The Trump administration continues pumping out executive action at the pace rivaling a trashy romance novel pulp house. And, like the trashiest of romance novels, each installment makes you go, “Oh… I don’t think you’re supposed to do it that way.”
And “I’m pretty sure that would hurt.”
The latest vector of government chaos came in the form of an Office of Management and Budget memo vaguely requiring a complete spending freeze on all federal public loans, grants, and other assistance by 5 p.m. tonight. Acting Director Matt Vaeth’s memo — which no one seriously believes he wrote — cited the more than $3 trillion spent last year on “Federal financial assistance, such as grants and loans” before instructing agencies that the administration wants spending limited to its goals including “ending ‘wokeness’ and the weaponization of government, promoting efficiency in government, and Making America Healthy Again.”
And since the last bit really means “Making America Catch Polio Again,” the memo instantly cut off Medicaid in every state.
“The use of Federal resources to advance Marxist equity, transgenderism, and green new deal social engineering policies is a waste of taxpayer dollars that does not improve the day-to-day lives of those we serve,” seems like the 4chan post of a lunatic, but is instead an edict from the federal organ overseeing public funding.
In case you’re wondering, the 1974 Impoundment Control Act (ICA), yet another good governance statute rooted in America’s Nixon hangover, explicitly bars refusing to spend congressional appropriations like this. But once and future OMB General Counsel Mark Paoletta believes the power of the purse is more of a suggestion and that presidents can take money allocated by Congress and say, “Nah, I’m good. I’ll keep this one.”
But Paoletta is riding high on America’s most powerful hallucinogen: the Unitary Executive Theory:
The power of impoundment is one such executive power vested in the President alone by Article II of the Constitution. As discussed below, this power stems from the President’s conclusive and preclusive authorities the Court sets out in the Trump v. United States opinion.
Remember when John Roberts tried to play off Trump v. United States as though it wouldn’t be read to bestow monarchical powers? Good times!
Paoletta argues that “If the President can decide which laws to enforce, he can decide which funds to spend.” A cute analogy to be sure, but it’s much more like telling the landlord you don’t believe in rent because of woke. Sure, you can do that, but the consequences are going to catch up to you fast.
In A Primer on the Impoundment Control Act, Professor Zachary Price blows up this fantasy. The ICA explains that if the president tries to withhold funds altogether, the executive has to notify Congress, which then has 45 days to agree. If Congress says no — or does nothing — the funds must be released. If the executive branch is merely trying to delay spending — the excuse emerging throughout the day — it must also report to Congress first and abide by some key restrictions:
Though earlier versions of the statute allowed a broader range of deferrals, the ICA today allows deferrals only “to provide for contingencies,” “to achieve savings made possible by or through changes in requirements or greater efficiency of operations,” or “as specifically provided by law.” The upshot is that, absent specific statutory authority, executive officials are not supposed to delay spending based on disagreement with the policy underlying it; they can instead make deferrals only to address practical obstacles or to employ funds more efficiently. As explained below, however, the scope of any authority to delay spending for “programmatic” rather than “policy” reasons has emerged as a recurrent point of controversy.
Of course, asking Trump to follow statutory procedure is like asking a puppy to do your taxes — a lot of chaos and incontinence.
Paoletta’s batshit read that Article II gives the President unilateral authority to ignore congressional appropriations doesn’t even make sense in the context of the president’s constitutional role in signing or vetoing statutes. If Congress approves spending on a specific appropriation, the president vetoes it, and Congress overrides that veto, Paoletta would say the president could just ignore it anyway.
In fact, presidents tried to assert a power to halt specific projects while giving Congress the power to override that veto — a concession Paoletta isn’t making — and the Supreme Court laughed and laughed.
It is also worth noting that Congress attempted to establish an additional form of impoundment authority in the Line Item Veto Act of 1996. That statute allowed presidents to cancel certain spending items within five days of an appropriation’s enactment, subject to a congressional override through expedited new legislation. The Supreme Court, however, held in Clinton v. New York that this cancellation power amounted to an unconstitutional line-item veto (meaning a power to veto particular clauses in a law rather than the bill as a whole). Although the Court acknowledged the president’s “traditional authority to decline to spend appropriated funds,” it rejected the government’s argument that this practice supported the Line Item Veto Act’s cancellation power. Unlike all prior statutes invoked by the government, this one, the majority reasoned, gave “the President the unilateral power to change the text of duly enacted statutes.”
Freezing federal disbursements hurts real people — states, businesses, and individuals waiting on grants and loans. These delays ripple through the economy, affecting everything from infrastructure projects to education funding. “And while Paoletta couldn’t care less about the human fallout, Congress — well, at least the members who occasionally remember they represent real people — might.”
A Primer on the Impoundment Control Act [Lawfare]
Joe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter or Bluesky if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.
The post Trump’s Budget Freeze Just Constitutional Fan Fiction appeared first on Above the Law.
The Trump administration continues pumping out executive action at the pace rivaling a trashy romance novel pulp house. And, like the trashiest of romance novels, each installment makes you go, “Oh… I don’t think you’re supposed to do it that way.”
And “I’m pretty sure that would hurt.”
The latest vector of government chaos came in the form of an Office of Management and Budget memo vaguely requiring a complete spending freeze on all federal public loans, grants, and other assistance by 5 p.m. tonight. Acting Director Matt Vaeth’s memo — which no one seriously believes he wrote — cited the more than $3 trillion spent last year on “Federal financial assistance, such as grants and loans” before instructing agencies that the administration wants spending limited to its goals including “ending ‘wokeness’ and the weaponization of government, promoting efficiency in government, and Making America Healthy Again.”
And since the last bit really means “Making America Catch Polio Again,” the memo instantly cut off Medicaid in every state.
“The use of Federal resources to advance Marxist equity, transgenderism, and green new deal social engineering policies is a waste of taxpayer dollars that does not improve the day-to-day lives of those we serve,” seems like the 4chan post of a lunatic, but is instead an edict from the federal organ overseeing public funding.
In case you’re wondering, the 1974 Impoundment Control Act (ICA), yet another good governance statute rooted in America’s Nixon hangover, explicitly bars refusing to spend congressional appropriations like this. But once and future OMB General Counsel Mark Paoletta believes the power of the purse is more of a suggestion and that presidents can take money allocated by Congress and say, “Nah, I’m good. I’ll keep this one.”
But Paoletta is riding high on America’s most powerful hallucinogen: the Unitary Executive Theory:
The power of impoundment is one such executive power vested in the President alone by Article II of the Constitution. As discussed below, this power stems from the President’s conclusive and preclusive authorities the Court sets out in the Trump v. United States opinion.
Remember when John Roberts tried to play off Trump v. United States as though it wouldn’t be read to bestow monarchical powers? Good times!
Paoletta argues that “If the President can decide which laws to enforce, he can decide which funds to spend.” A cute analogy to be sure, but it’s much more like telling the landlord you don’t believe in rent because of woke. Sure, you can do that, but the consequences are going to catch up to you fast.
In A Primer on the Impoundment Control Act, Professor Zachary Price blows up this fantasy. The ICA explains that if the president tries to withhold funds altogether, the executive has to notify Congress, which then has 45 days to agree. If Congress says no — or does nothing — the funds must be released. If the executive branch is merely trying to delay spending — the excuse emerging throughout the day — it must also report to Congress first and abide by some key restrictions:
Though earlier versions of the statute allowed a broader range of deferrals, the ICA today allows deferrals only “to provide for contingencies,” “to achieve savings made possible by or through changes in requirements or greater efficiency of operations,” or “as specifically provided by law.” The upshot is that, absent specific statutory authority, executive officials are not supposed to delay spending based on disagreement with the policy underlying it; they can instead make deferrals only to address practical obstacles or to employ funds more efficiently. As explained below, however, the scope of any authority to delay spending for “programmatic” rather than “policy” reasons has emerged as a recurrent point of controversy.
Of course, asking Trump to follow statutory procedure is like asking a puppy to do your taxes — a lot of chaos and incontinence.
Paoletta’s batshit read that Article II gives the President unilateral authority to ignore congressional appropriations doesn’t even make sense in the context of the president’s constitutional role in signing or vetoing statutes. If Congress approves spending on a specific appropriation, the president vetoes it, and Congress overrides that veto, Paoletta would say the president could just ignore it anyway.
In fact, presidents tried to assert a power to halt specific projects while giving Congress the power to override that veto — a concession Paoletta isn’t making — and the Supreme Court laughed and laughed.
It is also worth noting that Congress attempted to establish an additional form of impoundment authority in the Line Item Veto Act of 1996. That statute allowed presidents to cancel certain spending items within five days of an appropriation’s enactment, subject to a congressional override through expedited new legislation. The Supreme Court, however, held in Clinton v. New York that this cancellation power amounted to an unconstitutional line-item veto (meaning a power to veto particular clauses in a law rather than the bill as a whole). Although the Court acknowledged the president’s “traditional authority to decline to spend appropriated funds,” it rejected the government’s argument that this practice supported the Line Item Veto Act’s cancellation power. Unlike all prior statutes invoked by the government, this one, the majority reasoned, gave “the President the unilateral power to change the text of duly enacted statutes.”
Freezing federal disbursements hurts real people — states, businesses, and individuals waiting on grants and loans. These delays ripple through the economy, affecting everything from infrastructure projects to education funding. “And while Paoletta couldn’t care less about the human fallout, Congress — well, at least the members who occasionally remember they represent real people — might.”
A Primer on the Impoundment Control Act [Lawfare]
Joe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter or Bluesky if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.
