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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