The Volokh Conspiracy
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Trump's Attempt to Usurp Congress's Spending Power
The White House's withholding of federal grants, impoundment plans, and other actions, are a major attack on the separation of powers.
The Trump Administration is undertaking what amounts to a wide-ranging assault on Congress's power of the purse, seeking instead to usurp authority over federal spending. Today, the Office of Management and Budget issued a memo mandating a "temporary pause" on the disbursement of nearly all federal grants allocated by Congress, with the important exception of those going "directly to individuals" (as opposed to organizations and state and local governments). As in his first term, Trump is again planning to deny federal funds to sanctuary jurisdictions unless they accept his dictates on immigration policy. Earlier, he suspended nearly all foreign aid programs, except those for Israel and Egypt. Trump also recently threatened to withhold disaster relief funds from California, unless they adopt his preferred changes to state election law. More generally, he and his underlings have far-reaching plans to "impound" federal spending they disapprove of.
In combination, this is a massive assault on Congress' power over federal spending. The Spending Clause of the Constitution is clear in giving Congress, not the president, the power to allocate federal spending. When it comes to conditions imposed on grants to state and local governments, the Supreme Court has long made clear that they too must be imposed by Congress, and meet a number of other requirements, as well. Such conditions must, among other things, 1) be enacted and clearly indicated by Congress (the executive cannot make up its own grant conditions), 2) be related to the purposes of the grant in question (e.g. - grants for health care or education cannot be conditioned on immigration enforcement), and 3) not be "coercive." Thus, for example, even Congress could not condition disaster aid on changes in state election law, because the two issues are not related.
Some might argue that many of the Administration's actions on spending are no big deal because they are only "temporary." But if the White House can "temporarily" withhold congressionally allocated funds for a month, why not for two months, or for two years? There is no logical stopping point here. And, indeed, Russell Vought, Trump's nominee to head the Office of Management and Budget, has argued that the president has a general power to "impound" congressionally authorized spending for as long as he wants.
Trump isn't the first president to impinge on Congress's spending power. Joe Biden, for example, did so by trying to forgive hundreds of billions of dollars in federal student loans, without proper congressional authorization. I condemned his action, and supported the Supreme Court's decision invalidating it. But Trump's assault on congressional spending authority is distinctive in its sweeping, all-encompassing nature. Previous presidents, at least since Richard Nixon, didn't claim any such limitless power to impound any and all federal funds.
In some cases, of course, Congress delegates some discretion to the president, on how to allocate particular types of funds. There is a longstanding debate about how broad such delegations can be before they start to violate constitutional nondelegation constraints. But that is distinct from claiming a sweeping power to withhold - even temporarily - any and all federal funds.
I believe there is way too much federal spending, and have long argued it would be good to make both states and many private organizations less dependent on various federal grants. But that goal cannot and should not be accomplished by the unconstitutional means of giving the president unilateral control over federal spending. It is dangerous to give such vast power to any single man.
Moreover, in many cases, the Trump Administration's objective is not to save money, but to use the threat of withholding pressure grant recipients into obeying the White House's dictates - as in the case of sanctuary cities and California. The goal is to further centralize power over many areas of public policy, not to put the federal government's fiscal house in order. A broad impoundment power would give the president enormous potential leverage over state and local governments, and many private organizations. In this way, Trump's impoundment and withholding plans are a threat to federalism, as well as separation of powers.
Legal scholar Zachary Price has published an excellent critique of the (weak) case for the constitutionality of impoundment. Georgetown law Prof. Steve Vladeck has a more thorough analysis and critique of the "temporary" grant funding freeze. As he notes, the measure violates the Impoundment Control Act of 1974, as well as the Constitution:
The question of whether a President can refuse to spend—to "impound"—funds Congress has appropriated for a designated purpose is one that has come up every so often in American history, albeit not on this scale. Sometimes, Congress passes statutes that give at least some spending discretion to the President. But absent such authorization, the prevailing consensus has long been that Congress's power of the purse (the Spending Clause is the very first enumerated regulatory power that the Constitution confers upon the legislature) brings with it broad power to specify the purposes for which appropriated funds are to be spent—and that a broad presidential impoundment power would be inconsistent with that constitutional authority….
Even the Justice Department's Office of Legal Counsel, which tends to err on the side of the President in these kinds of separation-of-powers disputes, concluded in 1988 [under Ronald Reagan] that the overwhelming weight of authority "is against such a broad power in the face of an express congressional directive to spend…"
Thus, even without the Impoundment Control Act, the kind of across-the-board impoundment the OMB memo is effectuating, even temporarily, should pretty plainly be unconstitutional.
But the Impoundment Control Act appears to resolve the illegality of this move beyond dispute. Enacted in response to an unprecedented volume of impoundment efforts by President Nixon, the Act creates a procedural framework within which the President can attempt to impound certain appropriated funds. Specifically, the ICA creates a fast-track procedure for Congress to consider a President's request (a "special message") to rescind funds he identifies for reasons he specifies.
Under the statute, the President may defer spending those funds for up to 45 days following such a request (which, it should be noted, he hasn't made yet). But if Congress does not approve the President's rescission request within 45 days of receiving it, then the funds must be spent….
Vladeck goes on to explain why the ICA is constitutional and why the Supreme Court should (and in his view likely will) rule against the administration if this issue comes before them.
UPDATE: A federal court has temporarily blocked Trump's grant spending freeze. This is just an "administrative" stay, so does not - so far, at least - signal the judge's position on the merits.
