Yesterday the Trump administration attempted one of the crueler plays in the Project 2025 playbook — cutting off federal funds for all federal public loans, grants, and other assistance. This resulted in hours of chaos and panic as Americans who depend on those federal funds were thrown into limbo before District of Columbia district court judge Loren L. AliKhan issued a temporary injunction against the spending freeze.
Today has resulted in even more confusion, as the Office of Management and Budget rescinded the memo that ordered the spending freeze, but then Press Secretary Karoline Leavitt “clarified” the move:
“In light of the injunction, OMB has rescinded the memo to end any confusion on federal policy created by the court ruling and the dishonest media coverage. The Executive Orders issued by the President on funding reviews remain in full force and effect and will be rigorously implemented by all agencies and departments. This action should effectively end the court case and allow the government to focus on enforcing the President’s orders on controlling federal spending. In the coming weeks and months, more executive action will continue to end the egregious waste of federal funding.”
Which is some prime doublespeak, but it does appear the Trump administration is moving forward with their plan — despite the high likelihood it’s unconstitutional.
And it’s more than just libs that give the funding cut the constitutional side-eye.
As reported by The Lever, Chief Justice John Roberts has already weighed in on the executive’s ability to unilaterally impound funds allocated by Congress and he thinks it’s a pretty bad idea. Back in 1985, Ronald Reagan’s Staff Secretary David Chew wanted to know if Reagan could impound federal funds designated by Congress. Roberts, then in the White House Counsel’s office, wrote a memo explaining his legal rationale that no, the president can’t usurp Congress’s power of the purse like that.
In that memo, Roberts declared that “the question of whether the president has such authority (to block congressionally mandated spending) is not free from doubt, but I think it clear that he has none in normal situations.”
Roberts added: “We should discourage Chew and others from considering impoundment as a viable budget planning option. Our institutional vigilance with respect to the constitutional prerogatives of the presidency requires appropriate deference to the constitutional prerogatives of the other branches, and no area seems more clearly the province of Congress than the power of the purse.”
Daniel Schuman, executive director of the American Governance Institute, thinks this should be dispositive, “John Roberts’ August 1985 memorandum clearly articulates his legal opinion that the president cannot exceed the Impoundment Control Act to impound funds in ‘normal’ situations, perhaps not in any circumstances. Roberts declares the power of the purse is the ultimate congressional prerogative. Impoundment, he warns, cannot be used to achieve ‘budget goals,’ yet the stated goal of Trump’s OMB Memorandum 25-13 is for ‘advancing presidential priorities’ on a wide array of issues. There is no reconciling Roberts’ views with Trump’s facially unlawful impoundment directive.”
Roberts isn’t the only Chief Justice with a pretty clear stance on the matter. While at the Department of Justice, William Rehnquist also thought the constitution prevented a president from making that play:
“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,” Rehnquist wrote in 1969 while serving as assistant attorney general. “It is in our view extremely difficult to formulate a constitutional theory to justify a refusal by the president to comply with a congressional directive to spend.”
Rehnquist went on to note, “It may be argued that the spending of money is inherently an executive function, but the execution of any law is, by definition, an executive function, and it seems an anomalous proposition that because the executive branch is bound to execute the laws, it is free to decline to execute them.”
All of which is encouraging for those who hope the court system will stymie Trump’s spending freeze permanently. Hopefully Roberts still feels the same about presidential power plays in 2025.
Earlier: Trump’s Budget Freeze Just Constitutional Fan Fiction
Kathryn Rubino is a Senior Editor at Above the Law, host of The Jabot podcast, and co-host of Thinking Like A Lawyer. AtL tipsters are the best, so please connect with her. Feel free to email her with any tips, questions, or comments and follow her on Twitter @Kathryn1 or Mastodon @Kathryn1@mastodon.social.
The post Chief Justice John Roberts Already Came Out Against Federal Spending Freeze appeared first on Above the Law.
Yesterday the Trump administration attempted one of the crueler plays in the Project 2025 playbook — cutting off federal funds for all federal public loans, grants, and other assistance. This resulted in hours of chaos and panic as Americans who depend on those federal funds were thrown into limbo before District of Columbia district court judge Loren L. AliKhan issued a temporary injunction against the spending freeze.
Today has resulted in even more confusion, as the Office of Management and Budget rescinded the memo that ordered the spending freeze, but then Press Secretary Karoline Leavitt “clarified” the move:
“In light of the injunction, OMB has rescinded the memo to end any confusion on federal policy created by the court ruling and the dishonest media coverage. The Executive Orders issued by the President on funding reviews remain in full force and effect and will be rigorously implemented by all agencies and departments. This action should effectively end the court case and allow the government to focus on enforcing the President’s orders on controlling federal spending. In the coming weeks and months, more executive action will continue to end the egregious waste of federal funding.”
Which is some prime doublespeak, but it does appear the Trump administration is moving forward with their plan — despite the high likelihood it’s unconstitutional.
And it’s more than just libs that give the funding cut the constitutional side-eye.
As reported by The Lever, Chief Justice John Roberts has already weighed in on the executive’s ability to unilaterally impound funds allocated by Congress and he thinks it’s a pretty bad idea. Back in 1985, Ronald Reagan’s Staff Secretary David Chew wanted to know if Reagan could impound federal funds designated by Congress. Roberts, then in the White House Counsel’s office, wrote a memo explaining his legal rationale that no, the president can’t usurp Congress’s power of the purse like that.
In that memo, Roberts declared that “the question of whether the president has such authority (to block congressionally mandated spending) is not free from doubt, but I think it clear that he has none in normal situations.”
Roberts added: “We should discourage Chew and others from considering impoundment as a viable budget planning option. Our institutional vigilance with respect to the constitutional prerogatives of the presidency requires appropriate deference to the constitutional prerogatives of the other branches, and no area seems more clearly the province of Congress than the power of the purse.”
Daniel Schuman, executive director of the American Governance Institute, thinks this should be dispositive, “John Roberts’ August 1985 memorandum clearly articulates his legal opinion that the president cannot exceed the Impoundment Control Act to impound funds in ‘normal’ situations, perhaps not in any circumstances. Roberts declares the power of the purse is the ultimate congressional prerogative. Impoundment, he warns, cannot be used to achieve ‘budget goals,’ yet the stated goal of Trump’s OMB Memorandum 25-13 is for ‘advancing presidential priorities’ on a wide array of issues. There is no reconciling Roberts’ views with Trump’s facially unlawful impoundment directive.”
Roberts isn’t the only Chief Justice with a pretty clear stance on the matter. While at the Department of Justice, William Rehnquist also thought the constitution prevented a president from making that play:
“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,” Rehnquist wrote in 1969 while serving as assistant attorney general. “It is in our view extremely difficult to formulate a constitutional theory to justify a refusal by the president to comply with a congressional directive to spend.”
Rehnquist went on to note, “It may be argued that the spending of money is inherently an executive function, but the execution of any law is, by definition, an executive function, and it seems an anomalous proposition that because the executive branch is bound to execute the laws, it is free to decline to execute them.”
All of which is encouraging for those who hope the court system will stymie Trump’s spending freeze permanently. Hopefully Roberts still feels the same about presidential power plays in 2025.
Earlier: Trump’s Budget Freeze Just Constitutional Fan Fiction
Kathryn Rubino is a Senior Editor at Above the Law, host of The Jabot podcast, and co-host of Thinking Like A Lawyer. AtL tipsters are the best, so please connect with her. Feel free to email her with any tips, questions, or comments and follow her on Twitter @Kathryn1 or Mastodon @[email protected].
