FY2020 Defense Appropriations Act: P.L. 116-93 (H.R. 2968, S. 2474, H.R. 1158)

Summary: The FY2020 Defense Appropriations Act, enacted as Division A of H.R. 1158 , the Consolidated Appropriations Act for FY2020, provides a total of $687.8 billion in discretionary budget authority, all to fund activities of the Department of Defense (DOD), except for $1.1 billion for certain activities of the intelligence community.

Summary: As enacted, the bill provides 99.6% of the funding requested by President Trump requested for programs falling within the scope of this bill.

Summary: To comply with the FY2020 cap on DOD base budget funding that was in effect at the time the FY2020 budget request was submitted, the Administration included in its request $97.9 billion intended for DOD base budget activities, but which was designated as part of the Overseas Contingency Operations (OCO) request and thus was exempt from the cap for all practical purposes. The Appropriations Committees of the House and Senate treated these funds as part of the base budget request.

Summary: Activities funded by the annual defense appropriations act accounted for more than 90% of the budget authority included in the Trump Administration's $761.8 billion budget request for national defense-related activities in FY2020. The balance of the request consisted of activities funded by other appropriations bills (e.g., DOD's military construction program and defense-related nuclear energy work of the Energy Department) and certain amounts appropriated automatically as a result of permanent law.

This report provides an overview of the FY2020 Defense Appropriations Act ( P.L. 116-93 ) and serves as an access portal to other CRS products providing additional context, detail, and analysis relevant to particular aspects of that legislation.

The following Overview tracks the legislative history of the FY2020 defense appropriations act and summarizes the budgetary and strategic context within which it was being debated. Subsequent sections of the report summarize the act's treatment of major components of the Trump Administration's budget request, including selected weapons acquisition programs and other provisions.

For FY2020, the Trump Administration requested a total of $750.0 billion in discretionary budget authority for national defense-related activities. This included $718.3 billion (95.8% of the total) for the military activities of the Department of Defense (DOD). The balance of the national defense budget request is for defense-related activities of the Energy Department and other agencies.

Of the amount requested for DOD, $689.5 billion fell within the scope of the annual defense appropriations bill, as did $1.1 billion for certain expenses of the intelligence community. This bill does not include funding for military construction and family housing, which is provided by the appropriations bill that funds those activities, the Department of Veterans Affairs, and certain other agencies. Also not included in the FY2020 defense bill is $7.8 billion in accrual payments to fund the TRICARE for Life program of medical insurance for military retirees, funding for which is appropriated automatically each year, as a matter of permanent law (10 U.S.C. 1111-1117). (See Figure 1 .)

The FY2020 Defense Appropriations Act, enacted as Division A of H.R. 1158 , the Consolidated Appropriations Act for FY2020, provides a total of $687.8 billion for DOD, which is $2.86 billion less than President Trump requested for FY 2020. (See Table 1 .)

Base Budget, OCO, and Emergency Spending

Since the terrorist attacks of September 11, 2001, DOD has organized its budget requests in various ways to designate funding for activities that either are related to the aftermath of those attacks or otherwise are distinct from regularly recurring costs to man, train, and equip U.S. armed forces for the long haul. The latter are funds that have come to be referred to as DOD's "base budget." Since 2009, the non-base budget funds have been designated as funding for Overseas Contingency Operations (OCO).

Since enactment of the Budget Control Act (BCA) of 2011 ( P.L. 112-25 ), which set binding annual caps on defense and non-defense discretionary spending, the OCO designation has taken on additional significance. Spending designated by the President and Congress as OCO or for emergency requirements (such as the storm damage remediation funds in the enacted FY2020 defense bill) is effectively exempt from the spending caps.

Under the law in effect when the FY2020 budget was submitted to Congress, the defense spending cap for FY2020 was $576.2 billion. The Administration's FY2020 budget request for defense-related programs included that amount for the base budget plus an additional $97.9 billion that also was intended to fund base budget activities but which was designated as OCO funding, in order to avoid exceeding the statutory defense spending cap.

The Armed Services and Appropriations Committees of both the Senate and the House treated the "OCO for base" funds as part of the base budget request. The issue became moot with the enactment on August 2, 2019 of the Bipartisan Budget Act of 2019 ( P.L. 116-37 ) which raised the defense spending cap for FY2020 to $666.5 billion.

Separate versions of the FY2020 defense appropriations bill were reported by the Appropriations Committees of the House and Senate. After the House committee reported its version ( H.R. 2968 ), the text of that bill was incorporated into H.R. 2740 , which the House passed on June 19, 2019, by a vote of 226-203. The Senate committee reported its version of the bill ( S. 2474 ) on September 12, 2019, but the Senate took no action on that measure. A compromise version of the defense bill was agreed by House and Senate negotiators and then was incorporated by amendment into another bill ( H.R. 1158 ), which was passed by both chambers. (See Table 2 .)

In the absence of a formal conference report on the bill, House Appropriations Committee Chairman Nita Lowey inserted in the Congressional Record an Explanatory Statement to accompany the enacted version of H.R. 1158 .

The President's FY2020 budget request for DOD reflects a shift in strategic emphasis based on the 2018 National Defense Strategy (NDS), which called for "increased and sustained investment" to counter evolving threats from China and Russia. This marks a change from the focus of U.S. national security policy for nearly the past three decades and a renewed emphasis on competition between nuclear-armed powers, which had been the cornerstone of U.S. strategy for more than four decades after the end of World War II.

During the Cold War, U.S. national security policy and the design of the U.S. military establishment were focused on the strategic competition with the Union of Soviet Socialist Republics and on containing the spread of communism globally. In the years following the collapse of the Soviet Union, U.S. policies were designed â and U.S. forces were trained and equipped â largely with an eye on dealing with potential regional aggressors such as Iraq, Iran, and North Korea and recalibrating relations with China and Russia.

After the terrorist attacks of September 11, 2001, U.S. national security policy and DOD planning focused largely on countering terrorism and insurgencies in the Middle East while containing, if not reversing, North Korean and Iranian nuclear weapons programs. However, as a legacy of the Cold War, U.S. and allied military forces had overwhelming military superiority over these adversaries and, accordingly, counter-terrorism and counterinsurgency operations were conducted in relatively permissive environments.

The 2014 Russian invasion of the Crimean peninsula and subsequent proxy war in eastern Ukraine fostered a renewed concern in the United States and in Europe about an aggressive and revanchist regime in Moscow. Meanwhile, China began building and militarizing islands in the South China Sea in order to lay claim to key shipping lanes and to reinforce its claims to sovereignty over the South China Sea, itself. Together, these events highlighted anew the salience in the U.S. national security agenda of competing with other great powers , that is, states able and willing to use military force unilaterally to accomplish their objectives. At the same time, the challenges that had surfaced at the end of the Cold War (e.g., fragile states, genocide, terrorism, and nuclear proliferation) remained serious threats to U.S. interests.

In some cases, adversaries appear to be collaborating to achieve shared or compatible objectives and to take advantage of social and economic tools to advance their agendas. Some states are also collaborating with non-state proxies (including, but not limited to, militias, criminal networks, corporations, and hackers) and deliberately blurring the lines between conventional and irregular conflict and between civilian and military activities. In this complex security environment, conceptualizing, prioritizing, and managing these numerous problems, arguably, is more difficult than it was in eras past.

The Trump Administration's December 2017 National Security Strategy (NSS) and the 11-page unclassified summary of the January 2018 National Defense Strategy (NDS) explicitly reorient U.S. national security strategy (including defense strategy) toward a primary focus on great power competition with China and Russia and on countering their military capabilities.

In addition to explicitly making great power competition the primary U.S. national security concern, the NDS also argues for a focus on bolstering the competitive advantage of U.S. forces, which, the document contends, has eroded in recent decades vis-Ã -vis the Chinese and Russian threats. The NDS also maintains that, contrary to what was the case for most of the years since the end of the Cold War, U.S. forces now must assume that their ability to approach military objectives will be vigorously contested.

The Trump Administration's strategic orientation, as laid out in the NSS and NDS is consistent with the strategy outlined in comparable documents issued by prior Administrations, in identifying five significant external threats to U.S. interests: China, Russia, North Korea, Iran, and terrorist groups with global reach. In a break from previous Administrations, however, the NDS views retaining the U.S. strategic competitive edge relative to China and Russia as a higher priority than countering violent extremist organizations. Accordingly, the new orientation for U.S. strategy is sometimes referred to a "2+3" strategy, meaning a strategy for countering two primary challenges (China and Russia) and three additional challenges (North Korea, Iran, and terrorist groups).

In the more than four decades since the end of U.S. military involvement in Vietnam, annual outlays by the federal government have increased by a factor of nine. The fastest growing segment of federal spending during that period has been mandatory spending for entitlement programs such as Social Security, Medicare, and Medicaid. (See Figure 2 .)

Over the past decade, a central consideration in congressional budgeting was the Budget Control Act of 2011 (BCA; P.L. 112-25 ) as amended, which was intended to control federal spending by enforcement through sequestration of government operating budgets in case discretionary spending budgets failed to meet separate caps on defense and nondefense discretionary budget authority.

The act established binding annual limits (or caps) to reduce discretionary federal spending through FY2021 by $1.0 trillion. Sequestration provides for the automatic cancellation of previous appropriations, to reduce discretionary spending to the BCA cap for the year in question.

The caps on defense-related spending apply to discretionary funding for DOD and for defense-related activities by other agencies, comprising the national defense budget function which is designated budget function 050 . The caps do not apply to funding designated by Congress and the president as emergency spending or spending on OCO.

Congress repeatedly has enacted legislation to raise the annual spending caps. However, at the time the Administration submitted its budget request for FY2020, the national defense spending cap for that year remained $576 billion â a level enacted in 2013 that was $71 billion lower than the revised cap for FY2019.

To avert a nearly 11% reduction in defense spending, the Administration's FY2020 base budget request conformed to the then-binding defense cap. But the Administration's FY2020 request also included $165 billion designated as OCO funding (and thus exempt from the cap) of which $98 billion was intended for base budget purposes. The Armed Services and Appropriations Committees of the House and Senate disregarded this tactic, and considered all funding for base budget purposes as part of the base budget request.

P.L. 116-93 funds the Administration's proposal for a relatively modest net increase in the number of active-duty military personnel in all four armed forces, but includes a reduction of 7,500 in the end-strength of the Army. According to Army budget documents, the reduction was based on the fact that the service had not met higher end-strength goals in FY2018.

The act also funds the proposed reduction in the end-strength of the Selected Reserve â those members of the military reserve components and the National Guard who are organized into operational units that routinely drill, usually on a monthly basis. (See Table 3 )

As was authorized by the FY2020 National Defense Authorization Act ( P.L. 116-92 ), P.L. 116-93 funds a 3.1% increase in military basic pay that took effect on January 1, 2020.

The act appropriates $61.7 million for DOD's Sexual Assault Prevention and Response Office (SAPRO), adding to the amount requested $35.0 million for the Special Victims' Counsel (SVC) program . The SVC organization provides independent legal counsel in the military justice system to alleged victims of sexual assault.

The act also provides $3.0 million (not requested) to fund a pilot program for treatment of military personnel for Post-Traumatic Stress Disorder related to sexual trauma. The program was authorized by Section 702 of the FY2019 National Defense Authorization Act ( P.L. 115-232 ).

P.L. 116-93 added a total of $110 million to the $1.1 billion requested for DOD's childcare program. This is the largest employer-sponsored childcare program in the United States, with roughly 23,000 employees attending to nearly 200,000 children of uniformed service members and DOD civilians.

The act and its accompanying explanatory statement let stand a requirement in the Senate Appropriations Committee report on S. 2474 for the Secretary of Defense to give Congress a detailed report on DOD's childcare system including plans to increase its capacity and a prioritized list of the top 50 childcare center construction requirements.

P.L. 116-93 generally supports the Administration's FY2020 budget request to continue the across-the-board modernization of nuclear and other long-range strike weapons started by the Obama Administration. The Trump Administration's FY2020 budget documentation described as DOD's "number one priority" this modernization of the so-called nuclear triad: ballistic missile-launching submarines, long-range bombers, and land-based intercontinental ballistic missiles (ICBMs).

P.L. 116-93 generally supported the Administration's effort to develop an array of long-range missiles that could travel at hypersonic speed â that is, upwards of five times the speed of sound (3,800 mph) â and that would be sufficiently accurate to strike distant targets with conventional (non-nuclear) warheads. Although ballistic missiles travel as fast, the types of weapons being developed under the "hypersonic" label differ in that they can maneuver throughout most of their flight trajectory.

DOD has funded development of hypersonic weapons since the early 2000s. However, partly because of reports that China and Russia are developing such weapons, DOD identified hypersonic weapons as an R&D priority in its FY2019 budget request and is seeking â and securing from Congress â funding to accelerate the U.S. hypersonic program. The FY2020 DOD budget request continued this trend, and Congress supported it in the enacted FY2020 defense appropriations bill.

P.L. 116-93 also provided more than three times the amount requested to develop defenses against hypersonic missiles. Such weapons are difficult to detect and track because of the low altitude at which they fly and are difficult to intercept because of their combination of speed and maneuverability.

The act also added $100 million, not requested, to create a Joint Hypersonics Transition Office to coordinate hypersonic R&D programs across DOD. In the Explanatory Statement accompanying the enacted FY2020 defense bill, House and Senate negotiators expressed a concern that the rapid growth in funding for hypersonic weapons development might result in duplication of effort among the services and increased costs.

In general, P.L. 116-93 supported the Administration's proposals to strengthen defenses against ballistic missile attacks, whether by ICBMs aimed at U.S. territory, or missiles of shorter range aimed at U.S. forces stationed abroad, or at the territory of allied countries. The missile defense budget request reflected recommendations of the Administration's Missile Defense Review , published in January 2019. (See Table 6 )

Compared with the Administration's budget request, P.L. 116-93 shifted several hundred million dollars among various components of the system intended to defend U.S. territory against ICBMs. In the explanatory statement accompanying the bill, House and Senate negotiators indicated that the impetus for these changes was DOD's August 2019 cancellation of an effort to develop an improved warhead -- designated the Replacement Kill Vehicle (RKV) -- to be carried by the system's Ground-Based Interceptors (GBIs).

Partly by reallocating funds that had been requested for the RKV programs, the act provides a total of $515.0 million to develop an improved interceptor missile that would replace the GBI and its currently deployed kill vehicle. It also provides:

$285 million for additional GBI missiles and support equipment; and $180 million for R&D intended to improve the reliability GBIs.

P.L. 116-93 was generally supportive of the Administration's funding requests for acquisition of military space satellites and satellite launches. (See Table 7 .)

Congress approved $40.0 million of the $72.4 million requested for operation of the newly created Space Force, authorized by P.L. 116-92 , the FY2020 National Defense Authorization Act. The Explanatory Statement accompanying the bill asserted that DOD had provided insufficient justification for the Space Force budget request. Therefore, DOD received nearly 44% less in Space Force operating funds than it requested. The Explanatory Statement also directed the Secretary of the Air Force to give the congressional defense committees a month-by-month spending plan for FY2020 Space Force O&M funding.

The act supported major elements of the Army's plan to upgrade its currently deployed fleet of ground-combat vehicles. One departure from that plan was the act's provision of 30% more than was requested to increase the firepower of the Stryker wheeled troop-carrier. The program would replace that vehicle's .50 caliber machine gun â effective against personnel â with a 30 mm cannon that could be effective against lightly armored vehicles. (See Table 8 .)

The act sends a mixed message regarding congressional support for the Army's strategy for developing a new suite of combat capabilities. The service plans to pay for the new programs â in part -- with funds it anticipated in future budgets that were slated to pay for continuation of upgrade programs for existing systems. Under the Army's new plan, those older programs would be truncated to free up the anticipated funds. In effect, this means that planned upgrades to legacy systems would not occur so investments in development of new systems could be made sooner. The Army has proposed that programs to upgrade Bradley fighting vehicles and CH-47 Chinook helicopters be among those utilized as these "bill-payers". The enacted bill provides one-third less than was requested for Bradley upgrades, with the $223.0 million that was cut being labelled by the Explanatory Statement as "excess to need." However, the enacted version of the appropriations bill â like the versions of that bill passed by the House and Senate â provides nearly triple the amount requested for the Chinook upgrade, appropriating $46.2 million rather than the $18.2 million requested. The amount appropriated is the amount that had been planned for the Chinook upgrade in FY2020, prior to the publication of the Army's new modernization plan. In the reports accompanying their respective versions of the bill, the House and Senate Appropriations Committees each had challenged the Army's plan to forego upgrades to the existing CH-47 fleet.

Optionally Manned Fighting Vehicle (OMFV)

P.L. 116-93 reined in the Army's third effort in 20 years to develop a replacement for the 1980s-vintage Bradley infantry fighting vehicle, providing $205.6 million of the $378.4 million requested for the Optionally-Manned Fighting Vehicle (OMFV) program. The program had come under fire on grounds that it was too technologically ambitious to be managed under a streamlined acquisition process (Section 804 authority), as the Army proposed.

The issue became moot after P.L. 116-93 was enacted, when the Army announced on January 16, 2020, that it was cancelling the OMFV contracting plan and restarting it with new design parameters.

P.L. 116-93 generally supports the budget request for the major aviation programs of all four armed forces. (See Table 9 )

An indicator of potential future disagreements between Congress and the Army was the act's insistence that a planned upgrade of the service's CH-47 Chinook helicopter continue as had been planned prior to submission of the FY2020 budget request. As discussed above, this is one of several programs to improve currently deployed equipment that the Army wants to curtail in order to free up funds in future budgets for the wide-ranging modernization strategy it announced in late 2019.

Prior to tagging the program as a "bill-payer" for new programs, the Army had projected a FY2020 request of $46.4 million associated with procurement of improved "Block II" CH-47s. The amended FY2020 request for the program was $18.2 million, reflecting the Army's decision to truncate the planned procurement. The enacted version of the FY2020 defense bill â like the versions passed by the House and approved by the Senate Appropriations Committee â provided $46.2 million for the program.

The act provides $985.5 million of the $1.05 billion requested for eight F-15s to partly fill the gap in Air Force fighter strength resulting from later-than-planned fielding of the F-35A Joint Strike Fighter. The act shifted funds for two of the eight aircraft and some design efforts (a total of $364.4 million) to the Air Force's Research and Development account on grounds that those F-15s would be used for testing.

The Explanatory Statement accompanying the act directs the Secretary of the Air Force to provide the House and Senate Armed Services and Appropriations Committees with a review of options for reducing the Air Force's shortfall in its planned complement of fighters.

P.L. 116-93 supports major elements of the Navy's shipbuilding budget request. The request in turn reflects a 2016 plan to increase the size of the fleet to 355 ships, a target some 15% higher than the force goal set by the previous Navy plan. The request included â and the act generally supports â funds to begin construction of a number of relatively large, unmanned surface and subsurface ships that carry weapons and sensors and would further enlarge the force.

The act departed from the budget request on two issues that involved more than $1 billion apiece:

It denied a total of $3.2 billion budgeted for one of the three Virginia -class submarines included in the Administration's request, adding $1.4 billion of those funds instead to the funds requested (and approved by the act) for the other two subs. The increase is intended to pay for incorporating into the two funded ships the so-called Virginia Payload Module -- an 84-foot-long, mid-body section equipped with four large-diameter, vertical launch tubes for storing and launching additional Tomahawk missiles or other payloads. It provided a total of $1.2 billion, not requested, for specialized ships and a landing craft to support amphibious landings by Marine Corps units. (See Table 10 .)

Notes: The Appendix lists the full citation of each CRS product cited in this table by its ID number.

Appendix. CRS Reports, In Focus, and Insights

Following, in numerical order, are the full citations of CRS products cited in this report.

CRS Report RS20643, Navy Ford (CVN-78) Class Aircraft Carrier Program: Background and Issues for Congress , by Ronald O'Rourke.

CRS Report RL30563, F-35 Joint Strike Fighter (JSF) Program , by Jeremiah Gertler.

CRS Report RL30624, Navy F/A-18E/F and EA-18G Aircraft Program , by Jeremiah Gertler.

CRS Report RL31384, V-22 Osprey Tilt-Rotor Aircraft Program , by Jeremiah Gertler.

CRS Report RL32109, Navy DDG-51 and DDG-1000 Destroyer Programs: Background and Issues for Congress , by Ronald O'Rourke.

CRS Report RL32418, Navy Virginia (SSN-774) Class Attack Submarine Procurement: Background and Issues for Congress , by Ronald O'Rourke.

CRS Report RL32665, Navy Force Structure and Shipbuilding Plans: Background and Issues for Congress , by Ronald O'Rourke.

CRS Report RL33640, U.S. Strategic Nuclear Forces: Background, Developments, and Issues , by Amy F. Woolf.

CRS Report R41129, Navy Columbia (SSBN-826) Class Ballistic Missile Submarine Program: Background and Issues for Congress , by Ronald O'Rourke.

CRS Report R42972, Sequestration as a Budget Enforcement Process: Frequently Asked Questions , by Megan S. Lynch.

CRS Report R43049, U.S. Air Force Bomber Sustainment and Modernization: Background and Issues for Congress , by Jeremiah Gertler.

CRS Report R43240, The Army's Armored Multi-Purpose Vehicle (AMPV): Background and Issues for Congress , by Andrew Feickert.

CRS Report R43838, Renewed Great Power Competition: Implications for DefenseâIssues for Congress , by Ronald O'Rourke.

CRS Report R43543, Navy LPD-17 Flight II and LHA Amphibious Ship Programs: Background and Issues for Congress , by Ronald O'Rourke.

CRS Report R43546, Navy John Lewis (TAO-205) Class Oiler Shipbuilding Program: Background and Issues for Congress , by Ronald O'Rourke.

CRS Report R44039, The Defense Budget and the Budget Control Act: Frequently Asked Questions , by Brendan W. McGarry.

CRS Report R44229, The Army's M-1 Abrams, M-2/M-3 Bradley, and M-1126 Stryker: Background and Issues for Congress , by Andrew Feickert.

CRS Report R44463, Air Force B-21 Raider Long-Range Strike Bomber , by Jeremiah Gertler.

CRS Report R44519, Overseas Contingency Operations Funding: Background and Status , by Brendan W. McGarry and Emily M. Morgenstern.

CRS Report R44874, The Budget Control Act: Frequently Asked Questions , by Grant A. Driessen and Megan S. Lynch.

CRS Report R44891, U.S. Role in the World: Background and Issues for Congress , by Ronald O'Rourke and Michael Moodie.

CRS Report R44968, Infantry Brigade Combat Team (IBCT) Mobility, Reconnaissance, and Firepower Programs , by Andrew Feickert.

CRS Report R44972, Navy Frigate (FFG[X]) Program: Background and Issues for Congress , by Ronald O'Rourke.

CRS Report R45288, Military Child Development Program: Background and Issues , by Kristy N. Kamarck.

CRS Report R45349, The 2018 National Defense Strategy: Fact Sheet , by Kathleen J. McInnis.

CRS Report R45519, The Army's Optionally Manned Fighting Vehicle (OMFV) Program: Background and Issues for Congress , by Andrew Feickert.

CRS Report R45811, Hypersonic Weapons: Background and Issues for Congress , by Kelley M. Sayler.

CRS Report R46002, Military Funding for Border Barriers: Catalogue of Interagency Decisionmaking , by Christopher T. Mann and Sofia Plagakis.

CRS Report R46107, FY2020 National Defense Authorization Act: Selected Military Personnel Issues , coordinated by Bryce H. P. Mendez.

CRS Report R46211, National Security Space Launch , by Stephen M. McCall.

CRS Report R46216, The Army's Modernization Strategy: Congressional Oversight Considerations , by Andrew Feickert and Brendan W. McGarry.

CRS In Focus IF10541, Defense Primer: Ballistic Missile Defense , by Stephen M. McCall.

CRS In Focus IF10657, Budgetary Effects of the BCA as Amended: The "Parity Principle" , by Grant A. Driessen.

CRS In Focus IF11244, FY2020 National Security Space Budget Request: An Overview , by Stephen M. McCall and Brendan W. McGarry.

CRS In Focus IF11326, Military Space Reform: FY2020 NDAA Legislative Proposals , by Stephen M. McCall.

CRS Insight IN11052, The Defense Department and 10 U.S.C. 284: Legislative Origins and Funding Questions , by Liana W. Rosen.

CRS Insight IN11083, FY2020 Defense Budget Request: An Overview , by Brendan W. McGarry and Christopher T. Mann.

CRS Insight IN11148, The Bipartisan Budget Act of 2019: Changes to the BCA and Debt Limit , by Grant A. Driessen and Megan S. Lynch.

CRS Insight IN11210, Possible Use of FY2020 Defense Funds for Border Barrier Construction: Context and Questions , by Christopher T. Mann.


Long-Term Budgeting within the Congressional Budget Process: In Brief

Summary: Members of Congress, the Administration, and outside groups have expressed concern over long-term projections of deficits and debt levels. The Congressional Budget Office (CBO) has stated that federal deficits and debt held by the public, which are higher than average, are projected to increase sharply over the next 30 years.

Summary: Some have argued that the current congressional budget process has created, or at least exacerbated, the projected long-term deficit and debt challenges. It has been said that the current process does not encourage or require the consideration of long-term budgetary outcomes. Some argue that the lack of a formal requirement for Congress to consider long-term budget outcomes discourages long-term planning and encourages policy outcomes that are desirable in the short term at the expense of the long-term budget situation. It has therefore been suggested that Congress adopt a long-term budget focus.

Summary: In considering budget or budget process reform, it may be useful to review current congressional tools that may be used for long-term budgeting. For example, information and data are publicly available that project spending, revenue, deficit, and debt levels in the long term, and in some instances, data evaluating the long-term outlook of specific programs are available. Congressional committees are useful resources for long-term budgeting as they gather information and make policy recommendations on individual programs, as well as the budget as a whole. In addition, Congress is able to develop and consider a multiyear budget plan in the form of a budget resolution. The budget resolution may also trigger the budget reconciliation process, which has been used to make legislative changes addressing long-term budgetary levels. Also, the House and Senate have internal rules that restrict or prohibit consideration of legislation that would have certain long-term budgetary effects (e.g., the PAYGO rule and the long-term deficit rule). And lastly, there are laws that restrict or prohibit the enactment of budgetary legislation that would have certain long-term budgetary effects (such as 10-year discretionary spending limits and statutory PAYGO).

T he Constitution grants Congress enormous power and freedom to engage in what we now refer to as budgeting. First, the Constitution grants Congress the power of the purse but does not prescribe or require any specific budgetary legislation or budgetary outcomes. Further, the Constitution allows the House and Senate to determine the rules of their internal proceedings but does not prescribe or establish any budgetary rules or restrictions. Congress has thus developed certain types of budgetary legislation as well as rules and practices that govern the content and consideration of that budgetary legislation. This collection of budgetary legislation, rules, and practices is referred to as the congressional budget process.

Some have criticized the current congressional budget process and the budget outcomes that it has produced and have suggested that Congress adopt a more long-term budget focus. There is no consensus on what is meant by long term . For example, advocates of biennial budgeting (i.e., two-year budget resolutions, two-year appropriations legislation) sometimes characterize a two-year cycle as long-term budgeting. Some view the current 10-year budget window (described below) as being a form of long-term budgeting, while others consider long-term budgeting to span a lengthier period, such as 30 years or 50 years.

There is also no general consensus on what is required by long-term budgeting. Would it simply require Congress to stay informed of the long-term projections for spending, revenue, deficits, and debt? Would it require Congress to affirmatively vote annually on policies that are projected to continue year to year? Would it require Congress to adopt a long-term budget plan or long-term fiscal targets (e.g., debt-to-GDP ratio limits)? And if targets were agreed upon, would it require automatic triggers to enforce fiscal targets (e.g., automatic spending cuts or automatic tax increases)?

Members of Congress, the Administration, and outside groups have expressed concern over projected levels of deficits and debt. The Congressional Budget Office (CBO) recently stated that federal deficits and debt held by the public, which are higher than average, are projected to increase sharply over the next 30 years. CBO states that deficits would rise from 4.2% of gross domestic product (GDP) in 2019 to 8.7% in 2049. According to CBO, federal debt held by the public is currently 78% of GDP, significantly higher than the 50-year average of 42%. Under current law, budget deficits would cause the debt to be 92% of GDP by 2029 and 144% of GDP by 2049, which "would be the highest in the nation's history by far." If policymakers want debt in 2049 to equal its current share of GDP (78%), the deficit would need to be reduced by $400 billion every year until then, CBO has projected.

Some have argued that the current congressional budget process has created, or at least exacerbated, the projected long-term deficit and debt challenges. One recurring criticism is that the process does not encourage or require the consideration of long-term budgetary outcomes. Some argue that the lack of a formal requirement for Congress to consider long-term budget outcomes discourages long-term planning and encourages policy outcomes that are desirable in the short term at the expense of the long-term budget situation. Further, they argue that the current process does not even deter or prohibit Congress from enacting legislation that worsens the long-term deficit and debt projections. They argue that Congress needs to adopt a long-term budget focus. This report provides information on existing resources and congressional rules related to a long-term budget focus.

Challenges Associated with Long-Term Budgeting

There are potential challenges or obstacles associated with the adoption of a long-term budget focus within the current congressional budget process.

Many think of the budget as being decided annually, but most policies that dictate how much will be spent and collected are fixed. Mandatory spending makes up 70% of total spending, is generally set by laws enacted years or decades ago, and remains in effect without the need for annual congressional approval. (Mandatory spending includes Medicare, Social Security, Medicaid, and interest on the debt.) Likewise, the collection of revenue as prescribed by the tax code continues without the need for legislative action. These mandatory spending and revenue policies change only if Congress and the President enact legislation making such changes. Under current law, these fixed spending and revenue policies are projected to result in increasing deficits and debt. Many argue that addressing rising deficit and debt in the long term would require policy changes. Another challenge associated with long-term budgeting is that any projected levels of spending and revenue are inherently uncertain. The further out spending and revenue are projected, the more uncertain they become. For example, within CBO's long-term budget projections (referenced above), the agency notes that such projections are "very uncertain." CBO concludes that while debt as a percentage of GDP in 2049 would likely be much greater than it is today if current laws remain unchanged, many factors (e.g., labor force participation, productivity in the economy, interest rates on federal debt, and health care costs per person) may alter actual outcomes.

Other challenges associated with long-term budgeting include the difficulty of budgeting for unforeseen events (such as military engagements, natural disasters, and downturns in the economy); underlying projection assumptions; and the problem of setting fiscal policy or establishing long-term goals that a future Congress may not support.

Information Available to Congress on the Long-Term Budget Outlook

Information and data are publicly available to assist Congress in understanding the projected long-term budget situation. Projections are available that show spending, revenue, deficits, and debt in the long term, and in some instances, data evaluating the long-term outlook of specific programs are available. Selected examples of that information are described below.

General Budgetary Projections for the Upcoming 10-Year Period

CBO regularly publishes budgetary and economic projections, which are formally known as the annual Budget and Economic Outlook but are often referred to in Congress as the annual baseline. These baseline projections cover a 10-year period, which is often referred to as the budget window. These projections are based on the assumption that current laws regarding federal spending and revenues will generally remain in place. The Budget and Economic Outlook includes information on projected spending, revenue, deficits, debt, economic growth, and alternative fiscal scenarios. Congress typically uses this baseline as a benchmark against which it measures legislative proposals.

The Office of Management and Budget (OMB) also publishes budgetary and economic projections. As required by law, OMB includes information in the President's annual budget request on projected spending and revenue. Such projections typically span 10 years.

In addition to the information provided on the 10-year budgetary outlook under current law, CBO provides Congress with cost estimates of certain proposed legislation. The Congressional Budget Act of 1974 (the Budget Act) requires that the CBO provide an estimate for any bill reported from committee. These cost estimates provide information on how the legislation would affect spending, revenues, and the deficit over the next 10 years relative to the baseline. Such cost estimates assist Congress in adhering to the budget resolution and other points of order, described below.

General Budgetary Projections for the Upcoming Decades

Each year, CBO provides Congress with its Long-Term Budget Outlook , which shows the effects of demographic trends, economic developments, and rising health care costs on federal spending, revenues, and deficits over the next 30 years. The report also shows the long-term budgetary and economic effects of some alternative policies.

In addition, in its cost estimates, CBO is required to note whether the underlying legislation would increase deficits in future decades. To assist the Senate in complying with its "long-term deficit rule" (described below), CBO notes whether the legislation would increase on-budget deficits in any of the four consecutive 10-year periods beginning with 2030.

OMB provides long-term projections in the President's annual budget request in a section titled, "Long Term Budget Outlook." These projections recently spanned a 25-year period and include projections under different fiscal scenarios.

The Government Accountability Office also provides information and interactive tools on projected spending, revenue, deficits, and debt over the next 70 years.

Spending Projections for Individual Programs

Long-term information and projections are available for some individual programs. For example, the Social Security and Medicare Trustees issue respective actuarial estimates of each trust fund for the next 75 years. These reports contain both short- and long-range projections of annual program expenditures and payroll tax receipts. There are also estimates of the actuarial deficits over the next 75 years that represent the shortfall between the program's projected expenditures and income.

In addition, the CBO provides long-term projections on specific programs. For example, CBO publishes recurring reports on the long-term projections for Social Security, the long-term implications of the Future Years Defense Program, and 10-year costs of U.S. nuclear forces.

Current Congressional Tools for Long-Term Budgeting

The Constitution grants Congress the power of the purse. In carrying out such duties, Congress has developed budget-related rules and legislation as well as committees to carry out this responsibility. Some of these tools might be used in long-term budgeting.

Congressional committees serve Congress by specializing in particular policy areas. They do this by gathering information, making policy recommendations, and performing oversight. In the course of this work, committees study and make recommendations related to the long-term implications of the specific programs within their jurisdiction. For example, the Senate Finance Committee and the House Ways and Means Committee may hold hearings on the long-term outlook for Social Security.

In addition, the House and Senate each have a Budget Committee, established by the Budget Act. They enjoy jurisdiction over the budget resolution, the budget reconciliation process (described below), and the budget process generally. As stated by the Senate Budget Committee, "The [Budget] Committee, the budget resolution and reconciliation process, and enforcement authorities were created to enable Congress to create, enforce, and manage the annual Federal budget, including all types of Federal spending and revenues."

The Budget Committees may impact the budget and the budget process in many ways. They are responsible for developing and drafting a budget plan in the form of a budget resolution. A budget resolution agreed to by the House and Senate may trigger the budget reconciliation process, which has been used to make legislative changes reducing future deficits (described below). During the development of the budget plan, the Budget Committees gather information on the budget from many sources. They review the President's budget submission, and the director of OMB typically testifies before each Budget Committee. Additionally, the committees closely review CBO's annual budget and economic outlook for the upcoming 10 years, and the director of CBO testifies before the Budget Committees to answer questions.

The Budget Committees also hold hearings and consider legislation related to the budget process and the budget as a whole. This has included examining the long-term budget outlook and the potential for a more long-term budget process. Since the Budget Committees enjoy jurisdiction over the budget process generally, they would likely be involved in any efforts to alter the current process.

The Budget Resolution and the Budget Reconciliation Process

The budget resolution reflects an annual agreement between the House and Senate on spending and revenue levels for the upcoming fiscal year and at least four additional years. The budget resolution does not become law. Therefore, no money is spent or collected as a result of its adoption. Instead, it is an agreement between the House and Senate meant to assist Congress in considering an overall budget plan. Once agreed to by both chambers in the exact same form, the budget resolution creates parameters that may be enforced in two primary ways: (1) by points of order and (2) by using the budget reconciliation process.

Once the budget resolution has been agreed to by both chambers, certain levels contained in it are enforceable through points of order. This means that if legislation is being considered on the House or Senate floor that would violate certain levels contained in the budget resolution, a Member may raise a point of order against the consideration of that legislation.

The Budget Act requires that the budget resolution include the following budgetary levels for the upcoming fiscal year and at least four additional years (often referred to as out years): total spending, total revenues, the surplus/deficit, new spending for each major functional category, the public debt, and (in the Senate only) Social Security spending and revenue levels. The Budget Act also requires that the aggregate amounts of spending recommended in the budget resolution be allocated among committees.

Enforcement through the Budget Reconciliation Process

While points of order can be effective in enforcing the budgetary goals outlined in the budget resolution, they can be raised against legislation only when it is pending on the House or Senate floor. Moreover, points of order cannot limit direct spending or revenue levels resulting from current law. Often, for the budgetary levels in the budget resolution to be achieved, Congress must pass legislation to alter the levels of revenue and/or direct spending resulting from existing law. In this situation, Congress seeks to reconcile the levels of direct spending and revenue under existing law with those budgetary levels expressed in the budget resolution. To assist in this process, the budget reconciliation process allows special consideration of legislation that would accomplish those budgetary levels expressed in the budget resolution.

If Congress intends to use the reconciliation process, reconciliation directives must be included in the annual budget resolution. These directives instruct individual committees in the House and Senate to develop and report legislation that would change laws within their jurisdiction related to direct spending, revenue, or the debt limit. Such reconciliation legislation is then eligible to be considered under special expedited procedures in both the House and Senate. These procedures are especially important in the Senate as they include a limit on debate time. This means the legislation does not require the support of three-fifths of Senators to bring debate to a close.

Since 1980, Congress has sent the President 25 reconciliation acts, 21 of which were signed into law. Reconciliation has most often been used to enact legislation that was projected to reduce deficits. For example, between 1981 and 1984, four reconciliation bills were enacted that were each projected to decrease the deficit. Reconciliation legislation can be used to make policy changes that are temporary or permanent, therefore affecting the long-term budget. For a brief description of each reconciliation bill enacted into law, see CRS Report R40480, Budget Reconciliation Measures Enacted Into Law: 1980-2017 , by Megan S. Lynch.

While the reconciliation process has been used to enact legislation that was projected to increase the net deficit, a Senate rule (known as the Byrd rule) prohibits reconciliation legislation from increasing the net deficit outside the "budget window." (The budget window is the period covered by the underlying budget resolution and recently has spanned 10 years. )

The House and Senate have many additional budget-related points of order that seek to restrict or prohibit consideration of different types of budgetary legislation, some of which have long-term implications. These points of order are found in various places such as the Budget Act, House and Senate standing rules, and past budget resolutions.

For example, the House and Senate have pay-as-you-go (PAYGO) rules that prohibit the consideration of direct spending or revenue legislation that is projected to increase the deficit in either of two time periods: (1) the period consisting of the current fiscal year, the budget year, and the four ensuing fiscal years following the budget year and (2) the period consisting of the current fiscal year, the budget year, and the ensuing nine fiscal years following the budget year.

Additionally, in the Senate, a rule exists that is often referred to as the "long-term deficit point of order." It prohibits the consideration of legislation that would cause a net increase in deficits of more than $5 billion in any of the four consecutive 10-year periods beginning after the upcoming 10 years. Previously, the House had a similar rule that prohibited consideration of legislation that would cause a net increase in mandatory spending in excess of $5 billion during the same period. The House rule is no longer in effect.

Additional Budget Enforcement Mechanisms Currently in Effect

In addition to points of order, there are other types of budget enforcement mechanisms that seek to restrict or prohibit the enactment of budgetary legislation over the long term.

Legal Limits on Annual Discretionary Spending

The Budget Control Act of 2011 (BCA; P.L. 112-25 ) established statutory limits on discretionary spending for a 10-year period ( FY2012-FY2021 ) . (S imilar discretionary spending limits were in effect between FY1991 and FY2002.) The BCA sets separate annual limits for defense discretionary and nondefense discretionary spending. The defense category consists of discretionary spending in budget function 050 (national defense) only. The nondefense category includes discretionary spending in all other budget functions. If discretionary appropriations are enacted that exceed a statutory limit for a fiscal year, across-the-board reductions (i.e., sequestration) of nonexempt budgetary resources are triggered to eliminate the excess spending within the applicable category.

In February 2010, the Statutory Pay-As-You-Go Act of 2010 ( P.L. 111-139 ) was enacted establishing a budget enforcement mechanism commonly referred to as "Statutory PAYGO." Statutory PAYGO is generally intended to discourage enactment of legislation that is projected to increase the on-budget deficit over five and 10 years.

To enforce Statutory PAYGO, OMB is required to record the budgetary effects of newly enacted revenue and direct spending legislation over the course of a year. After the end of a congressional session, OMB is required to issue an annual PAYGO report noting whether a debit has been recorded for the current budget year. If no such debit is found, no action occurs. If a debit is found, however, the President must issue a sequestration order, which automatically implements across-the-board cuts to non-exempt direct spending programs to compensate for the amount of the debit.

Selected Budget Enforcement Related Mechanisms No Longer inÂ Effect

While the following budget related mechanisms are no longer in effect, they provide insight into Congress's past budget process reform efforts and the desire for long-term budgeting.

In 1985, the Balanced Budget and Emergency Deficit Control Act ( P.L. 99-177 )âreferred to as the Gramm-Rudman-Hollings Actâemployed budget process mechanisms in an attempt to force Congress and the President to balance the budget within a six-year period by specifying annual deficit limits for each fiscal year (1986-1991). The act required that both the President and Congress adhere to the deficit limits when developing their budget plans. The act did not specify what policy changes should be made to achieve deficit reduction, leaving Congress and the President to negotiate over possible revenue increases and spending decreases. To enforce the specified deficit limits, the act set forth a specific process for the cancellation of spending by sequestration in the event that the deficit limits were breached.

These deficit targets and related enforcement mechanism were amended by the Balanced Budget and Emergency Deficit Control Act of 1987 ( P.L. 100-119 ) and then were fundamentally revised by the Budget Enforcement Act of 1990 ( P.L. 101-508 ), which replaced the focus on deficit targets under Gramm-Rudman-Hollings with a two-pronged approach to budgetary enforcement: the implementation of PAYGO procedures to control new direct spending and revenue legislation and discretionary spending limits to control the level of discretionary spending. For more information, see CRS Report R41901, Statutory Budget Controls in Effect Between 1985 and 2002 , by Megan S. Lynch.

The Joint Select Committee on Deficit Reduction (111th Congress)

The BCA created a Joint Select Committee on Deficit Reduction. The committee comprised 12 Members from the House and Senateâthree chosen by each of the chambers' party leaders. The committee was instructed to develop legislation to reduce the budget deficit by at least $1.5 trillion over the 10-year period FY2012-FY2021. Legislation reported by the committee would then be eligible to be considered under special expedited procedures in both the House and Senate. These procedures are especially important in the Senate since they include a limit on debate time. This means the legislation does not require the support of three-fifths of Senators to bring debate to a close.

The BCA stipulated that if a measure meeting specific requirements was not enacted by January 15, 2012, then an automatic process would be triggered to enforce the budgetary goal established for the committee. The committee did not reach agreement on such legislation, and while the committee is no longer in effect, the automatic process triggered by the lack of enactment still remains. This comprises annual downward adjustments of the discretionary spending limits (described above) and sequester of nonexempt mandatory spending programs through FY2027.

The Joint Select Committee on Budget and Appropriations Process Reform (115th Congress)

The Bipartisan Budget Act of 2018 ( P.L. 115-123 ) created the Joint Select Committee on Budget and Appropriations Process Reform. The committee comprised 16 Members from the House and Senateâfour chosen by each of the chambers' party leaders. The committee was tasked with formulating recommendations and legislative language to "significantly reform the budget and appropriations process."

The committee held a markup on draft legislation that concluded on November 29, 2018. The principal recommendation in the draft provided that the budget resolution would be adopted for a two-year cycle rather than the current annual cycle. The committee ultimately did not vote to report the bill as amended, and it was never considered by the full house.


The Emoluments Clauses and the Presidency: Background and Recent Developments

Summary: Recent litigation involving the President has raised legal issues concerning formerly obscure constitutional provisions that prohibit the acceptance or receipt of "emoluments" in certain circumstances. First, the Foreign Emoluments Clause (Article I, Section 9, Clause 8 of the Constitution) prohibits any person "holding any Office of Profit or Trust under" the United States from accepting "any present, Emolument, Office, or Title, of any kind whatever" from a foreign government unless Congress consents. Second, the Domestic Emoluments Clause (Article II, Section 1, Clause 7) prohibits the President from receiving "any other Emolument [beyond a fixed salary] from the United States, or any of them." These two provisions (collectively, the Emoluments Clauses) have distinct, but related, purposes. The purpose of the Foreign Emoluments Clause is to prevent corruption and limit foreign influence on federal officers. The Clause grew out of the Framers' experience with the European custom of gift-giving to foreign diplomats, which the Articles of Confederation prohibited. The purpose of the Domestic Emoluments Clause is to preserve the President's independence by preventing the legislature and the states from exerting influence over him "by appealing to his avarice."

Summary: An important threshold issue in examining the Emoluments Clauses is determining who is subject to their terms. The scope of the Domestic Emoluments Clause is clear: it applies to "[t]he President." The scope of the Foreign Emoluments Clause is less clear. By its terms, the Clause applies to any person holding an "Office of Profit or Trust under" the United States. The prevailing view is that this language reaches only federal, and not state, officeholders. According to the Department of Justice's Office of Legal Counsel (OLC), which has a developed body of opinions on the Foreign Emoluments Clause, offices "of profit" include those that receive a salary, while offices "of trust" require discretion, experience, and skill. There is some disagreement over whether elected federal officers, such as the President, are subject to the Foreign Emoluments Clause. Some legal scholars have argued that, as a matter of original public meaning, the Foreign Emoluments Clause reaches only appointed officers (and not elected officials). Other legal scholars dispute that argument, however, and OLC has presumed that the Foreign Emoluments Clause applies to the President. A recent district court opinion on this issue came to the same conclusion.

Summary: Another key disputed issue over the scope of the Emoluments Clauses is what constitutes an "emolument." This question has divided legal scholars, and federal courts have only recently addressed the issue. Debate has largely centered on whether the Emoluments Clauses restrict private, arm's-length market transactions between covered officials and governments, or whether the Clauses are limited to office- or employment-based compensation. For its part, OLC has at times appeared to adopt a fact-specific, functional view of the Clauses, focusing on the purpose and potential effect of the specific payments or benefits at issue as they relate to the Clauses' goals of limiting influence on the President and federal officers. The only two courts to decide the issue adopted a broad definition of "emolument" as reaching any benefit, gain, or advantage of more than de minimis value, but those decisions are not final.

Summary: Courts are divided over whether the Emoluments Clauses may be enforced through civil litigation. Among other things, the doctrine of standing may present a significant limitation on the ability of public officials or private parties to seek judicial enforcement of the Emoluments Clauses. Standing, grounded in Article III of the Constitution, requires a plaintiff to identify a personal injury (known as an "injury-in-fact") that is actual or imminent, concrete, and particularized. The injury must also be "fairly traceable" to allegedly unlawful conduct of the defendant and "likely to be redressed by the requested relief." Different plaintiffs in ongoing Emoluments Clause cases have relied on various theories to support standing, with mixed results. States and private parties, including business competitors to an office holder, have asserted injuries in the form of increased competition and loss of business from the alleged constitutional violations. Some Members of Congress have relied on the alleged deprivation of their opportunity to vote on the acceptance of emoluments under the Foreign Emoluments Clause to support their standing to sue. The lower courts have reached different conclusions on these standing issues, and the Supreme Court has yet to weigh in on the matter. If the courts lack jurisdiction to enforce the Emoluments Clauses, the political process would be the remaining avenue to enforce the provisions, such as through legislation or political pressure. The adequacy of those options is, however, disputed.

T he Constitution contains three provisions that mention the term "emolument":

1. The Foreign Emoluments Clause . Article I, Section 9, Clause 8 provides that "no Person holding any Office of Profit or Trust under [the United States], shall, without the Consent of Congress, accept of any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State"; 2. The Domestic Emoluments Clause . Article II, Section 1, Clause 7 provides that "[t]he President shall, at stated Times, receive for his Services, a Compensation, which shall neither be encreased nor diminished during the Period for which he shall have been elected, and he shall not receive within that Period any other Emolument from the United States, or any of them"; and 3. The Ineligibility Clause. Article I, Section 6, Clause 2 provides (among other things) that no Member of Congress shall "be appointed" during his or her term "to any civil Office under the Authority of the United States, which shall have been created, or the Emoluments whereof shall have been encreased during such time[.]"

The first two of these Clauses are the focus of this report. For most of their history, the Foreign and Domestic Emoluments Clauses (collectively, the Emoluments Clauses or the Clauses) were little discussed and largely unexamined by the courts. Recent litigation involving the President, however, has led to multiple federal court decisions more fully addressing the Clauses' scope and application.

This report accordingly provides an overview of the Emoluments Clauses as they relate to the President, focusing on the legal issues that have been central to the recent litigation. More specifically, this report discusses (1) the history and purpose of the Clauses; (2) whether the President is a person holding an "Office of Profit or Trust under [the United States]" for purposes of the Foreign Emoluments Clause; (3) the scope of the Emoluments Clauses, focusing specifically on disputes over the breadth of the term "emolument"; and (4) how the Clauses may be enforced.

History and Purpose of the Emoluments Clauses

The Foreign Emoluments Clause's basic purpose is to prevent corruption and limit foreign influence on federal officers. At the Constitutional Convention, Charles Pinckney of South Carolina introduced the language that became the Foreign Emoluments Clause based on "the necessity of preserving foreign Ministers & other officers of the U.S. independent of external influence." The Convention approved the Clause unanimously without noted debate. During the ratification debates, Edmund Randolph of Virginiaâa key figure at the Conventionâexplained that the Foreign Emoluments Clause was intended to "prevent corruption" by "prohibit[ing] any one in office from receiving or holding any emoluments from foreign states."

The Clause reflected the Framers' experience with the then-customary European practice of giving gifts to foreign diplomats. Following the example of the Dutch Republic, which prohibited its ministers from receiving foreign gifts in 1651, the Articles of Confederation provided that "any person holding any office of profit or trust under the United States, or any of them" shall not "accept of any present, emolument, office, or title of any kind whatever, from any king, prince, or foreign state." The Foreign Emoluments Clause largely tracks this language from the Articles, although there are some differences.

During the Articles period, American diplomats struggled with how to balance their legal obligations and desire to avoid the appearance of corruption, against prevailing European norms and the diplomats' wish to not offend their host country. A well-known example from this period, which appears to have influenced the Framers of the Emoluments Clause, involved the King of France's gift of an opulent snuff box to Benjamin Franklin. Concerned that receipt of this gift would be perceived as corrupting and violate the Articles of Confederation, Franklin sought (and received) congressional approval to keep the gift . Following this precedent, the Foreign Emoluments Clause prohibits federal officers from accepting foreign presents, offices, titles, or emoluments, unless Congress consents.

The Domestic Emoluments Clause's purpose is to preserve the President's independence from Congress and state governments. To accomplish this end, the Clause contains two key provisions. First, it provides that the President shall receive a compensation for his services, which cannot be increased or decreased during his term, thus preventing Congress from using its control over the President's salary to exert influence over him. To preserve presidential independence further, the Clause provides that, apart from this fixed salary, the President shall not receive "any other Emolument" from the United States or any state government. In light of its purpose, the Domestic Emoluments Clauseâunlike the Foreign Emoluments Clauseâdoes not permit Congress to assent to the receipt of otherwise prohibited emoluments from the state or federal governments.

The Domestic Emoluments Clause, which drew upon similar provisions in state constitutions, received little noted debate at the Constitutional Convention. Its meaning, however, was elucidated by Alexander Hamilton in The Federalist No. 73 . Hamilton wrote that the Domestic Emoluments Clause was designed to isolate the President from potentially corrupting congressional influence: because the President's salary is fixed "once for all" each term, the legislature "can neither weaken his fortitude by operating on his necessities, nor corrupt his integrity by appealing to his avarice." Similarly, Hamilton explained that because "[n]either the Union, nor any of its members, will be at liberty to give . . . any other emolument," the President will "have no pecuniary inducement to renounce or desert the independence intended for him by the Constitution." Other Framers echoed this sentiment during the ratification debates.

Nineteenth and Twentieth Century Practice

The Foreign Emoluments Clause provides a role for Congress in determining the propriety of foreign emoluments, in that receipt of an emolument otherwise prohibited by the Clause is permitted with the consent of Congress. Under this authority, Congress has in the past provided consent to the receipt of particular presents, emoluments, and decorations through public or private bills, or by enacting general rules governing the receipt of gifts by federal officers from foreign governments. For example, in 1966, Congress enacted the Foreign Gifts and Decorations Act, which provided general congressional consent for foreign gifts of minimal value, as well as conditional authorization for acceptance of gifts on behalf of the United States in some cases.

Several Presidents in the 19th centuryâsuch as Andrew Jackson, Martin Van Buren, John Tyler, and Benjamin Harrison ânotified Congress of foreign presents that they had received, and either placed the gifts at its disposal or obtained consent to their receipt. Other 19th century Presidents treated presents that they received as "gifts to the United States, rather than as personal gifts." Thus, in one instance, President Lincoln accepted a foreign gift on behalf of the United States and then deposited it with the Department of State.

In the 20th century, some Presidents have sought the advice of the Department of Justice's Office of Legal Counsel (OLC) on whether acceptance of particular honors or benefits would violate the Emoluments Clauses. Three such OLC opinions addressed whether (1) President Kennedy's acceptance of honorary Irish citizenship would violate the Foreign Emoluments Clause; (2)Â President Reagan's receipt of retirement benefits from the State of California would violate the Domestic Emoluments Clause; and (3)Â President Obama's acceptance of the Nobel Peace Prize would violate the Foreign Emoluments Clause.

Persons Subject to the Emoluments Clauses

An important threshold issue in examining the Emoluments Clauses is determining who is subject to their terms. The scope of the Domestic Emoluments Clause is clear: it applies to "[t]he President." The Clause prohibits the President from receiving emoluments from state or federal governments, aside from his fixed federal salary. The Foreign Emoluments Clause applies to any person holding an "Office of Profit or Trust under [the United States]." OLC, which has developed a body of opinions on the Emoluments Clauses, has opined that the President "surely" holds an "Office of Profit or Trust" under the Constitution. OLC opinions are generally considered binding within the executive branch.

There has been significant academic debate about whether OLC's conclusion comports with the original public meaning of the Foreign Emoluments Clause. Some legal scholars have argued that the Foreign Emoluments Clause does not apply to elected officials such as the President, but only to certain appointed federal officers. Other scholars support OLC's view that the President holds an office of profit and trust under the United States under the original meaning of the Foreign Emoluments Clause.

In addition to textual and structural arguments, these scholars debate the significance of Founding-era historical evidence. To support the view that the Foreign Emoluments Clause does not apply to the President, academics have observed that, among other things, (1) a 1792 list produced by Alexander Hamilton of "every person holding any civil office or employment under the United States" did not include elected officials such as the President and Vice President; (2)Â George Washington accepted gifts from the Marquis de Lafayette and the French Ambassador while President without seeking congressional approval; and (3)Â Thomas Jefferson similarly received and accepted diplomatic gifts from Indian tribes and foreign nations, such as a bust of Czar Alexander I from the Russian government, without seeking congressional approval. On the other side of the debate, scholars have observed that, among other things, (1) during Virginia's ratification debates, Edmund Randolph directly stated that the Foreign Emoluments Clause applies to the President; (2) George Mason, another Framer, articulated a similar view in those same debates; and (3) Alexander Hamilton, discussing the dangers of foreign influence on republics in The Federalist No. 22 , stated that this concern extends to a republic's elected officials.

Beyond examining contemporaneous historical evidence of the Foreign Emoluments Clause's original public meaning, other evidence (such as text, precedent, and settled practice) is often usedâat least by some juristsâto inform constitutional meaning and interpretation. As a textual matter, both the Constitution itself and contemporaneous sources refer to the Presidency as an "Office." The President receives compensation for his service in office (that is, "Profit") and is tasked with many important constitutional duties (that is, "Trust"). Furthermore, as discussed earlier, historical practice from the 19th and 20th centuries could support the view that the President is subject to the Foreign Emoluments Clause. Unlike Washington's and Jefferson's actions, several 19th century Presidents notified Congress or sought congressional approval upon receipt of gifts by foreign governments. Finally, the common practice among recent Presidents of placing their financial interests in a blind trust or its equivalent could reflect a concern that presidential financial holdings may implicate the Foreign Emoluments Clause.

The parties in recent litigation involving the Emoluments Clauses have not disputed that the Foreign Emoluments Clause applies to the President. A single district court decision has reached the merits of this issue. Weighing the evidence discussed above, that court held that "the text, history, and purpose of the Foreign Emoluments Clause, as well as executive branch precedent interpreting it, overwhelmingly support the conclusion" that the Foreign Emoluments Clause applies to the President. This case is currently on appeal before the full Fourth Circuit.

A key disputed issue regarding the scope of the Emoluments Clauses is what constitutes an "emolument." This question has divided legal scholars and has only recently been addressed by any federal courts.

Scholars, courts, and executive branch agencies have offered several potential definitions of "emolument":

1. Office-related definitions . Black's Law Dictionary defines an "emolument" as an "advantage, profit, or gain received as a result of one's employment or one's holding of office." Some scholars argue that this employment- or office-centric definition of the term is the definition encompassed by the Emoluments Clauses, meaning that the Clauses prohibit covered officials from receiving compensation "for the personal performance of services" as an officer or employee but do not bar "ordinary business transactions" between a covered official and government. 2. Any "profit, gain, advantage, or benefit . " Others argue that the term "emolument" is broader in scope, applying to any profit, gain, advantage, or benefit. Under this broader conception, even "ordinary, fair market value transactions" between a covered official and foreign or domestic governments would be prohibited. Two recent district court decisions adopted this broader definition of "emolument." 3. Functional or purpose-based d ef initions. Both the Department of Justice's OLC and the Comptroller General of the United States, on behalf of the Government Accountability Office (GAO), have issued opinions on whether the acceptance of particular payments, benefits, or positions would implicate the Emoluments Clauses. These opinions have at times appeared to adopt a fact-specific, functional view of the Clauses, focusing on the purpose and potential effect of the specific payments or benefits at issue as they relate to the Clauses' goals of limiting influence on the President and federal officers. The relevant assessment in some of these opinions has appeared to be whether the payments or benefits are intended to or could "influence . . . the recipient as an officer of the United States" under the totality of the circumstances. At least one commentator has asserted that the OLC and GAO opinions support a middle view that Presidents or other federal officers may receive "certain fixed benefits" without those benefits being considered emoluments so long as they are not "subject to foreign or domestic government manipulation or adjustment in connection with" the office.

Debates over the scope of the Clauses have largely centered on their text, their history and purpose, and historical practice. With respect to text, for instance, proponents of a broad definition emphasize the use of the word "any" in both Clauses and the phrase "any kind whatever" in the Foreign Emoluments Clause. They also contrast those provisions with the limiting term "whereof" that links emoluments to "civil Office" in the Ineligibility Clause (the provision that limits the ability of Members of Congress to hold dual positions). But proponents of a narrower, office- or employment-limited definition note that the word "any" in the Clauses may simply be read as extending coverage to multiple forms of emoluments (beyond just monetary remuneration). They further assert that the use of "emolument" in the Ineligibility Clause is clearly tied to an office-based definition and supports applying the same definition to the other provisions. As for the Clauses' history and purpose, both sides point to dictionary definitions and other uses of the word (including by Framers) contemporaneous with the Constitution's drafting to support their preferred definition. Proponents of a broad definition also argue that statements about the general anti-corruptive purpose of the Clauses support reading it expansively, while proponents of an office- or employment-limited definition assert that the Clauses were the product of a "balancing of values" that included attracting candidates for federal service who may have had conflicting commercial interests. As for the corpus of OLC and GAO opinions interpreting the Clauses, proponents of the broader and narrower definitions both cite opinions that they argue support their favored definitions.

In 2018 and 2019, two federal district courts substantively addressed the Emoluments Clauses' scope for the first time. Both courts concluded that the term "emolument" as used in the Clauses "is broadly defined as any profit, gain, or advantage." As to the Clauses' text, the courts found significant the use of "expansive modifiers" like "any other" and "any kind whatever," and rejected the proposition that the term's office-related use in the Ineligibility Clause should control its use in the other Clauses. With respect to the Clauses' history and purpose, the courts, while acknowledging that broader and narrower definitions of "emolument" both existed at the time of ratification, found the weight of the historical evidence and the Clauses' "broad anti-corruption" purpose supported the more expansive definition. Finally, the courts viewed executive branch precedent and practice as "overwhelmingly consistent with .Â .Â . [an] expansive view of the meaning of the term 'emolument,'" observing that "OLC pronouncements repeatedly cite the broad purpose of the Clauses and the expansive reach of the term 'emolument.'"

The recent court decisions construing the Emoluments Clauses are not final, however. In fact, as discussed below, one of the decisions was reversed by a panel of the Fourth Circuit on a separate issue regarding the standing of the plaintiffs to sue, and the full Fourth Circuit has agreed to consider the district court's rulings. The other decision has been certified for an immediate appeal to the District of Columbia Circuit. Thus, the import of these decisions is uncertain.

Separate from issues regarding the scope of the Emoluments Clauses is how the provisions' mandates are enforced, including whether and to what extent the federal courts and Congress have a role in addressing violations of the Clauses. A principal hurdle in recent litigation involving the President has been the doctrine of standing. Standing is a threshold limitation concerning whether the person or entity suing in federal court has a "right to make a legal claim or seek judicial enforcement of a duty or right." The limitation includes a constitutional component stemming from Article III of the U.S. Constitution, which limits the exercise of federal judicial power to "Cases" or "Controversies." The Supreme Court has interpreted this "case-or-controversy limitation" to require, among other things, that a litigant have "a personal stake in the outcome of the controversy" before the court. At a minimum, a plaintiff must establish that he or she has suffered a personal injury (often called an "injury-in-fact") that is actual or imminent and concrete and particularized. In other words, the injury cannot be "abstract," must affect the plaintiff in a "personal and individual way," and must actually exist or at least be "certainly impending" rather than merely possible in the future. The plaintiff must also show "a sufficient causal connection between the injury and the conduct complained of" (causation) and "a likelihood that the injury will be redressed by a favorable decision" (redressability).

Recent lawsuits over the Emoluments Clauses have been filed in three federal courts by (1)Â private parties who argue they compete for business with properties related to the alleged violations of the Clauses, as well as a public interest organization (the "SDNY litigation"); (2)Â the State of Maryland and the District of Columbia (the "Maryland litigation"); and (3) over 200 Members of Congress (the "Congressional litigation"). Each set of plaintiffs implicate distinct legal issues and precedents related to standing. Private-party competitor plaintiffs rely on the notion of "competitor standing," which holds that an economic actor may have standing to challenge unlawful action that benefits a direct competitor in a way that increases competition in the relevant market. State plaintiffs also rely on a competitor standing theory and additionally assert harms to certain sovereign and "quasi-sovereign" interests of the state related to tax revenue, diminution of their sovereign authority, and the economic well-being of state residents in general. Finally, Members of Congress assert standing stemming from the alleged deprivation of their constitutionally prescribed opportunity to vote on the permissibility of particular emoluments under the Foreign Emoluments Clause, which implicates a unique set of standing principles that apply specifically to legislative plaintiffs. More broadly, regardless of the status or classification of the plaintiffs, the fact that a lawsuit involving the Emoluments Clauses seeks a court ruling on the constitutionality of the conduct of an official within another branch of the federal government means that courts must conduct an "especially rigorous" standing inquiry given underlying separation-of-powers concerns.

Attempts by these various plaintiffs to sue for alleged violations of the Emoluments Clauses have thus far met with mixed results. With respect to private-party competitor plaintiffs, the district court in the SDNY litigation concluded that several such plaintiffs lacked standing because it was "wholly speculative" that any loss of business or increase in competition could be traced to alleged violations of the Emoluments Clauses rather than "government officials' independent desire to patronize [the] businesses" allegedly involved in those violations based on factors such as service and location. But the Second Circuit recently reversed the district court's ruling regarding the competitor plaintiffs, concluding that "a plaintiff-competitor who alleges a competitive injury caused by a defendant's unlawful conduct that skewed the market in another competitor's favor [has standing] notwithstanding other possible, or even likely, causes for the benefit going to the plaintiff's competition."

As for state plaintiffs, a different district court concluded in the Maryland litigation that the State of Maryland and the District of Columbia (D.C.) had standing to sue as competitors based on their interests, along with the interests of their citizens, in hotels and event spaces that competed with a hotel in D.C. related to the alleged unconstitutional conduct. The court reasoned that, based on specific factual allegations regarding diversion of business to that hotel, the plaintiffs were "placed at a competitive disadvantage" because of violations of the Clauses that "unfairly skew[ed] the hospitality market" against them. Yet a panel of the Fourth Circuit reversed this decision, concluding that the theory of standing hinged on the proposition that government customers were patronizing the relevant hotel "because the [h]otel distributes profits or dividends" in violation of the Clauses "rather than due to any of the [h]otel's other characteristics." In the panel's view, such a proposition required "speculation into the subjective motives of independent actors . . . not before the court, undermining a finding of causation." The Fourth Circuit panel's decision has itself now been vacated, however, with the full Fourth Circuit agreeing to hear the case.

Finally, as to Members of Congress, the district court in the Congressional litigation determined in 2018 that over 200 Members had standing to sue under the Foreign Emoluments Clause based on the deprivation of their "opportunity to exercise their constitutional right to vote on whether to consent prior to . . . acceptance of prohibited emoluments." Faced with Supreme Court precedent indicating that individual legislators generally lack standing to sue for institutional injuries that amount to "abstract dilution of institutional legislative power," but may have standing when their votes on specific items "have been completely nullified," the district court concluded that the Members alleging violations of the Foreign Emoluments Clause fell into the latter category. Central to the district court's decision in the Congressional litigation was its view that the Member-plaintiffs lacked an adequate legislative remedy for the alleged violations without court intervention. According to the court, although Congress as a whole could pass "legislation on the emoluments issue" to consent to or reject perceived emoluments, the political process would do nothing to address the deprivation of the Members' opportunity to give advance approval or disapproval of particular emoluments in the first instance.

As with the court rulings on the definition of the term "emolument," the judicial decisions on standing to enforce the Emoluments Clauses are all subject to further review by the respective circuit courts. It is thus possible that the outcomes in some or all the opinions just described could change. If the effective split between the Second and Fourth Circuits on the viability of competitor standing theories as they relate to alleged violations of the Emoluments Clauses endures, Supreme Court review is also possible.

Beyond standing, other doctrines may present potential roadblocks to judicial enforcement of the Clauses. For instance, though its continued vitality is questionable, the Supreme Court has traditionally applied a "zone of interests" test as a prudential aspect of the standing inquiry, which "denies a right of review if the plaintiff's interests are marginally related to or inconsistent with the purposes implicit in the constitutional provision" at issue. Applying this test in the context of the Emoluments Clauses, the district court in the SDNY litigation involving private competitors concluded that such competitors fell outside the zone of interests of the Clauses, because the Emoluments Clauses stemmed from "concern with protecting the . . . government from corruption and undue influence" and were not "intended . . . to protect anyone from competition." Another potential barrier is the political question doctrine, a separation-of-powers-based limitation on the ability of courts to hear disputes where there is, among other things, a "textually demonstrable constitutional commitment of the issue to a coordinate political department; or a lack of judicially discoverable and manageable standards for resolving it." In the SDNY litigation, the district court concluded that Congress's authority to "consent to violations" of the Foreign Emoluments Clause meant that Congress, rather than the judiciary, would be "the appropriate body to determine whether" the alleged conduct "infringes on that power."

Reversing both these rulings, however, the Second Circuit recently concluded that (1) "a plaintiff who sues to enforce a law that limits the activity of a competitor satisfies the zone of interests test even though the limiting law was not motivated by an intention to protect entities such as plaintiffs from competition," and (2) the judiciary's responsibility to adjudicate alleged violations of the Constitution was not lessened by the "mere possibility that Congress might grant consent" to particular emoluments. The district courts in the Maryland litigation and the Congressional litigation likewise agreed that the zone of interests test and political question doctrine did not bar those suits. But like the other issues raised in recent litigation involving the Emoluments Clauses, further review of the application of these doctrines is possible. Ultimate resolution of the issues is thus uncertain and will likely depend on the nature of the plaintiff involved.

If the courts lack jurisdiction to enforce the Emoluments Clauses, the political process would be the remaining avenue for enforcement. In this vein, Congress could seek to enforce the Emoluments Clauses through legislation, political pressure, or potentially impeachment and removal. For instance, given that the Foreign Emoluments Clause explicitly provides a role for Congress in evaluating the propriety of the receipt of foreign emoluments by federal officers, Congress may be empowered to create civil or criminal remedies for violations or establish prophylactic reporting requirements through legislation. Indeed, one bill from the 115th Congress would have required certain reports and divestiture of personal financial interests of the President posing a potential conflict of interest, among other things. Resolutions have also been introduced in the 115th and 116th Congresses objecting to perceived violations of the Foreign Emoluments Clause, as well as calling on the President to take certain actions based on alleged potential violations. That said, it is unclear whether legislative actions would provide an effective means to enforce the Emoluments Clauses against the President, given the possibility of veto and potential separation-of-powers objections. As noted above, the adequacy of these legislative options has been a central issue in the Congressional litigation as it relates to Members' standing, and the issue is subject to further review at the appellate level.