Federal Budget Policy | Howell E. Jackson | January 08, 2015

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Federal Budget Policy

Original Creator: Howell E. Jackson Current Version: Howell E. Jackson Show/Hide

Federal Budget Policy

Professor Howell E. Jackson


Harvard Law School


Spring 2014

Class Meeting Times:


First Eight Weeks of Semester: Thursday and Fridays, 10:15 am to 11:45 am (except for 3/14 & 3/27)


Last Four Weeks of Semester: Thursdays and Fridays: 9:50 am to 11:50 am


Room: Griswold 110


Office Hours: Thursdays, 1:00 pm to 3:00 pm (or by appointment)


Contact Information:


Howell E. Jackson (hjackson@law.harvard.edu),Griswold 510


Assistant: Carole Mason (camason@law.harvard.edu),Griswold 5 South



Introduction


The goal of this course is to introduce students to federal budget policy in the United States with an emphasis on both legal structures and inter-disciplinary perspectives. The semester will begin with an overview of the history of budget for the federal government and an introduction to the components of the current federal budget. We will then examine in some detail congressional budget procedures, where the most elaborate and prominent system of budgetary procedures have been developed, albeit a system of rules that is honored as often in breach as in observance. We will next take up the Executive power of the purse in a variety of contexts, including government shutdowns and debt ceiling crisis, as well as Judicial power of the purse, including its interaction with the doctrine of Sovereign Immunity. Having worked through the budgeting powers of the three branches of the federal government, we will next take up entitlement reform, accounting standards for government bodies, selected topics associated with budgeting in a federal system, and finally state budget practices. In addition to its substantive coverage, the course is designed to introduce students to principal sources of information on federal budgeting and leading academic perspectives on budget policy. Students will also be expected to do their own original research on current issues in federal budget policy.


During the first eight weeks of the semester, the course will meet for fourteen 90 minutes sessions during which we will work through the substantive topics outlined above. For the final four weeks of the semester, the course will meet for eight 120 minutes sessions during which students will present preliminary drafts of their research papers. A list of potential research topics are listed at the back of this syllabus. Students will be asked to choose amongst these research topics or suggest their own topics subject to Professor Jackson’s approval. In most cases, students will be encouraged to work on their research papers in pairs, although again individual assignments are possible with permission of the instructor. Course grades will be based on research papers and class participation. There will be no examination for the course.


Readings for the course will consist of a combination of distributed materials, postings on the course iSite, and readings from FISCAL CHALLENGES: AN INTERDISCIPLINARY APPROACH TO BUDGET POLICY (2008) (Elizabeth Garrett, et al. eds.), and ALLEN SCHICK: THE FEDERAL BUDGET: POLITICS, POLICY AND PROCESS (3rd ed. 2007). Both books are recommended for the course and should be available at the Harvard Coop. Copies should also be on reserve for the course in Langdell Library. Additional readings are available via the H2O distribution system, which is linked to the course iSite under Course materials. From time to time, students will also be asked to review selections from the Harvard Law School Briefing Papers on Federal Budget Policy (avail. at http://www.law.harvard.edu/faculty/hjackson/budget.php). These briefing papers are primarily the work of HLS students enrolled in earlier version of this course, and are illustrative of the kinds of research papers that students in this year’s course will be expected to produce.

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  1. 3 Show/Hide More Part I. Introduction to Federal Budget Process and Policy
    Original Creator: Howell E. Jackson Current Version: Howell E. Jackson

    For our first few classes, we will introduce the topic of the federal budget, exploring a recent controversy over FEMA spending, looking into the basic components of the current federal budget, and reviewing the historical evolution of federal budgeting.


    As you read through these materials, consider how you would distinguish a good budget process from a bad one. What functions to you think a budget process should serve? What is the role of legal requirements in shaping budgeting for the government? To what extent should legal requirements constrain current political imperatives?

    1. 3.1 Show/Hide More Class One -- Thursday, January 30th
      Original Creator: Howell E. Jackson Current Version: Howell E. Jackson
      For our initial class, please review the materials on FEMA Recoupment and then look over the CBO Update from May 2013. You should also skim the version of the U.S. Constitution, which has been edited town to highlight the provisions related to fiscal policy.
      1. 3.1.1 Show/Hide More Dispute Over FEMA Recoupment
        Original Creator: Howell E. Jackson Current Version: Howell E. Jackson
        Read over materials on FEMA Recoupment . What was Senator Pryor upset with FEMA's practices with respect to the recoupment of overpayments? What does the Office of Inspector General conclude in its report? Should agencies like FEMA have more latitude to forgive debts?
    2. 3.2 Show/Hide More Class Two -- Friday, January 31st
      Original Creator: Howell E. Jackson Current Version: Howell E. Jackson
      This class is an introduction to the evolution of budgeting in the United States. The principal reading is from Chapter Two of Allen Schick, The Federal Budget: Politics, Policy, Process (3rd ed., 2007), but you should also read over several contemporaneous treatments of budget policy in the post-World War II era, emphasizing the evolution from traditional budgeting circa 1964 (described in the excerpt from Aaron Widavsky's classic work) through the Seven-Year Budget War that followed (chronicled in the Allen Schick excerpt and epitomized by Train v. City of New York, 420 U.S. 35 (1975)). You need only skim the excerpts from the 1958 Congressional Digest.
    1. 4.1 Show/Hide More Class Three -- Thursday, February 6th
      Original Creator: Howell E. Jackson Current Version: Howell E. Jackson
      In this class, we will begin our discussion of Congressional budgeting procedures. For an overview of the subject, please read Chapter One of Fiscal Challenges: William, Dauster, The Congressional Budget Process. As part of our discussion, we will focus our attention on the The Gramm-Rudman-Hollings Act, which is explored in Kate Stith, Our Fiscal Constitution, 76 Cal. L. Rev. 593 (1988), and also the subject of the Supreme Court's Decision in Bowshar v. Synar, 478 U.S. 714 (1986). As you review these materials, consider how you would evaluate the Gramm-Rudman-Hollings Act as a matter of public policy. Why did the Supreme Court find aspects of the legislation to be unconstitutional?
    2. 4.2 Show/Hide More Class Four -- Friday, February 7th
      Original Creator: Howell E. Jackson Current Version: Howell E. Jackson
      In today's class, we will turn our attention to the economics of federal deficits and debt. For an introduction to the subject, read over Fiscal Challenges: Chapter Five: Michael J. Boskin, Economic Perspectives on Federal Deficits and Debt, and then review Schick, The Federal Budget: Chapter Three, The Budget's Shifting Boundaries; Chapter Four, Budgetary Arithmetic. Please also review one of the allocated briefing papers for today's class.
    3. 4.3 Show/Hide More Class Five/Six -- Thursday-Friday, February 13th-14th
      Original Creator: Howell E. Jackson Current Version: Howell E. Jackson
      Note: The materials originally assigned for Thursday's class were actually discussed over the course of both Thursday and Friday.
    4. 4.4 Show/Hide More Class Seven -- Thursday, February 20th
      Original Creator: Howell E. Jackson Current Version: Howell E. Jackson
      Today we will conclude our discussion of Congressional budget procedures and take up the “Starve the Beast” strategy explored in Fiscal Challenges: Chapter Seven: Jonathan Baron & Edward McCaffery, Starving the Beast. You should also look over the allocated briefing papers, as assigned.
      1. 4.4.1 Show/Hide More Allocated Briefing Papers for Thursday, February 20th
        Our primary focus in this class will be on the Starve the Beast Chapter, but you should also look over the allocated briefing papers, as assigned.
    1. 5.1 Show/Hide More Class Eight -- Friday, February 21st
      Original Creator: Howell E. Jackson Current Version: Howell E. Jackson
      In today's class, we will turn out attention to Presidential Spending Powers. For an overview of the mechanics of Executive powers, see Schick, The Federal Budget: Chapter Ten: Managing Federal Expenditures. In class we will focus our attention of a debate between Professors Stith and Sidak over the power of the purse. We will also dig into the specific example of executive spending during government shutdowns, as explored in Puja Seam & Brad Shron, “Government Shutdowns” (May 4, 2005) (Briefing Paper No. 10), which all class participants should read.
    2. 5.2 Show/Hide More Class Nine -- Thursday, February 27th
      Original Creator: Howell E. Jackson Current Version: Howell E. Jackson
      In today's class, we will continue our discussion of Presidential spending powers, starting first with the topic of line item vetos, which came before the Supreme Court in Clinton v. City of New York 524 U.S. 417 (1998). We will then review the topic of reprogramming, which was touched upon in Chapter Ten of Schick, The Federal Budget, and is explored in more detail in Takeshi Fujitani & Jared Shirck, “Executive Spending Powers: The Capacity to Reprogram, Rescind, and Impound” (May 3, 2005) (Briefing Paper No. 8). Additional perspectives on Executive spending powers are presented in the allocated briefing papers for today's class.
    3. 5.3 Show/Hide More Class Ten-- Friday, February 28th
      Original Creator: Howell E. Jackson Current Version: Howell E. Jackson
      Today we will take up debt ceiling, starting first with Michael W. McConnell, The Origins of the Fiscal Constitution & Howell E. Jackson, The 2011 Debt Ceiling Crisis Revisited, from Is U.S. Government Debt Different (2012). You should also read over Jeremy Kreisberg & Kelley O'Mara, The 2011 Debt Limit Impasse: Treasury's Actions & The Counterfactual – What Might have Happened if the National Debt Hit the Satutory Limit (September 4, 2012) (Briefing Paper No. 41)
  2. 6 Show/Hide More Part IV. Judicial Power of the Purse
    Original Creator: Howell E. Jackson Current Version: Howell E. Jackson
    Content to come.
    1. 6.1 Show/Hide More Classes Eleven and Twelve -- March 6th and 7th
      Original Creator: Howell E. Jackson Current Version: Howell E. Jackson
      In the course of these two classes, we will explore the judicial power of the purse. Our primary focus in this classes will be on a series of Supreme Court cases involving litigation against or on behalf of the government. In each case, we will explore the manner in which the Court approached monetary claims involving the government. Several briefing papers related to judicial powers in this area are also allocated to members of the seminar.
  3. 7 Show/Hide More Part V. Entitlement Reform and Government Accounting
    Original Creator: Howell E. Jackson Current Version: Howell E. Jackson
    In this section of the course we will take up entitlement reform and the closely related topic of government accounting.
    1. 7.1 Show/Hide More Class Thirteen -- March 13, 2014
      Original Creator: Howell E. Jackson Current Version: Howell E. Jackson
      With today's class, we will turn our attention to entitlement reform and related topics. We will begin our discussion with two Supreme Court cases involving Social Security. The first upholding the program's constitutionality and the second dealing with Congress's authority to make benefit changes. We will then discuss Chapter 13 of Fiscal Challenges, in which John Harrison explores New Property, Entrenchment and the Fiscal Constitution. If time permits, we may also delve into a September 2013 CBO report on long-term budget projections.
    2. 7.2 Show/Hide More Class Fourteen -- March 28, 2014
      Original Creator: Howell E. Jackson Current Version: Howell E. Jackson
      In today's class we turn our attention to accounting issues, with an emphasis on the accounting treatment of entitlement programs. As an introduction to this subject, please read over Chapter Six from Fiscal Challenges: Counting the Ways: The Structure of Federal Spending. This chapter makes reference to the Financial Report of the United States. After you have read the chapter, take a look at the the FY2013 Financial Report and consider how the government's positions with respect to major entitlement programs have evolved over the past few years. (Make sure you look at the Statements of Social Insurance, starting on page 47, and accompanying notes. Entitlement programs are also addressed in the introductory materials and Management's Discussion and Analysis.) Also included in today's assignment are two briefing papers: one on accrual accounting and the Federal Credit Reform Act of 1990 and a second on the 1967 President's Commission on Budget Concept. Based on your own interests, you should choose one of these briefing papers to read before class.
    1. 8.1 Show/Hide More Class Fifteen -- Thursday, April 3rd
      Original Creator: Howell E. Jackson Current Version: Howell E. Jackson
      In addition to carryover materials from last Friday's class, we will be discussing two chapters from Fiscal Challenges in class on Thursday, April 3rd: Chapter Eleven, John Wallis and Barry Weingast, Dysfunctional or Optimal Institutions? & Chapter Twelve, David Super, Federal-State Budgetary Interactions. Please also review Briefing Paper 7 on Unfunded Mandates.
    2. 8.2 Show/Hide More Class Sixteen -- Friday, April 4th
      Original Creator: Howell E. Jackson Current Version: Howell E. Jackson
      Our focus in today's class will be on conditional spending. Please begin by reviewing either Daniel Klaff & Adam Lawton, Conditional Spending and Other Forms of Federal Cost Sharing (Updated March 2008) (Briefing Paper No. 18) or Allison Quick, Legal Limits on Conditional Spending Including Recent Challenges to No Child Left Behind (May 2, 2006) (Briefing Paper No. 19). We will then discuss South Dakota v. Dole, 483 U.S. 203 (1987), which the Quick paper discusses, and then the Supreme Court's more recent decision in National Federation of Independent Business v. Sebelius, 132 S.Ct. 2566 (2012). In the Sebelius decision, please your attention on the portions of the opinion dealing with conditional spending (as opposed to the sections involving the Commerce Clause or taxing powers or the Anti-Injunctions Act). Note: If you click on the “Show/Hide” button, and select “Hide All Unlayered,” the H20 program should display only the sections of the decision relevant to our discussions.
    3. 8.3 Show/Hide More Class Seventeen -- Thursday, April 10th
      Original Creator: Howell E. Jackson Current Version: Howell E. Jackson
      In today's class, we will be discussing budgeting at the state level. Please review Fiscal Challenges: Chapter Eight, Juliet Musso et al., Budgetary Arrangements in the 50 States & Chapter Fourteen, Richard Briffault, Courts, Constitutions and Public Finance.
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January 08, 2015

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Howell E. Jackson

James S. Reid, Jr. Professor of Law

Harvard University

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