At the Supreme Court’s oral arguments last Tuesday on challenges to President Ferdinand Marcos Jr.’s annual budgets, the magistrates zeroed in on Unprogrammed Appropriations (UA) used as a shadow budget containing unlimited lump sum allocations.

Resource persons of the court discussing the consolidated petitions exposed a troubling pattern in which the UA in the General Appropriations Acts (GAA) had effectively evolved into a parallel fiscal scheme, or a shadow budget, that allowed the Marcos administration to generate and deploy discretionary funds outside the discipline of the regular budget process.

Counsel for the petitioners observed that “UAs ballooned to a very high amount compared with the years before 2024,” revealing a transformation in how unprogrammed funds were being used.

What was once a modest contingency mechanism had become a substantial reservoir of spending authority.

The augmentation by the Bicameral Conference Committee (Bicam), the absence of definite funding sources, the executive’s discretion over trigger certifications, and the post-enactment prioritization created the functional equivalent of a shadow budget, a pool of public funds that bypassed the deliberative legislative process and ignored the President’s own National Expenditure Program (NEP) ceiling.

The constitutional design of annual budgeting, specificity, transparency, and legislative authorization was inverted. What Congress formally appropriated became, in practice, the limit, while the Executive informally controlled an operative budget.

The constitutional injury started at the point of enactment. Under Article VI, Section 25(1), Congress is prohibited from increasing the amounts recommended by the President in the NEP, yet the Bicam habitually increased the UA beyond what either the House or the Senate had separately approved on third reading — amounts that were significantly identical in both chambers and therefore required no reconciliation.

The constitutional ceiling had been periodically violated through the Bicam’s unilateral augmentation while conveniently producing a larger discretionary pool.

The most damning structural argument came from petitioners who pointed to “post-enactment executive discretion regarding which programs were prioritized” as a defining feature of the UA.

Unlike programmed items with fixed agencies, objects, and timelines, unprogrammed funds awaited executive determination of which triggers had been met and which projects merited release.

Such discretion, exercised by the Department of Finance and the Bureau of the Treasury in certifying excess revenues, and by the DBM in imposing readiness standards, insulated the spending decisions from meaningful congressional oversight after enactment.

As Associate Justice Amy Lazaro-Javier noted during the consultation, the distinction between programmed and unprogrammed funds was an “artificial” one, as both categories drew from the same revenue sources and were subject to the same triggers.

The three triggers nominally governing UA releases were not unique guardrails; they applied equally to programmed appropriations.

What distinguished the UA then was not fiscal discipline but the absence of pre-committed programmatic obligations, leaving the executive free to direct resources toward priority projects of its own choosing, a discretion that critics argued mirrored the post-enactment control mechanisms struck down in the 2013 SC ruling that declared the pork barrel system unconstitutional.

When the SC struck down the Priority Development Assistance Fund (PDAF), it was believed P10 billion had been siphoned off in the pork barrel scam. Now the mangled amounts ran into the hundreds of billions, if not a trillion pesos.

The SC, by the same token of junking the PDAF, will likely shoot down the UA as a budget aberration.