The Judgment Fund: America's Deepest Pocket and Its Susceptibility to Executive Branch Misuse
Abstract
Over the last thirty-five years, the United States government has paid out billions of dollars in settlements that have had no fiscal consequences for the agencies whose actions caused the claims. It has done so through the Judgment Fund, a relatively unknown permanent, indefinite appropriation originally created by Congress almost half a century ago to pay certain types of judgments entered against the United States.
Congress struggled for nearly two hundred years to find a way to exercise its Appropriations Clause authority over claims payments that did not drown its members in procedural detail. The article surveys that history. Through statutes such as the Tucker Act and the Federal Tort Claims Act, Congress gave the courts authority to decide claims. By enacting the Judgment Fund, it gave the Executive Branch authority to pay judgments and settlements without congressional review or involvement. In a series of statutes aimed at paperwork reduction, Congress eventually ended most requirements for the disclosure of such government payments.
The open-ended grant of authority coupled with the lack of disclosure have left the Fund vulnerable to misuse, potentially allowing the Executive to use it to settle claims for political reasons rather than litigative risk. Such settlements would bypass Congress’ power under the Appropriations Clause to control government spending. This article examines the possible political abuse of the Judgment Fund and argues that, although the Fund works well in most regards, the lack of disclosure surrounding disbursement of its payments demands attention. It also recommends that Congress consider limiting the Executive’s authority to use the Judgment Fund to finance new claims programs created without legislation, congressional input, or judicial supervision, such as the Hispanic or Female Farmer’s Claims Process established by the Obama Administration in 2011.