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Saturday, February 29, 2020

Budget Spat: OMB v. Article III

The federal courts have submitted their FY 2021 budget proposal to Congress. Interesting for court watchers, there was sharp political play around this year’s budget request.

By law, unlike executive agencies, the Office of Management and Budget (OMB) is not permitted to change that budget request. 31 U.S.C. 1105(b). Undeterred, OMB did the next best thing - it gave its unsolicited recommendation that the budget proposal should be cut, i.e. “negative allowances,” to the tune of $327 million.

That suggestion precipitated a notable bench slap from Senior Judge John Lungstrum as Chair of the Judicial Conference Committee on the Budget who addressed the U.S. House Appropriations Committee. Lungstrum noted that OMB’s duty is “a simple ministerial one,” and called out OMB for the use of negative allowances, which dated back to OMB recommendations in 2017 for the FY 2018 proposed budget. “Because OMB plays no role in formulating or reviewing our requests, these ‘negative allowances’ are based on no substantive analysis and fail to engage at all with the catastrophic impacts such drastic cuts would have on the administration of justice.”

What was driving the increased expenses? According to the Judicial Conference, it was more judicial mouths to feed and the related expenses — 81 new judges appointed in FY 2019 and another 85 more projected in FY 2020. Lungstrum noted another cost driver was increased criminal workload from executive branch prosecutorial policies. This year’s proposed budget seeks an approximate 4.4% increase.

In the last decade of political polarization, I’ve noticed that the Judicial Conference’s budget request has often been presented by members of the SCOTUS on a basis that is bipartisan by appointing President. In FY 2020, it was Alito and Kagan. In FY 2011, 2012, 2014, 2016, it was Breyer and Kennedy. Likely, this isn't coincidence. If not, it might reflect a concern that Congress might wield the budget check to cut "discretionary" portions of the federal judiciary's budget if the courts are viewed as partisan, perhaps a little modern circuit riding to punish adversaries.

Posted by T. Samahon on February 29, 2020 at 08:00 AM | Permalink


Samahon, well, Jordan claims that it is for the entire judiciary. I guess that he means, that we couldn't understand from the related article, the accurate distributions of the increased money claimed by them. For example, I quote from the related article:

In addition of offsetting the cost of more judges, the judiciary is also requesting funds for more staff to address an increase in criminal cases, updates to or replacement of old facilities, and implementation of the First Step Act, which speeds up the amount of time it takes for inmates to transition out of prison and into probation officer supervision, a spokesman for the courts’ office said.

End of quotation:

So, one must distinguish between, additional expenses needed for judges, and money whatever needed for the new fiscal year. And how do we know, that the " First step act " for example, by itself, doesn't require more judges, or other personnel and services.

Whatever, the judicial branch, is too critical, whatever, more budget, is always essential, always needed, whether you may like Trump and his appointments or not.So, even if one dislike him, and even dislike his overwhelming alleged appointments, it is good thing, per se so.

By the way, here to:

"Department of Justice Announces Enhancements to the Risk Assessment System and Updates on First Step Act Implementation"


Posted by: El roam | Feb 29, 2020 10:17:15 AM

I don't understand Singer's critique of the Bloomberg article as particularly slanted or "lazy." The federal courts themselves identified the additional judges as a driver of cost and therefore, in part, necessitating the increased funding. That's not the sole reason the additional funds were requested, and I don't see the judiciary as complaining about the need for the additional funds. They cited these costs, in part, as justification for greater funding. The federal courts, however, did plainly complain about the Trump OMB trying to cut their budget proposal without having actually analyzed the basis for their budget proposal.

Posted by: T. Samahon | Feb 29, 2020 9:31:49 AM

One may read the criticism of Jordan Singer ("The interdependent Third Branch") on that claim, that in fact, such budget increase, meant for the so called " Trump judges" ( and links therein):



Posted by: El roam | Feb 29, 2020 9:16:26 AM

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