Class Eleven-- January 18th, 2018: The Judicial Power of the Purse | Howell E. Jackson | December 13, 2017


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Class Eleven-- January 18th, 2018: The Judicial Power of the Purse

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

In our final session, we consider the role of the judiciary in the budgetary process.  We will first discuss the role of the Judiciary in establishing its own budget.

We will then take a quick look at the To set the stage, we will take a quick look at the Supreme Court's relatively recent decision in United States v. Bormes (2012), exploring a somewhat technical issue of statutory interpretation, but one that reflects on the Court's approach to litigation presenting claims against the United States. We will then explore more generally the ability of courts to intervene in the budgetary process, including the threshold question of which parties have standing to challenge budget decisions, and the role of the “political question” doctrine. A student briefing paper on the role of the standing and political question doctrines in budget jurisprudence is included as reference. Next, we will consider the courts' authority to direct the budget decisions of state and local governments. Please read the selection from Missouri v. Jenkins (1990) (“Jenkins II”). As part of the process of court-ordered desegregation of the Kansas City, Missouri school system, a federal district court in Missouri ordered a local tax increase in order to fund the costs of desegregation. In a 5-4 decision, the Supreme Court held that the district court could not raise taxes directly, but court order to local government to do so; Justice Kennedy authored a fervent dissent that claimed that the majority's decision violated federalism and separation-of-powers principles. The desegregation saga in Kansas City went on: Five years later, the Supreme Court heard a challenge to a federal district court's order, which had directed the State of Missouri to raise teacher salaries and fund remedial programs as part of the same desegregation process (“Jenkins III”). Another 5-4 decision resulted, but this time, the Court held that courts do not have the authority to order such spending increases. The text Jenkins III is included below as background. Finally, if time permits, we may touch upon the materials included on claims regarding Social Security Benefits. (For those interested in further background on the Missouri v. Jenkin's litigation, a briefing paper on the subject is available at A separate briefing paper on Sovereign Immunity is available at


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  1. 4 Show/Hide More Missouri v. Jenkins, 495 U.S. 33 (1990) (Jenkins II), edited for Federal Budget Policy
    Original Creator: Howell E. Jackson Current Version: Howell E. Jackson
    Missouri v. Jenkins, 495 U.S. 33 (1990) (Jenkins II)
  2. 6 Show/Hide More Collection of Recent Readings on Social Security Disability
    This reading stretch back to 2004 and include a number of perspectives on social security's disability program.  There are two large themes: the first concerns the pending insolvency of the SSDI program and the second relates to improprieties in the processing of disability claims.  Both areas are subject to reform proposals discussed in these readings.

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January 17, 2018

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Howell E. Jackson

James S. Reid, Jr. Professor of Law

Harvard University

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