{"id":102079,"date":"2025-01-28T16:04:12","date_gmt":"2025-01-29T00:04:12","guid":{"rendered":"https:\/\/xira.com\/p\/2025\/01\/28\/trumps-budget-freeze-just-constitutional-fan-fiction\/"},"modified":"2025-01-28T16:04:12","modified_gmt":"2025-01-29T00:04:12","slug":"trumps-budget-freeze-just-constitutional-fan-fiction","status":"publish","type":"post","link":"https:\/\/xira.com\/p\/2025\/01\/28\/trumps-budget-freeze-just-constitutional-fan-fiction\/","title":{"rendered":"Trump\u2019s Budget Freeze Just Constitutional Fan Fiction"},"content":{"rendered":"
\"\"
(Photo by Win McNamee\/Getty Images)<\/figcaption><\/figure>\n

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, \u201cOh\u2026 I don\u2019t think you\u2019re supposed to do it that way.\u201d<\/p>\n

And \u201cI\u2019m pretty sure that would hurt.\u201d<\/p>\n

The latest vector of government chaos came in the form of an Office of Management and Budget memo vaguely requiring a complete spending freeze<\/a> on all federal public loans, grants, and other assistance by 5 p.m. tonight. Acting Director Matt Vaeth\u2019s memo \u2014 which no one seriously believes he wrote<\/a> \u2014 cited the more than $3 trillion spent last year on \u201cFederal financial assistance, such as grants and loans\u201d before instructing agencies that the administration wants spending limited to its goals including \u201cending \u2018wokeness\u2019 and the weaponization of government, promoting efficiency in government, and Making America Healthy Again.\u201d <\/p>\n

And since the last bit really means \u201cMaking America Catch Polio Again,\u201d the memo instantly cut off Medicaid in every state<\/a>. <\/p>\n

\u201cThe 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,\u201d seems like the 4chan post of a lunatic, but is instead an edict from the federal organ overseeing public funding. <\/p>\n

In case you\u2019re wondering, the 1974 Impoundment Control Act (ICA), yet another good governance statute rooted in America\u2019s 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<\/a> and that presidents can take money allocated by Congress and say, \u201cNah, I\u2019m good. I\u2019ll keep this one.\u201d<\/p>\n

But Paoletta is riding high on America\u2019s most powerful hallucinogen: the Unitary Executive Theory:<\/p>\n

\n

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\u2019s conclusive and preclusive authorities the Court sets out in the\u00a0Trump v. United States\u00a0<\/em>opinion.\u00a0<\/p>\n<\/blockquote>\n

Remember when John Roberts tried to play off Trump v. United States<\/em> as though it wouldn\u2019t be read to bestow monarchical powers? Good times!<\/p>\n

Paoletta argues that \u201cIf the President can decide which laws to enforce, he can decide which funds to spend.\u201d A cute analogy to be sure, but it\u2019s much more like telling the landlord you don\u2019t believe in rent because of woke. Sure, you can<\/em> do that, but the consequences are going to catch up to you fast.<\/p>\n

In A Primer on the Impoundment Control Act<\/a><\/em>, 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 \u2014 or does nothing \u2014 the funds must be released. If the executive branch is merely trying to delay spending \u2014 the excuse emerging throughout the day \u2014 it must also report to Congress first and abide by some key restrictions:<\/p>\n

\n

Though earlier versions of the statute allowed a broader range of deferrals, the ICA today allows deferrals only \u201cto provide for contingencies,\u201d \u201cto achieve savings made possible by or through changes in requirements or greater efficiency of operations,\u201d or \u201cas specifically provided by law.\u201d 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 \u201cprogrammatic\u201d rather than \u201cpolicy\u201d reasons has emerged as a recurrent point of controversy.<\/p>\n<\/blockquote>\n

Of course, asking Trump to follow statutory procedure is like asking a puppy to do your taxes \u2014 a lot of chaos and incontinence.<\/p>\n

Paoletta\u2019s batshit read that Article II gives the President unilateral authority to ignore congressional appropriations doesn\u2019t even make sense in the context of the president\u2019s 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.<\/p>\n

In fact, presidents tried to assert a power to halt specific projects while giving Congress the power to override that veto \u2014 a concession Paoletta isn\u2019t making \u2014 and the Supreme Court laughed and laughed<\/em>.<\/p>\n

\n

It is also worth noting that Congress attempted to establish an additional form of impoundment authority in the\u00a0Line Item Veto Act of 1996<\/a>. That statute allowed presidents to cancel certain spending items within five days of an appropriation\u2019s enactment, subject to a congressional override through expedited new legislation. The Supreme Court, however, held in\u00a0Clinton v. New York<\/em><\/a>\u00a0that 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\u2019s \u201ctraditional authority to decline to spend appropriated funds,\u201d it rejected the government\u2019s argument that this practice supported the Line Item Veto Act\u2019s cancellation power. Unlike all prior statutes invoked by the government, this one, the majority reasoned, gave \u201cthe President the unilateral power to change the text of duly enacted statutes.\u201d<\/p>\n<\/blockquote>\n

Freezing federal disbursements hurts real people \u2014 states, businesses, and individuals waiting on grants and loans. These delays ripple through the economy, affecting everything from infrastructure projects to education funding. \u201cAnd while Paoletta couldn\u2019t care less about the human fallout, Congress \u2014 well, at least the members who occasionally remember they represent real people \u2014 might.\u201d<\/p>\n

A Primer on the Impoundment Control Act<\/a> [Lawfare]<\/p>\n

\n

\"Headshot\"Joe Patrice<\/a>\u00a0is a senior editor at Above the Law and co-host of Thinking Like A Lawyer<\/a>. Feel free to\u00a0email<\/a> any tips, questions, or comments. Follow him on\u00a0Twitter<\/a>\u00a0or Bluesky<\/a> if you\u2019re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search<\/a>.<\/em><\/strong><\/p>\n

The post Trump\u2019s Budget Freeze Just Constitutional Fan Fiction<\/a> appeared first on Above the Law<\/a>.<\/p>\n

\"\"
(Photo by Win McNamee\/Getty Images)<\/figcaption><\/figure>\n

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, \u201cOh\u2026 I don\u2019t think you\u2019re supposed to do it that way.\u201d<\/p>\n

And \u201cI\u2019m pretty sure that would hurt.\u201d<\/p>\n

The latest vector of government chaos came in the form of an Office of Management and Budget memo vaguely requiring a complete spending freeze<\/a> on all federal public loans, grants, and other assistance by 5 p.m. tonight. Acting Director Matt Vaeth\u2019s memo \u2014 which no one seriously believes he wrote<\/a> \u2014 cited the more than $3 trillion spent last year on \u201cFederal financial assistance, such as grants and loans\u201d before instructing agencies that the administration wants spending limited to its goals including \u201cending \u2018wokeness\u2019 and the weaponization of government, promoting efficiency in government, and Making America Healthy Again.\u201d <\/p>\n

And since the last bit really means \u201cMaking America Catch Polio Again,\u201d the memo instantly cut off Medicaid in every state<\/a>. <\/p>\n

\u201cThe 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,\u201d seems like the 4chan post of a lunatic, but is instead an edict from the federal organ overseeing public funding. <\/p>\n

In case you\u2019re wondering, the 1974 Impoundment Control Act (ICA), yet another good governance statute rooted in America\u2019s 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<\/a> and that presidents can take money allocated by Congress and say, \u201cNah, I\u2019m good. I\u2019ll keep this one.\u201d<\/p>\n

But Paoletta is riding high on America\u2019s most powerful hallucinogen: the Unitary Executive Theory:<\/p>\n

\n

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\u2019s conclusive and preclusive authorities the Court sets out in the\u00a0Trump v. United States\u00a0<\/em>opinion.\u00a0<\/p>\n<\/blockquote>\n

Remember when John Roberts tried to play off Trump v. United States<\/em> as though it wouldn\u2019t be read to bestow monarchical powers? Good times!<\/p>\n

Paoletta argues that \u201cIf the President can decide which laws to enforce, he can decide which funds to spend.\u201d A cute analogy to be sure, but it\u2019s much more like telling the landlord you don\u2019t believe in rent because of woke. Sure, you can<\/em> do that, but the consequences are going to catch up to you fast.<\/p>\n

In A Primer on the Impoundment Control Act<\/a><\/em>, 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 \u2014 or does nothing \u2014 the funds must be released. If the executive branch is merely trying to delay spending \u2014 the excuse emerging throughout the day \u2014 it must also report to Congress first and abide by some key restrictions:<\/p>\n

\n

Though earlier versions of the statute allowed a broader range of deferrals, the ICA today allows deferrals only \u201cto provide for contingencies,\u201d \u201cto achieve savings made possible by or through changes in requirements or greater efficiency of operations,\u201d or \u201cas specifically provided by law.\u201d 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 \u201cprogrammatic\u201d rather than \u201cpolicy\u201d reasons has emerged as a recurrent point of controversy.<\/p>\n<\/blockquote>\n

Of course, asking Trump to follow statutory procedure is like asking a puppy to do your taxes \u2014 a lot of chaos and incontinence.<\/p>\n

Paoletta\u2019s batshit read that Article II gives the President unilateral authority to ignore congressional appropriations doesn\u2019t even make sense in the context of the president\u2019s 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.<\/p>\n

In fact, presidents tried to assert a power to halt specific projects while giving Congress the power to override that veto \u2014 a concession Paoletta isn\u2019t making \u2014 and the Supreme Court laughed and laughed<\/em>.<\/p>\n

\n

It is also worth noting that Congress attempted to establish an additional form of impoundment authority in the\u00a0Line Item Veto Act of 1996<\/a>. That statute allowed presidents to cancel certain spending items within five days of an appropriation\u2019s enactment, subject to a congressional override through expedited new legislation. The Supreme Court, however, held in\u00a0Clinton v. New York<\/em><\/a>\u00a0that 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\u2019s \u201ctraditional authority to decline to spend appropriated funds,\u201d it rejected the government\u2019s argument that this practice supported the Line Item Veto Act\u2019s cancellation power. Unlike all prior statutes invoked by the government, this one, the majority reasoned, gave \u201cthe President the unilateral power to change the text of duly enacted statutes.\u201d<\/p>\n<\/blockquote>\n

Freezing federal disbursements hurts real people \u2014 states, businesses, and individuals waiting on grants and loans. These delays ripple through the economy, affecting everything from infrastructure projects to education funding. \u201cAnd while Paoletta couldn\u2019t care less about the human fallout, Congress \u2014 well, at least the members who occasionally remember they represent real people \u2014 might.\u201d<\/p>\n

A Primer on the Impoundment Control Act<\/a> [Lawfare]<\/p>\n

\n

\"Headshot\"Joe Patrice<\/a>\u00a0is a senior editor at Above the Law and co-host of Thinking Like A Lawyer<\/a>. Feel free to\u00a0email<\/a> any tips, questions, or comments. Follow him on\u00a0Twitter<\/a>\u00a0or Bluesky<\/a> if you\u2019re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search<\/a>.<\/em><\/strong><\/p>\n","protected":false},"excerpt":{"rendered":"

(Photo by Win McNamee\/Getty Images) 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, \u201cOh\u2026 I don\u2019t think you\u2019re supposed to do it that way.\u201d And \u201cI\u2019m pretty sure that would hurt.\u201d The latest […]<\/p>\n","protected":false},"author":3,"featured_media":102080,"comment_status":"","ping_status":"","sticky":false,"template":"","format":"standard","meta":{"_et_pb_use_builder":"","_et_pb_old_content":"","_et_gb_content_width":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[16],"tags":[],"class_list":["post-102079","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-above_the_law"],"jetpack_featured_media_url":"https:\/\/i0.wp.com\/xira.com\/p\/wp-content\/uploads\/2025\/01\/Headshot-300x200-rZG8e4.jpeg?fit=300%2C200&ssl=1","jetpack_sharing_enabled":true,"_links":{"self":[{"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/posts\/102079","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/users\/3"}],"replies":[{"embeddable":true,"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/comments?post=102079"}],"version-history":[{"count":0,"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/posts\/102079\/revisions"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/media\/102080"}],"wp:attachment":[{"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/media?parent=102079"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/categories?post=102079"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/tags?post=102079"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}