Thursday, December 12, 2024

Memo for The Donald: We the People Are the Nation With Voter Remorse We're Not Your Toy

As You See Yourself: King Donald the 47th
(It Ain’t Gonna Happen, Give It Up)

The Constitution Gives Congress Not You This Power

From ProPUBLICA this astonishing worrisome and long post with this headline:

“How Trump Plans to Seize the Power of the Purse from Congress”

The second-term president likely will seek to cut off spending that lawmakers have already appropriated, setting off a constitutional struggle within the three branches of government. If he is successful, he could wield the power to punish perceived foes.

Trump is entering his second term with vows to cut a vast array of government services and a radical plan to do so. Rather than relying on his party’s control of Congress to trim the budget, Trump and his advisers intend to test an obscure legal theory holding that presidents have sweeping power to withhold funding from programs they dislike.

Trump said in a 2024 campaign video: We can simply choke off the money. For 200 years under our system of government, it was undisputed that the president had the constitutional power to stop unnecessary spending.”

His plan, known as “impoundment,” threatens to provoke a major clash over the limits of the president’s control over the budget.

The Constitution gives Congress the sole authority to appropriate the federal budget, while the role of the executive branch is to dole out the money effectively.

But Trump and his advisers are asserting that a president can unilaterally ignore Congress’ spending decisions and “impound” funds if he opposes them or deems them wasteful.

Trump’s designs on the budget are part of his administration’s larger plan to consolidate as much power in the executive branch as possible. He has pressured the Senate to go into recess so he could appoint his cabinet minus any oversight. 

Note: Republicans who will control the Senate have thus far not agreed. Trump also has plans to bring most, if not all, independent & Federal agencies (e.g. DOJ et al) under his total and direct and singular political control.

If Trump were to assert a power to kill congress’  approved programs, it would almost certainly tee up a fight in the federal courts and Congress and, experts say, could fundamentally alter Congress’ bedrock power.

Eloise Pasachoff, a Georgetown Law professor who has written about the federal budget and appropriations process says: It’s an effort to wrest the entire power of the purse away from Congress, and that is just not the constitutional design. The president doesn’t have the authority to go into the budget bit by bit and pull out the stuff he doesn’t like.”

Trump claims to have power under the Congressional Budget and Impoundment Control Act of 1974, which requires the president to spend the money Congress approves. 

That 1974 law contravenes a Nixon-era law that forbids presidents from blocking spending over policy disagreements as well as a string of federal court rulings that prevent presidents from refusing to spend money unless Congress grants them the flexibility.

Related: In an op-ed published recently, Elon Musk and his sidekick Vivek Ramaswamy, overseeing the newly created non-governmental Department of Government Efficiency (DOGE), wrote that they planned to slash federal spending by $2 trillion and fire as many as 50,000 civil servants.

Some of their efforts could offer Trump his first Supreme Court test of that post-Watergate/Nixon era Impoundment Control Act.  

The law allows exceptions, such as when the executive branch can achieve Congress’ goals by spending less, but not as a means for the president to kill programs he opposes.

Trump has decried that 1974 law as not a very good act in his campaign video saying:Bringing back impoundment will give us a crucial tool with which to obliterate the Deep State.”

Musk and Ramaswamy have seized that mantle, writing:We believe the current Supreme Court would likely side with him on this question.”

The once-obscure debate over impoundment has come into vogue in MAGA circles thanks to veterans of Trump’s first administration who remain his close allies. 

Russell Vought, Trump’s former budget director, and Mark Paoletta, who served under Vought as the Office of Management and Budget (OMB) general counsel, have worked to popularize the idea from the Trump-aligned think tank Vought founded, the Center for Renewing America.

Trump announced he had picked Vought to lead OMB again saying: “Russ knows exactly how to dismantle the Deep State and end Weaponized Government, and he will help us return Self Governance to the People.”

Vought was also a top architect of the controversial Project 2025. In private remarks to a gathering of MAGA luminaries uncovered by ProPublica, Vought boasted that he was assembling a shadow OLC (Office of Legal Counsel) so that Trump is armed on day one with the legal rationalizations to realize his agenda saying: “I don’t want President Trump having to lose a moment of time having fights in the Oval Office about whether something is legal or doable or moral.”

The prospect of Trump seizing vast control over federal spending is not merely about reducing the size of the federal government, a long-standing conservative goal, but it is also fueling new fears about his promises of vengeance, similar to his attempted power grab that led to his first impeachment when he Trump held up nearly $400 million in military aid to Ukraine while pressuring President Zelenskyy to find corruption on Joe Biden and his family (which BTW did not exist).

The GAO later ruled his actions violated the Impoundment Control Act. Pasachoff also predicted that when advantageous the incoming Trump administration will attempt to achieve the goals of impoundment without picking such a high-profile fight.

Trump has also tested piecemeal ways beyond the Ukrainian arms imbroglio to withhold federal funding as a means to punish his perceived enemies; for example, after devastating wildfires in CA and WA, in his first term, he delayed or refused to sign disaster aid declarations that would have unlocked federal relief because neither of those two states had voted for him in 2016,

He then targeted “sanctuary cities” by conditioning federal grants on local law enforcement’s willingness to cooperate with mass deportation efforts, which never materialized.

FYI: Joe Biden later was able to withdraw those two policies.

Trump and his aides claim there is a long presidential history of impoundment dating back to Thomas Jefferson. However, Zachary Price, a professor at the University of California College of the Law, San Francisco says:Congress had explicitly given presidents permission to use discretion, Jefferson, for example, decided not to spend money Congress had appropriated for gun boats — a decision the law, which appropriated money for a number not exceeding fifteen gun boats and a sum not exceeding $50,000 that authorized him to use.”

President Richard Nixon took impoundment to a new extreme, wielding the concept to gut billions of dollars from programs he simply opposed, such as highway improvements, water treatment, drug rehabilitation, and disaster relief for farmers. 

He faced overwhelming pushback both from Congress and in the courts. More than a half dozen federal judges and the Supreme Court ultimately ruled that the appropriations bills at issue did not give Nixon the flexibility to cut individual programs.

Vought and allies argue the 1974 Congress put in place are unconstitutional saying the Constitution obligates the president to:Faithfully execute the law and implies his power to forbid its enforcement.”

Note: Trump is fond of describing Article II, where this clause lives, saying it:Gives me the right to do whatever I want as president.”

The Supreme Court has never directly weighed in on whether impoundment is constitutional. However, it did throw water on that reasoning in the 1838 case of Kendall v. U.S., about a federal debt payment, writing: “To contend that the obligation imposed on the President to see the laws faithfully executed, implies a power to forbid their execution, is a novel construction of the constitution, and entirely inadmissible.”

During his cutting spree, Nixon’s own DOJ argued roughly the same. For example, William Rehnquist, the head of the Office of Legal Counsel at the time, and whom Nixon later appointed to the Supreme Court, warned in a 1969 legal memo:With respect to the suggestion that the President has a constitutional power to decline to spend appropriated funds, we must conclude that existence of such a broad power is supported by neither reason nor precedent.”

My 2 Cents: I leave this post with the famous debate words of former TX Gov. Rick Perry (R) who could not even remember or was not able to count the number of Federal agencies he would shut down by saying: “Oops” (seen here in this 2016 video debate gaffe  – remember???)

Case closed for “the Donald” too in this his weak attempt to the power of the purse away from Congress in simple terms: Read the damn law, Mr. Trump – them you can add your own Oops, too.

Thanks for stopping by.


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