This week, Jon Endean (Brooklyn) reviews a new work by Joel Michaels (Columbia), The Bowsher Presidency, 140 Harv. L. Rev. __ (forthcoming 2027).
The second Trump administration has revealed an ability of the executive branch to simply ignore directives from Congress regarding spending and appropriations that it finds inconvenient. However, while the Trump administration may be more aggressive in subverting congressional directives, it is not the first administration to do that. Moreover, as Joel Michaels shows in his article, The Bowsher Presidency, the ability of the executive to get away with these actions can be partially attributed to the Supreme Court’s 1986 decision, Bowsher v. Synar.
In 1985, Congress passed a statute (known colloquially as Gramm-Rudman) that would introduce automatic budget cuts (known as sequestration) if specified deficit targets were not met. The problem for Congress was a question of who would determine the extent of the deficit. Because this deficit was determined prospectively and took into account macroeconomic conditions, the Office of Management and Budget (OMB, an executive agency) and the Congressional Budget Office (CBO, an arm of Congress) produced different results. Since deferring to one estimate would either defeat the purpose of sequestration (CBO) or give too much deference to a political arm of the President (OMB), Congress outsourced the determination under the statute to the Comptroller General, who is the head of the Government Accountability Office, or GAO, and is appointed for a fifteen-year term and removable only by impeachment or joint resolution of Congress.
In 1986, lawmakers failed to enact laws that would address the deficits, triggering sequestration. Various parties (including the Reagan administration) challenged the constitutionality of Gramm-Rudman, arguing that outsourcing the deficit determination to the Comptroller General was an unconstitutional violation of the separation of powers. In the resulting case, Bowsher v. Synar, the Supreme Court struck down that portion of the law 7–2, holding that by placing execution of the law in the hands of one subservient to Congress (i.e., the Comptroller General), Congress had intruded into the executive function, thereby violating the separation of powers principle inherent in the Constitution, as the Court had recently held in INS v. Chadha.
From this background, Michaels traces how this decision, which imposed a constraint on the tools that Congress has at its disposal to check the power of the executive, serves to weaken the ability of Congress to constrain the executive branch in implementing legislation. While the specific problem in Gramm-Rudman was ultimately fixed by introducing PAYGO, the ability of Congress to exercise direct control over how money is spent, accounted for, or disbursed within the executive branch once a program is authorized in legislation has been severely hampered.
One of the most obvious recent examples of this is the Judgment Fund, an appropriation authorized by Congress to pay settlements resulting from litigation threatened or filed against the United States. This was, of course, the legal source of the infamous $1.776 billion weaponization fund proposed by Donald Trump. It was Bowsher that caused Congress to remove the GAO from its role in certifying disbursements from the Judgment Fund and place authority over such certification solely in the hands of the executive branch. The lack of accountability over a fund that, in theory, is a limitless source of appropriations had the predictable result of abuse. (Whether that abuse first occurred with the Trump administration or with prior uses of the Judgment Fund is a matter of dispute, but does not obscure Michaels’s broader point.) While pressure from Congress ultimately led the Trump administration to abandon the project, Michaels’s broader point remains: The possibility of such abuse would likely not have existed but for the Court’s decision in Bowsher.
The strength of Michaels’s argument comes in identifying how the power of the purse—the quintessential Article I power if there ever was one—is nonetheless subject to a complex web of decision-making that cannot easily be codified in a statute. Many decisions are contingent, and while Congress can and does express its collective desire as to how those contingencies should be resolved, the Bowsher decision has severely limited the tools to retain its control over how the power of the purse is operationalized—particularly by an executive whose interests diverge from those of the enacting Congress. While Bowsher is surely not the only reason for this, at the very least Michaels makes a strong case that Bowsher served as an accelerant for the trend in shifting power to the executive branch.
Additionally, Michaels brings his own expertise and background from Treasury to bear in the paper in two ways. First, he can fluently speak to the technical details of how obscure things like accounting can have a profound impact on how policy is implemented. Second, part of the article is based on his interviews with individuals from both the executive branch and legislative branch. The particular strength of this is that he is able to explain how the Bowsher ruling has resulted in deference to the executive branch’s accounting determinations. This is dry and seemingly inconsequential, but as Michaels demonstrates, it is a considerable source of power that has been moved from Congress to the executive branch.
There is a broader point here that focusing on Bowsher perhaps obscures. Namely, the nature of modern legislation often is such that the actual implementation of the legislation’s purpose is contingent on events that are unknown to the enacting Congress. But rather than being an opportunity for ongoing dialogue between the executive branch and Congress over how existing laws ought to be adapted to present realities, the President has all of the authority. Moreover, because Congress’s ability to act unilaterally can only occur with veto-proof majorities in both houses, its ability to respond to executive malfeasance with superseding legislation is quite limited. (And one of the major tools Congress had long used to get around this problem—the legislative veto—was declared unconstitutional in INS v. Chadha.) This is not a particularly new observation, of course, so the value of Michaels’s piece is in demonstrating the role that Bowsher played, at least when it comes to the appropriations power.
Nonetheless, there are two ways in which the paper might be strengthened. First, this problem is not unique to the appropriations power, and it might be helpful to understand whether Bowsher has created the dynamics making this possible in other areas, or whether there are companion trends that have driven the shift in power from Congress to the executive. To pick an obvious example while staying within the power of the purse, Congress has, on several occasions, drafted broad language that authorizes the President to impose tariffs. While many of those statutes have been subject to litigation (and, in one case, led to the high-profile defeat in Learning Resources), the common trend in the statutes cited by the President is that a core Article I power (the taxing power) has been delegated by statute to the executive branch in a way that gives the President considerable latitude in determining whether or not the statutory prerequisites have been met—with almost no ability for Congress to easily respond if the use of the statute has been abused.
Second, it would be helpful to get an understanding of how Congress might respond to this reality. One option might be to push the Court (or a future Court—presumably one that has had significant turnover) to move away from the formalist view that undergirded both the Bowsher and Chadha decisions regarding separation of powers. This seems unlikely in the short run, and even in the long run, few Presidents of either party are likely to appoint justices they suspect will be skeptical of executive power. But absent a radical shift in the Court’s jurisprudence or a constitutional amendment, what options does Congress have?
It is certainly the case that the Court’s jurisprudence—including in Bowsher—has created a situation where the ability of Congress to exercise its core Article I powers has been severely limited. But they nonetheless remain firmly Article I powers, and as the Learning Resources decision demonstrated, that still matters. Accordingly, the task that remains for future work building off of Michaels’s paper is to figure out, in the medium term at least, how Congress might think creatively about ensuring its Article I powers remain firmly under congressional control.
Here is the rest of this week’s SSRN tax roundup:
Anil Arya (Ohio St., Fisher Coll. Bus.), Tyler Atanasov (Purdue, Daniels Sch. Bus.), Brian Mittendorf (Ohio St., Fisher Coll. Bus.) & Dae-Hee Yoon (Yonsei U., Sch. Bus.), Consumer Tax Incentives for Prosocial Products and Supply Chain Coordination (Oct. 10, 2026)
Richard Barnes (Washington St., Dep’t Acct.), A Claim Without a Cure: Due Process and the Section 30D Third-Party Reporting Condition (Oct. 12, 2026)
Richard Barnes (Washington St., Dep’t Acct.), Filed on Delivery: The IRS’s Unauthorized Pre-Filing Screening Regime (Sep. 11, 2026)
Richard Barnes (Washington St., Dep’t Acct.), Two Clocks, One Roof: The Statutory Mismatch Between Section 25D’s Expenditure Test and Section 48’s Placed-in-Service Standard for Residential Solar (Jan. 14, 2026)
Joshua D. Blank (UC Irvine) & Leigh Osofsky (UNC), Agency Legal Explainers in the Age of AI, 79 Admin. L. Rev. __ (forthcoming 2027)
Travis Chow (U. Hong Kong, Bus. Sch.), Yanju Liu (Hong Kong Baptist U., Dep’t Acct., Econ. & Fin.), Ricky Xu Yao (U. Hong Kong, Bus. Sch.) & Le Zhao (Nankai U., Bus. Sch.), Does Public Tax Compliance Recognition Crowd Out Corporate Philanthropy? (Oct. 12, 2026)
Joachim Englisch (U. Münster), Unanimity Workaround “Incidental” Tax Provisions: Opportunities and Pitfalls, 35 E.C. Tax Rev. 244 (2026)
Jeffrey L. Hoopes (UNC, Acct.), What Do Tax Experts Think About California’s Billionaire Tax? (Oct. 14, 2026)
Thomas Kourouxous (U. Graz, Dep’t Acct. & Tax’n) & Stefanie Pendl (Vienna U. Econ. & Bus.), Delegation, Incentives, and the Interplay Between Internal and External Tax Expertise (Oct. 9, 2026)
Jeremy Lee (Oklahoma, Steed Sch. Acct.), Real Effects of Tax Receivable Agreements (Oct. 5, 2026)
Jeremy Lee (Oklahoma, Steed Sch. Acct.), Online Appendix to Real Effects of Tax Receivable Agreements (Oct. 5, 2026)
Tyler Menzer (TCU, Neeley Bus. Sch.), Andrew Belnap (Texas, McCombs Sch. Bus.) & Kyle Pomerleau (AEI), Political Costs and Taxes: Evidence from a Survey and Field Experiment (Oct. 9, 2026)
Orli Oren-Kolbinger (Oregon), Constructive Taxation: How Filing Requirements Turn Tax Benefits into De Facto Taxes, 21 FIU L. Rev. 77 (2026)
Sina Rahiminejad (Wichita St., Sch. Acct.) & Mark Anderson (U. Calgary, Haskayne Sch. Bus.), The Accounting Discretion: GAAP Versus IRS Treatment of Deferred Tax Accounting Items (Feb. 14, 2026)
Mansi S. Rai (N.Y. St. Dep’t Tax’n & Fin.), Foreign Related-Party Debt, U.S. Blockers, and the State Tax Consequences of Characterization (Oct. 1, 2026)
Pierpaolo Rossi-Maccanico (Euro. Comm’n, Legal Serv.), Should the CJEU Refine Its Standard of State Aid Review of VAT Exemptions?, 123 Tax Notes Int’l 1577 (Sep. 7, 2026)
Angel Shaji (VIT-AP U.) & Bensha C. Shaji (VIT-AP U.), The Evidentiary Role of Transfer Pricing Documentation in Determining the Centre of Main Interests in Cross-Border Insolvency (Oct. 12, 2026)
Edward A. Zelinsky (Cardozo), Why New York’s Pied-à-Terre Tax Is Unconstitutional, 122 Tax Notes St. 29 (Oct. 5, 2026)
