The Volokh Conspiracy
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District Court Rules Trump Violated Constitution by Usurping Congress's Spending Power
The decision involved administration attempts to withhold spending on foreign aid contracts, but has much broader implications.
On Monday, US District Judge Amir Ali ruled against the Trump Administration in an important case involving control over the spending power. The court held the administration could not withhold payments from foreign aid contractors, that had been allocated by Congress. The issues in the case go far beyond the relatively modest sums of money immediately at stake. Indeed, this is just one of many cases where the administration is being sued for illegally withholding funds, in defiance of Congress. Judge Ali has a valuable summary of the broader constitutional principle involved:
The provision and administration of foreign aid has been a joint enterprise between our two political branches. That partnership is built not out of convenience, but of constitutional necessity. It reflects Congress and the Executive's "firmly established," shared constitutional responsibilities over foreign policy, Zivotofsky ex rel. Zivotofsky v. Kerry, 576 U.S. 1, 62 (2015) (Roberts, C.J., dissenting), and it reflects the division of authorities dictated by the Constitution as it relates to the appropriation of funds and executing on those appropriations. Congress, exercising its exclusive Article I power of the purse, appropriates funds to be spent toward specific foreign policy aims. The President, exercising a more general Article II power, decides how to spend those funds in faithful execution of the law….
This case involves a departure from that firmly established constitutional partnership. Here, the Executive has unilaterally deemed that funds Congress appropriated for foreign aid will not be spent. The Executive not only claims his constitutional authority to determine how to spend appropriated funds, but usurps Congress's exclusive authority to dictate whether the funds should be spent in the first place. In advancing this position, Defendants offer an unbridled view of Executive power that the Supreme Court has consistently rejected—a view that flouts multiple statutes whose constitutionality is not in question, as well as the standards of the Administrative Procedure Act ("APA"). Asserting this "vast and generally unreviewable" Executive power and diminution of Congressional power, Defendants do not cite any provision of Article I or Article II of the Constitution….
Judge Ali has a more detailed discussion of the constitutional issues later in the opinion (pp. 29-38).
I have previously covered the issues at stake in Trump's effort to usurp the spending power here. It's a massive power grab that must be blocked, even if you believe (as I do) that federal spending is way too high and needs to be cut. As noted in my earlier post, much of the administration's agenda is not really about cutting spending, but about using the threat of withholding to bend state and local governments and various private organizations to the administration's will. See also this discussion by Georgetown law Prof. Meryl Chertoff. Even if you think a Republican president should be able to wield such vast, unconstrained power, I bet you don't have similar confidence in the next Democratic one.
The actual savings achieved by DOGE cuts (about $9 billion, once we strip away errors and distortions), are relatively piddling, in the context of the gargantuan nearly $7 trillion federal budget. This isn't about balancing the budget, or even about reducing waste and fraud. It's a massive unconstitutional power grab.
For those keeping score, I have also been highly critical of Democratic administrations' attempts to usurp spending authority, as with Biden's student loan forgiveness program (rightly invalidated by the Supreme Court, in a decision I defended here). But Trump's assault on the spending power is distinctive for its sweeping nature. He doesn't just claim that vague statutes give him vast discretion over some particular spending category (as, e.g., Biden did with student payments). He's claiming a general power to "impound" any federal funds for almost any reason. That claim is badly wrong, and extremely dangerous.
Judge Ali also concluded that the Administration violated the Administrative Procedure Act. I will leave that issue to APA experts.
