine for what objects expenditures shall be made\nand how much shall be expended,\xe2\x80\x9d and asserted that members of Congress must\n\xe2\x80\x9cscrutinize the public expenditures and make sure that they are applied to purposes\nwhich approve themselves to our judgment and to the judgment of the people.\xe2\x80\x9d Id.\nat 1298 (emphasis added).14 A particular example of conduct the 1906 amendment\nsought to prevent was the Attorney General\xe2\x80\x99s use of the Justice Department\xe2\x80\x99s\nmiscellaneous expenditures account to commission a portrait. See id. at 1274-75;\nsee also id. at 1275 (Rep. Gaines) (\xe2\x80\x9c[T]he law should not have been evaded . . . by\ntaking public funds that were not appropriated to do this particular thing.\xe2\x80\x9d). In\nresponse to a question as to whether \xe2\x80\x9cCongress should deprive the heads of these\nDepartments of all discretion . . . and allow them to expend no money for any\npurpose except that specifically appropriated for that particular purpose,\xe2\x80\x9d Representative Brundidge responded: \xe2\x80\x9cthat is practically the law now.\xe2\x80\x9d Id. at 1276\n(noting the exception for emergencies).\nAs the foregoing history reveals, although the language of the statute at that\ntime\xe2\x80\x94which merely prohibited expenditures \xe2\x80\x9cin any one fiscal year\xe2\x80\x9d in an amount\n\xe2\x80\x9cin excess of appropriations made by Congress for that fiscal year\xe2\x80\x9d\xe2\x80\x94appeared\ndesigned primarily to prevent overall deficiencies, a number of members of\nCongress asserted (without opposition) that the 1905 and 1906 amendments would\nalso enforce Congress\xe2\x80\x99s constitutional authority to control the objects on which\nfunds were to be spent. Indeed, the remarks cited above indicate that proponents of\nthe legislation believed that unauthorized spending\xe2\x80\x94that is, spending on projects\nthat Congress had failed to authorize, or spending more money on projects than\nCongress had authorized\xe2\x80\x94was a primary cause of overall deficiencies. These\n\n14\n\nRepresentative Burton also stated with respect to the Act\xe2\x80\x99s penalty provisions that, \xe2\x80\x9cunless the\nlaw is very severe,\xe2\x80\x9d executive officers would spend funds on particular items they had recommended\nthat were rejected by Congress. \xe2\x80\x9cIt is fit and proper that by the severest penalties we should provide\nagainst that possibility.\xe2\x80\x9d Id. at 1298.\n\n46\n\n227-329 VOL_25_PROOF.pdf 56\n\n10/22/12 11:10 AM\n\n\x0cApplicability of ADA to Violation of Condition Within Appropriation\n\nproponents, therefore, presumably would not have perceived any inherent tension\nbetween the goal of barring coercive deficiencies and the goal of barring spending\nin excess of conditions or internal caps; any statutory focus on the former goal,\ntherefore, does not necessarily demonstrate that Congress did not intend to achieve\nthe latter as well.\nIn subsequent years, Congress continued to modify the Act in an attempt to rein\nin overspending by the Executive Branch and retain control of the federal fisc in\nthe hands of Congress. In 1950, Congress amended the first portion of the statute\nto read:\nSec. 3679. (a) No officer or employee of the United States shall\nmake or authorize an expenditure from or create or authorize an\nobligation under any appropriation or fund in excess of the amount\navailable therein; nor shall any such officer or employee involve the\nGovernment in any contract or other obligation, for the payment of\nmoney for any purpose, in advance of appropriations made for such\npurpose, unless such contract or obligation is authorized by law.\nPub. L. No. 81-759, 64 Stat. 595, 765.15 Notably, the 1950 amendment eliminated\nthe phrases \xe2\x80\x9cin any one fiscal year\xe2\x80\x9d and \xe2\x80\x9cfor that fiscal year,\xe2\x80\x9d thereby changing the\nfocus of the Act\xe2\x80\x99s language from overall spending to spending out of particular\nappropriations, and also introduced the term \xe2\x80\x9cavailable\xe2\x80\x9d for the first time in the\nAct\xe2\x80\x99s history. See 96 Cong. Rec. at 6835 (\xe2\x80\x9csubsection (a) would prohibit the\nmaking or authorizing of expenditures in excess of the amount available in any\nappropriation or fund\xe2\x80\x9d) (emphasis added). The legislative history provides little\nexplanation for these changes. The House Report merely noted that the existing\nstatute was \xe2\x80\x9cantiquated\xe2\x80\x9d and needed redrafting in light of the increasing complexity of the government, see H.R. Rep. No. 81-1797, at 9 (1950), while the legislative\ndebates once again focused on the problem of deficiencies. Representative Norrell,\na committee member and sponsor of the amendment, stated: \xe2\x80\x9cThe entire effort is\nto try to discourage, if not entirely eliminate, supplementals and deficiencies.\xe2\x80\x9d 96\nCong. Rec. at 6726; see also id. at 6729 (purpose of amendment is to restore\n\xe2\x80\x9cproper control over appropriations\xe2\x80\x9d to Congress) (remarks of Rep. Taber and\nRep. Wigglesworth). Yet Congress also seems to have been concerned with fiscal\n\n15\nCongress also increased the maximum penalty for \xe2\x80\x9cknowing[] and willful[]\xe2\x80\x9d violations of this\nprovision of the Act to a $5000 fine and two years imprisonment, and for all other violations required\n\xe2\x80\x9cappropriate administrative discipline, including, when circumstances warrant, suspension from duty\nwithout pay or removal from office.\xe2\x80\x9d \xc2\xa7 3679(i), 64 Stat. at 768; see also 96 Cong. Rec. 6835, 6837\n(1950) (section-by-section analysis) (amendment designed to supply \xe2\x80\x9cmore practicable penalties, which\ncan be gaged with reference to the seriousness of the offense\xe2\x80\x9d). Finally, the amended Act required\nagencies to report certain violations of the statute, and the actions taken, to the President and Congress.\n\xc2\xa7 3679(i), 64 Stat. 768.\n\n47\n\n227-329 VOL_25_PROOF.pdf 57\n\n10/22/12 11:10 AM\n\n\x0cOpinions of the Office of Legal Counsel in Volume 25\n\ncontrol in a broader sense. The House Report admonished the Executive Branch\nthat \xe2\x80\x9c[a]ppropriation of a given amount for a particular activity constitutes only a\nceiling upon the amount which should be expended for that activity.\xe2\x80\x9d H.R. Rep.\nNo. 81-1797, at 9 (emphasis added). Moreover, as noted above, Congress added\nspecific language to the second clause of the section, dealing with obligations in\nadvance of appropriations, which appears to presuppose that obligations are\nlimited to the particular purposes Congress has authorized.\nBetween 1950 and 1982, Congress made only a few minor and technical\namendments (not relevant here) to the Antideficiency Act. The Act achieved\nessentially its current form in 1982, as part of the general recodification of title 31\nof the United States Code.16 See H.R. Rep. No. 97-651, at 1 (1982), reprinted in\n1982 U.S.C.C.A.N. 1895 (describing purpose of bill \xe2\x80\x9cto revise, codify, and enact\nwithout substantive change certain general and permanent laws related to money\nand finance as title 31, United States Code, \xe2\x80\x98Money and Finance\xe2\x80\x99\xe2\x80\x9d). The new\nsection 1341(a) differed in several ways from its predecessor. In describing\nunlawful expenditures and obligations, for example, the revisers changed the\nphrase \xe2\x80\x9cunder any appropriation or fund in excess of the amount available\ntherein\xe2\x80\x9d to \xe2\x80\x9cexceeding an amount available in an appropriation or fund for the\nexpenditure or obligation.\xe2\x80\x9d 31 U.S.C. \xc2\xa7 1341(a) (emphasis added). In the second\nclause, the phrase \xe2\x80\x9cfor the payment of money for any purpose, in advance of\nappropriations made for such purpose\xe2\x80\x9d became \xe2\x80\x9cfor the payment of money before\nan appropriation is made.\xe2\x80\x9d The House Report specified, however, that the bill\nmade no substantive change in the law. See H.R. Rep. No. 97-651, at 1-3; 1982\nU.S.C.C.A.N. at 1896. Accordingly, we understand these changes simply to have\nclarified the longstanding meaning of the Act. See H.R. Rep. No. 97-651, at 1\n(\xe2\x80\x9csimple language has been substituted for awkward and obsolete terms\xe2\x80\x9d).\nAlthough the legislative history of the Antideficiency Act manifests particular\ncongressional concern with the problem of overall deficiencies, we believe that\nhistory indicates that the Act\xe2\x80\x99s proponents sought not only to prohibit government\nagencies from spending funds in excess of their total annual appropriations (i.e.,\ncreating a deficiency), but also to enforce Congress\xe2\x80\x99s control over the uses to\nwhich public funds are put. This broader view of the Act\xe2\x80\x99s goals was expressed\nwhen the Act took its modern form in 1905 and 1906, and was reinforced when\nthe 1950 amendments to the statutory language focused the Act\xe2\x80\x99s prohibition on\nexpenditures in excess of any single appropriation or fund instead of expenditures\nwithin a fiscal year. Indeed, the legislative history from 1905 on indicates a\n\n16\nIn 1990, Congress added sections 1341(a)(1)(C) and (D) in conformity with the Balanced Budget\nand Emergency Deficit Control Act of 1985. Congress also clarified that the exception allowing the\nacceptance of voluntary or personal services in time of emergencies (see 31 U.S.C. \xc2\xa7 1342 (1994)) may\nbe applied only in the face of an imminent threat to life or property. See H.R. Rep. No. 101-964, at\n1170 (1990) (Conf. Rep.), reprinted in 1990 U.S.C.C.A.N. 2374, 2875.\n\n48\n\n227-329 VOL_25_PROOF.pdf 58\n\n10/22/12 11:10 AM\n\n\x0cApplicability of ADA to Violation of Condition Within Appropriation\n\ncongressional intent to enforce the full extent of Congress\xe2\x80\x99s constitutionally\nmandated control over public spending. To be sure, in denouncing unauthorized\nspending, members typically focused only on examples that resulted in overall\ndeficiencies, such as the excess spending on naval gun sights that depleted funds\navailable for ship maintenance. But the comments of Representatives in 1905 and\n1906 and the 1950 House Report are not so limited, and reflect a desire to prohibit\nall expenditures on particular projects in excess of authorized levels. See, e.g., 39\nCong. Rec. at 3780 (Rep. Underwood criticizing use of \xe2\x80\x9cmoneys appropriated for\none purpose for a different purpose than Congress intended\xe2\x80\x9d); 40 Cong. Rec. at\n1298 (Rep. Burton emphasizing Congress\xe2\x80\x99s right \xe2\x80\x9cto determine for what objects\nexpenditures shall be made and how much shall be expended,\xe2\x80\x9d and asserting that\nCongress must ensure that public funds \xe2\x80\x9care applied to purposes which approve\nthemselves to our judgment and to the judgment of the people\xe2\x80\x9d); H.R. Rep. No.\n81-1797, at 9 (\xe2\x80\x9cAppropriation of a given amount for a particular activity constitutes . . . a ceiling upon the amount which should be expended for that activity.\xe2\x80\x9d)\n(emphasis added).\nThe legislative history thus reinforces our conclusion that the Antideficiency\nAct prohibits not only expenditures or obligations in excess of overall appropriations, but also expenditures in excess of internal caps or conditions within\nparticular appropriations acts. In our view, this reading of the Act better reflects its\nfull history and evolution, and is more consistent with its purpose. As this Office\nhas stated previously, \xe2\x80\x9c[t]he manifest purpose of the Antideficiency Act is to\ninsure that Congress will determine for what purposes the government\xe2\x80\x99s money is\nto be spent and how much for each purpose.\xe2\x80\x9d Applicability of the Antideficiency\nAct Upon a Lapse in an Agency\xe2\x80\x99s Appropriation, 4A Op. O.L.C. 16, 19-20 (1980).\nSee also Appropriation\xe2\x80\x94Construction of New York Dry Dock, 28 Op. Att\xe2\x80\x99y Gen.\n466, 466 (1910) (Secretary of the Navy may not borrow funds \xe2\x80\x9cfrom appropriations not strictly applicable\xe2\x80\x9d to meet the payments on a contract for the erection of\na dry dock where funds specifically appropriated for that purpose have been\nexhausted).\nIII. Judicial, Administrative, and Scholarly Interpretations of the Act\nOur understanding of the Act\xe2\x80\x99s prohibitions is further supported by the purposes of the Constitution\xe2\x80\x99s Appropriations Clause, the decisions of the Supreme Court\nand the Comptroller General, and the views of scholars who have addressed the\nsubject. The Antideficiency Act itself is unquestionably intended to enforce\nCongress\xe2\x80\x99s authority under the Appropriations Clause. As the Supreme Court has\nexplained, that Clause is intended \xe2\x80\x9cto assure that public funds will be spent\naccording to the letter of the difficult judgments reached by Congress as to the\ncommon good and not according to the individual favor of Government agents or\nthe individual pleas of litigants.\xe2\x80\x9d Office of Pers. Mgmt. v. Richmond, 496 U.S. at\n\n49\n\n227-329 VOL_25_PROOF.pdf 59\n\n10/22/12 11:10 AM\n\n\x0cOpinions of the Office of Legal Counsel in Volume 25\n\n428. The \xe2\x80\x9cletter of the difficult judgments reached by Congress as to the common\ngood\xe2\x80\x9d is very often reflected in the conditions and internal caps included in\nappropriations laws. Accordingly, a construction of the Antideficiency Act that\nprohibits expenditures that do not necessarily result in overall deficiencies but that\nnevertheless frustrate difficult congressional judgments about the appropriate level\nof spending on a particular purpose ensures that Congress is able to exercise its\nfull constitutional authority over public spending.\nThe Supreme Court has applied these principles on the rare occasions it has had\nto interpret any of the various versions of the Antideficiency Act. In Hooe v.\nUnited States, 218 U.S. 322 (1910), the Court held that, under the 1870 version of\nthe Act and other similar enactments, the Civil Service Commission was legally\nincapable of incurring an obligation to pay more rent for a building it occupied\nthan Congress had specifically appropriated for that purpose, and that any implied\ncontractual obligation to pay fair market rental value in excess of the appropriated\namount was a nullity. The relevant appropriations acts expressly stated that the\nsum of $4000 would be \xe2\x80\x9cin full compensation\xe2\x80\x9d for each year\xe2\x80\x99s use of the building.\nId. at 332. The Court pointed out that \xe2\x80\x9c[i]t is for Congress, proceeding under the\nConstitution, to say what amount may be drawn from the Treasury in pursuance of\nan appropriation.\xe2\x80\x9d Id. at 333. The agency could not contract for rent in excess of\nthat amount, \xe2\x80\x9cparticularly where . . . Congress had taken care to say . . . that the\nappropriation shall be in full compensation for the specific purpose named in the\nappropriation act.\xe2\x80\x9d Id.; see also Sutton v. United States, 256 U.S. 575, 580-81\n(1921) (under 1906 version of Act, Secretary of War could not obligate the\ngovernment to pay more than the $23,000 appropriated for improving a channel);\nBradley v. United States, 98 U.S. 104 (1878) (where Congress appropriated only\n$1800 for payment of third year\xe2\x80\x99s rent under a contract for annual rent of $4200,\nlessor could not recover anything beyond that amount). Because none of these\ncases involved situations in which officers or agencies drew upon other appropriated funds and made expenditures in excess of the amount (or limits) Congress had\nspecified for the purpose in question, the Court did not squarely address whether\nsuch expenditures violate the Act. In addition, the Court was applying versions of\nthe Act that did not use the term \xe2\x80\x9cavailable.\xe2\x80\x9d Nevertheless, in each case the Court\ntreated the limitation in the relevant appropriation as an internal cap, and cited the\nAct for the proposition that federal officials were legally incapable of obligating\nthe government to exceed that cap. These holdings thus appear to support our\nconclusion that, when Congress uses an internal cap or condition to limit the\namount of money that can be used for a particular purpose, only the amount of\nmoney specified in the cap or condition is \xe2\x80\x9cavailable,\xe2\x80\x9d within the meaning of the\nAntideficiency Act, for that purpose, and any expenditure in excess of that amount\nis an \xe2\x80\x9cexpenditure or obligation exceeding an amount available in an appropriation.\xe2\x80\x9d\n\n50\n\n227-329 VOL_25_PROOF.pdf 60\n\n10/22/12 11:10 AM\n\n\x0cApplicability of ADA to Violation of Condition Within Appropriation\n\nMore recently, the Federal Circuit has held that \xe2\x80\x9c[s]ection 1341(a)(1)(A) makes\nit clear that an agency may not spend more money for a program than has been\nappropriated for that program.\xe2\x80\x9d Highland Falls-Fort Montgomery Cent. Sch. Dist.\nv. United States, 48 F.3d 1166, 1171 (Fed. Cir.) (emphasis added), cert. denied,\n516 U.S. 820 (1995). On this basis, the court rejected the argument that, while\nCongress had failed to appropriate sufficient earmarked money to fund certain\nentitlements under the Impact Aid Act, Pub. L. No. 81-874, 64 Stat. 1100 (1950),\nthe Department of Education should have redirected funds from other programs in\norder to cover the shortfall, and concluded that, if the Department had transferred\nmoney from other appropriations, \xe2\x80\x9cit would have been spending more money than\nCongress had appropriated for [those] entitlements, in violation of\n\xc2\xa7 1341(a)(1)(A).\xe2\x80\x9d Id. Similarly, in Eastern Band of Cherokee Indians v. United\nStates, 16 Cl. Ct. 75 (1988), the Court of Claims held that if Congress has not\nappropriated funds for a particular purpose, it would violate the Antideficiency\nAct for officials to expend other funds for that purpose. The court denied the claim\nof the Eastern Band of Cherokee Indians that the Department of the Interior should\nhave given them increased funds for their school under a statutory provision that\nprovides for equivalent funding for schools operated by the Bureau of Indian\nAffairs, as compared with public schools. Id. at 76. At the time of the tribe\xe2\x80\x99s\nrequest, no appropriations had been made for the Set-Aside Fund from which the\npayments were required to be made by the Department\xe2\x80\x99s implementing regulations. Id. Although the tribe argued that the Department could have made payments from other accounts, the court held that such an action would violate the\nAntideficiency Act. Id. at 79. These cases are consistent with this Office\xe2\x80\x99s\nconclusion that \xe2\x80\x9cthere is no presumption that Congress has made funds available\nfor every authorized purpose in any given fiscal year.\xe2\x80\x9d Anti-Lobbying Restrictions\nApplicable to Community Services Administration Grantees, 5 Op. O.L.C. 180,\n184 (1981).17\nOne district court, however, has found that the expenditure of funds in violation\nof a prohibition within an appropriation does not violate the Antideficiency Act.\nThe case, Southern Packaging & Storage Co. v. United States, 588 F. Supp. 532\n(D.S.C. 1984), involved a \xe2\x80\x9cbuy American\xe2\x80\x9d restriction in the Department of\nDefense\xe2\x80\x99s appropriations.18 The court held that, although the Department\xe2\x80\x99s\nacquisition of food items produced in Canada from ingredients obtained from\nwithin the United States violated this restriction, it did not violate the\n17\nAs noted above, we take no position on whether earmarks of the type involved in these cases\noperate as internal caps, or whether the Department\xe2\x80\x99s transfer or reprogramming authority would, in\nsome contexts, be available to permit spending in excess of an earmark.\n18\nThe appropriation stated: \xe2\x80\x9cNo part of any appropriation contained in this Act . . . shall be available for the procurement of any article of food . . . not grown, reprocessed, reused, or produced in the\nUnited States or its possessions . . . .\xe2\x80\x9d Pub. L. No. 97-114, \xc2\xa7 723, 95 Stat. 1565, 1582 (1981) (emphasis\nadded). It thus did not bar the use of any funds for that purpose.\n\n51\n\n227-329 VOL_25_PROOF.pdf 61\n\n10/22/12 11:10 AM\n\n\x0cOpinions of the Office of Legal Counsel in Volume 25\n\nAntideficiency Act because there was \xe2\x80\x9cno evidence [that the Department]\nauthorized expenditures beyond the amount appropriated by Congress for the\nprocurement of\xe2\x80\x9d the ready-to-eat meals. Id. at 550. The court did not explain this\nholding or suggest that there was another appropriation from which the Department could obtain funding for the meals. We disagree with the court\xe2\x80\x99s apparent\nconclusion that, even though the appropriation forbade the purchase of nonAmerican food items, there remained funds \xe2\x80\x9cavailable\xe2\x80\x9d in that appropriation for\nsuch purchases within the meaning of the Antideficiency Act. The district court\xe2\x80\x99s\nunexplained decision is inconsistent with the Antideficiency Act\xe2\x80\x99s legislative\nhistory and evolution and with the rest of the (limited) caselaw. 19\nOur interpretation of the Act is also consistent with that of the Comptroller\nGeneral, including Comptroller General decisions applying the pre-1982 version\nof the Act. See, e.g., 60 Comp. Gen. 440 (1981) (incurring an obligation to pay\novertime to employees in excess of a ceiling in an agency\xe2\x80\x99s appropriation violates\nthe Antideficiency Act where no other funds are available for that purpose); 42\nComp. Gen. 272, 275 (1962) (Antideficiency Act reflects congressional intent to\nkeep departments within limits and purposes of appropriations annually provided)\n(quoted with approval in Authority to Use Funds from Fiscal Year 1990 Appropriations to Cover Shortfall from Prior Year\xe2\x80\x99s Pell Grant Program, 14 Op. O.L.C.\n68, 77 (1990)); see generally 2 Federal Appropriations Law at 6-43 to 6-45 (2d\ned. 1992).20 The Department of Defense has also adopted this interpretation of the\nAct. See Dep\xe2\x80\x99t of Defense, Dir. 7200.1, Administrative Control of Appropriations\n(May 4, 1995) (Antideficiency Act violation occurs when disbursements are made\nthat exceed statutory or regulatory limitations on amounts of an appropriation that\nmay be used for a particular purpose); Dep\xe2\x80\x99t of Defense, Accounting Manual,\nDoD 7220.9-M at 21-6 (Feb. 1988) (expenditure in excess of a statutory limitation\n\n19\nThe General Accounting Office (\xe2\x80\x9cGAO\xe2\x80\x9d), moreover, has expressly criticized the Southern\nPackaging decision. See 2 Federal Appropriations Law at 6-45 to 6-46 (2d ed. 1992) (discussing the\nSouthern Packaging decision and suggesting that, while not every unauthorized expenditure\xe2\x80\x94e.g., an\nunauthorized long-distance telephone call\xe2\x80\x94should be held to violate the Antideficiency Act, where\nCongress has expressly prohibited the use of appropriated funds for a particular expenditure, \xe2\x80\x9cit seems\nclear\xe2\x80\x9d that there are no funds \xe2\x80\x9cavailable\xe2\x80\x9d for that item). This Opinion does not address, or foreclose\nfuture consideration of, the possibility that the Act may incorporate a de minimis exception for\ninadvertent or negligible violations, such as that suggested by GAO in its discussion of the Southern\nPackaging decision, or recognized by the Comptroller General and this Office with respect to the\nPurpose Statute, 31 U.S.C. \xc2\xa7 1301(a). Cf. 64 Comp. Gen. 370, 380-81 (1985) (permitting\nnonreimbursable interagency details that have a negligible impact on the loaning agency\xe2\x80\x99s appropriations); Memorandum for Margaret C. Love, Associate Deputy Attorney General, from John O.\nMcGinnis, Deputy Assistant Attorney General, Office of Legal Counsel, Re: Deputation of Interior\nDepartment Inspector General Personnel (Apr. 11, 1990) (concluding that nonreimbursable detail\ninvolving 280 man-hours would satisfy de minimis exception to Purpose Statute).\n20\nAs we explained above, the opinions and legal interpretation of the Comptroller General and the\nGAO are not binding upon departments, agencies, or officers of the Executive Branch.\n\n52\n\n227-329 VOL_25_PROOF.pdf 62\n\n10/22/12 11:10 AM\n\n\x0cApplicability of ADA to Violation of Condition Within Appropriation\n\nthat legally limits the availability of funds constitutes a violation of the\nAntideficiency Act).\nFinally, our conclusion that a violation of a condition or an internal cap in an\nappropriation violates the Antideficiency Act is supported by the views of a\nnumber of legal scholars. As one commentator has explained, \xe2\x80\x9cthe plain terms of\nthe Act broadly codify the [constitutional] Principle of Appropriations Control,\xe2\x80\x9d a\nprinciple \xe2\x80\x9cthat is broader than the particular concern that led to its enactment.\xe2\x80\x9d See\nKate Stith, Congress\xe2\x80\x99 Power of the Purse, 97 Yale L.J. at 1374-75; id. at 1375 &\nn.157 (arguing that the Act permits the Executive to spend funds only for the\nobjects authorized by Congress, and noting Comptroller General\xe2\x80\x99s view that \xe2\x80\x9cthe\nAnti-Deficiency Act prohibits expenditure in some cases where \xe2\x80\x98coercive deficiencies\xe2\x80\x99 are not threatened\xe2\x80\x9d); see also Ralph S. Abascal & John R. Kramer,\nPresidential Impoundment Part I: Historical Genesis and Constitutional Framework, 62 Geo. L.J. 1549, 1587 (1974) (\xe2\x80\x9cThe House Appropriations Committee\nproposed [the Antideficiency Act] to end abuses that had continued for many\nyears\xe2\x80\x94the use of monies appropriated for one purpose for a different purpose and\nthe use of coercive deficiencies to obtain mid-year increases in financing.\xe2\x80\x9d). J.\nGregory Sidak, for example, has suggested that \xe2\x80\x9c[i]f Congress expressly prohibits\nthe spending of any funds to examine a particular policy, then even the expenditure of a dollar by the President to recommend the prohibited policy to Congress\nwould \xe2\x80\x98exceed[] an amount available in an appropriation\xe2\x80\x99 and thus violate the\nAntideficiency Act.\xe2\x80\x9d J. Gregory Sidak, The Recommendation Clause, 77 Geo. L.J.\nat 2101 (arguing, however, that application of the Act to appropriations riders of\nthis type would violate the Recommendation Clause). William C. Banks and Peter\nRaven-Hansen have argued that violation of an appropriation rider such as the\nBoland Amendment, which prohibited the expenditure for certain purposes of any\nfunds available to the Central Intelligence Agency and the Department of Defense,\nalso violates the Antideficiency Act.21 National Security Law and the Power of the\nPurse 139 (1994); see also Kathryn R. Sommerkamp, Commanders\xe2\x80\x99 Coins: Worth\nTheir Weight in Gold?, Army Law. 6, 13 & n.70 (Nov. 1997) (exceeding a\nlimitation in an appropriation violates the Antideficiency Act); Paul D. Hancq,\nViolations of the Antideficiency Act: Is the Army Too Quick to Find Them?, Army\nLaw. 30, 34 (July 1995) (Antideficiency Act violated when an agency exceeds an\n\xe2\x80\x9cabsolute ceiling\xe2\x80\x9d in an appropriation because there are no proper funds \xe2\x80\x9cavailable\xe2\x80\x9d for the excess).\n\n21\nSee also S. Rep. No. 100-216, at 411-12 (1987) (Iran-Contra Investigation Report) (implying that\nuse of private and foreign funds to circumvent Boland Amendment violated Antideficiency Act); Olson\nMemorandum.\n\n53\n\n227-329 VOL_25_PROOF.pdf 63\n\n10/22/12 11:10 AM\n\n\x0cOpinions of the Office of Legal Counsel in Volume 25\n\nIV. Conclusion\nIn sum, given the underlying purpose of the Antideficiency Act\xe2\x80\x94control by\nCongress of both the amount and objects of Executive Branch spending\xe2\x80\x94we\nconclude that when Congress has explicitly prohibited an agency\xe2\x80\x99s use of any\nfunds for a particular purpose by placing a condition in an appropriations act, no\nfunds are legally \xe2\x80\x9cavailable\xe2\x80\x9d for that purpose within the meaning of the Act.\nSimilarly, when Congress has expressly limited an agency\xe2\x80\x99s use of any funds in\nexcess of a particular amount for a certain purpose by means of an internal cap,\nthere remain no legally \xe2\x80\x9cavailable\xe2\x80\x9d funds for that purpose once the statutory limit\nhas been reached. Therefore, subject to the various reservations noted above, we\nconclude that any expenditure of funds in violation of a condition or internal cap\nin an appropriations act would violate the Antideficiency Act.22\nRANDOLPH D. MOSS\nAssistant Attorney General\nOffice of Legal Counsel\n\n22\nAlthough all violations of sections 1341(a) and 1342 of title 31 must be reported to Congress, see\n31 U.S.C. \xc2\xa7 1351 (1994), we offer no view as to the applicability of the criminal and civil penalties\nimposed by the Act. In contemplating the availability of any sanction, very difficult considerations,\nsuch as fair warning and desuetude, would have to be evaluated. See generally United States v. Lanier,\n520 U.S. 259, 267 (1997) (in construing a criminal statute \xe2\x80\x9cthe touchstone is whether the statute, either\nstanding alone or as construed, made it reasonably clear at the relevant time that the defendant\xe2\x80\x99s\nconduct was criminal\xe2\x80\x9d). We note that, to our knowledge, no criminal or civil penalties have been\nsought under the Act in the almost 95 years that such penalties have been available. Indeed, one\nmember of Congress stated in 1906 that there were \xe2\x80\x9cnot likely to be any\xe2\x80\x9d prosecutions under the Act,\nsuggesting that Congress should instead withhold deficiency appropriations where the Act had been\nviolated. See 40 Cong. Rec. at 1276 (1906) (Rep. Brundidge). See also Applicability of the\nAntideficiency Act Upon a Lapse in an Agency\xe2\x80\x99s Appropriation, 4A Op. O.L.C. at 20 (\xe2\x80\x9cThis Department will not undertake investigations and prosecutions of officials who, in the past, may have kept\ntheir agencies open in advance of appropriations. Because of the uncertainty among budget and\naccounting officers as to the proper interpretation of the Act and Congress\xe2\x80\x99s subsequent ratifications of\npast obligations incurred during periods of lapsed appropriations, criminal sanctions would be\ninappropriate for those actions.\xe2\x80\x9d)\n\n54\n\n227-329 VOL_25_PROOF.pdf 64\n\n10/22/12 11:10 AM\n\n\x0c'