The Constitutionality of an Executive Spending Plan

Operation of government in the absence of appropriations has become relatively common in the United States, particularly when projected expenses exceed projected revenue, making adoption of a budget a difficult task for the legislature. This Article focuses on the budget crisis in the Commonwealth of Kentucky from 2002 through 2003. In Part I, this Article recapitulates the history of the spending plan, including the action filed in Franklin Circuit Court to affirm its constitutionality. In Part II, this Article discusses certain theoretical, historical, and legal principles that inform analysis of the plan. In Part III, it considers certain deviations and possible deviations from the general rule that the legislature controls disbursements of public funds. In Part IV, this Article discusses certain learned opinion from jurisdictions outside the Commonwealth of Kentucky that bears on the expenditure of public funds without appropriations. In Part V, it considers the issue of standing, which could inhibit judicial review of an executive spending plan. In Part VI, it discusses the issue of justiciability, which could likewise inhibit judicial review of such a plan. Finally, in Part VII, this Article evaluates some options and identifies two that the public officials of Kentucky should consider. Under the first option, the General Assembly would enact legislation authorizing disbursements from the treasury in the event of a budgetary impasse solely for essential public services, which the legislature would define with some specificity. Under the second option, the Attorney General of Kentucky would issue a formal opinion confirming that the power of the purse lies in the legislature and describing the limited exceptions to this rule that have been recognized by the courts and by officials considering analogous issues in other jurisdictions. Only by pursuing one of these two options, or an option of a similar nature, can separation of powers be adequately respected