President Biden’s first budget, transmitted to Congress about a month ago, was met with now de rigueur dismissal that greets all recent presidential budgets. Sen. Lindsey Graham (R-S.C.), ranking member of the Senate Budget Committee, declared the budget “dead on arrival — just like all other presidential budgets.” Disregarding the administration’s budget proposal has become an American political tradition, even when the president sends it to a friendly Congress.
To be sure, as a mechanism for influencing federal spending, presidential budgets are, at best, anchoring devices for negotiations with congressional leaders, who themselves hold the power to pass appropriation bills. Thus, a second and more conventional way of thinking about the budget is that it signals the administration’s priorities. And third, as Professor Eloise Pasachoff explained in a law review article, the president’s budget is a powerful tool for administrative control over the executive branch.
There was historically, however, a fourth significant role for the president’s budget that has vanished from public discourse: to serve as the primary source for formulating the President’s Annual Legislative Program (“PALP”). From the presidency of Franklin Roosevelt until recently, the Office of Management and Budget’s (“OMB”) Legislative Reference Division was responsible for formulating the PALP — a series of draft legislative proposals transmitted to Congress on an annual basis. OMB primarily looked to the president’s budget as the source of ideas for legislative proposals, though State of the Union addresses, and other presidential statements were also helpful sources of authority.
Far less famous than the veto power under the Presentment Clause, the Constitution’s Recommendation Clause vests the president with the authority (and some argue a duty) to propose legislation to Congress. As Justice Joseph Story explained in his famous 1833 “Commentaries on the Constitution of the United States,” “There is great wisdom . . . in not merely allowing, but in requiring, the president to lay before congress all facts and information, which may assist their deliberations; and in enabling him at once to point out the evil, and to suggest the remedy.”
From a good government perspective, a particular benefit of using the president’s budget process for gleaning legislative proposals is that in formulating the budget, the first step is for each executive branch agency to submit its draft budget to OMB. This provides a means for programmatic experts within agencies to signal their legislative needs to the White House. In the past, once the president’s budget was finalized, OMB would draw up outlines for a series of legislative proposals and then work with the agencies to draft the full legislative drafts that would be transmitted to Congress.
For much of the 21st century, Congress welcomed the PALP’s arrival. In 1953, when President Eisenhower was late in producing the PALP, a House committee chair said, “Don’t expect us to start from scratch on what you people want. That’s not the way we do things here — you draft the bills, and we work them over.”
The PALP, however, became less central to OMB’s core mission during the George W. Bush administration, and was ended during the Obama administration. In a forthcoming law review article, I explain that the primary reason for the PALP’s decline was congressional polarization and the political vulnerability that a president faces from articulating a draft legislative proposal on a controversial topic.
Yet the Biden budget may be gesturing toward a return to past practice. The historically high spending levels in the 2022 request are based on the fact that the president’s marquee legislative proposals – the American Jobs Plan ($2.6 trillion) and the American Families Plan ($1.7 trillion) – are incorporated into the budget. In addition, within the three-page Budget Message of the President, Biden calls on Congress to establish the Advanced Research Projects Agency for Health, a new agency modeled on the Defense Advanced Research Projects Agency (known as DARPA) that will focus on solving health crises like cancer, diabetes and Alzheimer’s and proposes $6.5 billion to fund the agency.
Biden, who served in leadership roles in Congress for decades and who was on the receiving end of many legislative proposals from the White House, has already shown that he is taking a different tack from his recent predecessors by transmitting full draft legislative proposals to the Hill. The administration has also restored OMB’s lapsed function of coordinating interagency review of draft executive orders. Time will tell whether the administration will take the further step of charging OMB with systematically developing draft legislative proposals that incorporate input from agency experts.
Christian I. Bale J.D. is a former OMB career official who served in the Legislative Reference Division, the National Security Division and the Office of General Counsel. Follow him on Twitter @ChristianIBale.