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Fact check: What are the legal risks and likely outcomes if a CR funds agencies contrary to Senate-confirmed appropriations process?
Executive Summary
A Continuing Resolution (CR) that funds agencies in ways that bypass the Senate‑confirmed appropriations process poses substantial legal risk under the Antideficiency Act, established reprogramming limits, and longstanding congressional rules, and it is likely to prompt agency liability, GAO findings, and congressional corrective action if carried out [1] [2] [3]. While some agencies and the Office of Management and Budget (OMB) have discretion to interpret exceptions during a shutdown, using a CR to override Senate allocations or to redirect funds contrary to statutory directives is legally fraught and politically combustible, making litigation, rescission, and program disruption probable outcomes [4] [5].
1. How the Antideficiency Act Turns Procedural Disputes into Criminal and Administrative Exposure
The Antideficiency Act flatly prohibits federal employees from obligating or expending funds absent an appropriation, and violations can trigger administrative discipline, reporting requirements, and referral for potential criminal liability; recent practice notes and case examples show that agencies risk formal findings when they divert funds without express authorization [3] [1]. GAO precedent demonstrates that reprogramming funds or spending contrary to statutory limits invites adverse decisions and required corrective actions, as seen in prior findings against agencies that exceeded their authorized uses; those decisions create a predictable legal pathway for challenging an administratively driven CR that sidesteps the Senate’s role [1]. Agencies that rely on novel legal interpretations to justify redirection face retrospective audits, congressional inquiries, and potential rescission of improperly used funds under established processes [1] [2].
2. Administrative Discretion Meets Political Reality — OMB and Agency Playbook Under Scrutiny
OMB has historically exercised discretion in interpreting exceptions to Antideficiency Act restrictions during lapses and CRs, and some administrations have used this authority to keep essential operations running; however, such discretion is not a legal shield when actions contravene explicit appropriation language or Senate allocations [4] [6]. Political actors in Congress can respond by withholding subsequent appropriations, issuing letters demanding rescission, or pursuing subpoenas and IG investigations, turning administrative choices into sustained political battles that almost always increase legal exposure and operational uncertainty [5]. The practical takeaway is that administrative fiat can temporarily maintain services, but it cannot erase statutory constraints or the likelihood of retrospective enforcement and oversight [4] [2].
3. Courtrooms, GAO, and Congress — The Likely Paths of Enforcement and Relief
If a CR funds agencies contrary to Senate‑confirmed appropriations, affected parties and oversight bodies have multiple venues to challenge the action: GAO can issue legal opinions and administrative rulings, Inspectors General can open investigations, and Congress can use appropriations riders, rescission, or referrals; litigation is probable where plaintiffs show concrete legal injury from redirected funding or unauthorized program operation [1] [2]. Judicial relief is unpredictable but not unprecedented; courts have sometimes enjoined agency actions that lacked statutory authorization, and GAO decisions can compel agencies to reverse course or face binding consequences for improper obligations. The combined pressure from GAO rulings, IG reports, and potential suits creates a high-likelihood scenario of rollbacks, funding clawbacks, and reputational costs [1] [2].
4. Programmatic Fallout — Disruption, Delays, and Possible Rescission of Funds
Operationally, the immediate risk of using a CR to bypass Senate-confirmed allocations is program disruption: contracts may be frozen, grants delayed, and federal services curtailed pending resolution, as shutdown advisories and recent CR debates illustrate impacts on air traffic, food assistance, and health programs [5] [7]. Even short-term continuations under contested legal rationales can produce downstream effects, including halted procurement, uncertainty for grantees, and complicated audit trails that invite rescission or reprogramming orders from Congress. Those programmatic consequences magnify legal risk because disrupted beneficiaries and affected contractors can become plaintiffs or amplifiers for congressional action [5] [7].
5. Strategic Choices and Political Stakes — What Actors Should Expect and Consider
Stakeholders contemplating or defending a CR that alters Senate allocations should expect vigorous oversight, the likelihood of GAO or IG scrutiny, and potential litigation, and they should weigh whether temporary operational benefits justify probable legal and political costs [1] [2]. Alternative approaches include negotiating targeted emergency appropriations, narrowly tailored waivers with explicit statutory language, or sunset provisions that align with authorization statutes to reduce exposure; absent such safeguards, the most likely outcomes are corrective enforcement, legislative countermeasures, and ongoing uncertainty for affected programs [4] [6].