SC told: Unprogrammed appropriations not unconstitutional, warned of misuse

The Supreme Court (SC) on Tuesday heard arguments from lawyer and former Senate President Franklin Drilon, who stressed that unprogrammed appropriations are not unconstitutional “per se,” but cautioned that recent practices may have distorted their intended purpose.

Appearing as amicus curiae during oral arguments on consolidated petitions questioning the legality of unprogrammed funds, Drilon maintained that such appropriations have long been part of the national budget framework.

“Unprogrammed appropriations are not inherently unconstitutional,” he told the Court.

Drilon explained that records from the Department of Budget and Management trace the use of unprogrammed appropriations back to 1989, with legal bases dating as far as 1971. 

He noted that successive administrations and Congresses have operated on the assumption that these funds are valid.

Drilon likewise described unprogrammed appropriations as a form of special appropriation under the General Appropriations Act, released only when additional revenues become available. 

“It serves as a standby authority contingent on revenue windfalls,” he said, adding that under normal conditions, such funds do not exceed the President’s recommended spending ceiling.

However, Drilon raised concern over how the mechanism is currently being implemented, warning that it may be losing its contingent nature.

“When the low threshold of excess revenue funds the inflated risk in the unprogrammed appropriations, the funding appears to be no longer contingent but almost certain,” he said.

Drilon cautioned that in such cases, unprogrammed appropriations “lose character as a special appropriation” and instead function as “a disguised general appropriations.”

Drilon also pointed out that recent budgets have included items under unprogrammed funds that should ordinarily fall within regular appropriations, such as agency operations, personnel benefits, and other recurring expenses.

“Recent unprogrammed appropriations include funding for regular agency operations, personnel benefits, and other recurring expenses,” he said.

While acknowledging that the Constitution allows flexibility in budget preparation, Drilon stressed the need for safeguards against abuse. 

“While the Constitution provides exhaustive safeguards, history demonstrates that human ingenuity can elude even the most carefully constructed limitations,” he said.

He urged the SC to clarify key constitutional questions, including the validity of including unprogrammed appropriations in the national budget and the extent of judicial review in defining the limits of congressional and executive power.

At the same time, Drilon emphasized that reforms to the system ultimately rest with the political branches.

“The decision to no longer include unprogrammed funds, or to strictly define its nature, is a matter vested in Congress and the executive branch,” he said.

He also flagged changes in the rules governing the release of such funds, particularly provisions allowing activation based on excess collections from “any” revenue source, which he described as a problematic interpretation of the law.

“To me, that is a very wrong and malicious interpretation of this provision of law,” Drilon said.