Trump risks legal clashes in plans to not spend appropriations

The incoming Trump administration's plan to slash federal spending would have to overcome decades of court decisions and likely face a Supreme Court showdown, experts say, a legal headwind highlighted by President-elect Donald Trump’s choice of deputy director for the Office of Management and Budget.

Trump and allies, including OMB director pick Russ Vought and external advisers Elon Musk and Vivek Ramaswamy, have argued the president can unilaterally choose not to spend funds appropriated by Congress — a process known as impoundment.

A 1974 law called the Impoundment Control Act mandates that presidents spend funds appropriated by Congress. A report published by the Vought-led Center for Renewing America argued that the appropriations clause only put a “ceiling” on federal funding and said the 1974 law was an “unprecedented break” with the nation’s history. The report said that “for much of the Nation’s history, such a congressional power was so beyond the realm of constitutional permissibility that it was almost never even asserted.”

Musk and Ramaswamy, tapped to lead the so-called Department of Government Efficiency, argued in a Wall Street Journal op-ed that the 1974 law is unconstitutional and “we believe the current Supreme Court would likely side with him on this question.” And Trump in a campaign video last year said he intends to use the “long-recognized impoundment power to squeeze the bloated federal bureaucracy for massive savings.” For decades courts have ruled that presidents cannot ignore Congress’ power to appropriate funds and decide on their own not to spend them, experts said. Nicholas Bagley, a law professor at the University of Michigan, said that Supreme Court decisions dating back as far as 1838 underline the president’s inability to unilaterally refuse to spend the money Congress appropriated.

“It’s difficult for me to emphasize, without me sounding like a crazy person, how outlandish this is,” Bagley said. William Ford, a policy advocate at the advocacy group Protect Democracy, said that presidents have routinely lost court battles over efforts to withhold funding since the passage of the Impoundment Control Act. “And so what Trump and his team are now contemplating doing is completely out of step with what every other president has done since 1974. It’s out of step with what they did during their first term.

Their extreme arguments, in our view, don’t hold water,” Ford said. William Galston, a senior fellow at the Brookings Institution, said that an effort to cut programs entirely to reach the savings Musk and others have discussed — around $2 trillion — would run straight into the Supreme Court.

“The impoundment that he and his senior aides have been talking about is flatly against the law and the only way he can proceed legally is to overturn the law,” Galston said. Upholding that sort of decision would be “declaring open season on the other branches of government, especially Congress,” Galston said. “We’re talking about an entirely different constitutional order if the president can treat the Congress’ power of the purse as an advisory opinion.”

Advocates, the Government Accountability Office, and members of Congress have pushed presidents to continue spending money on programs they may disagree with. That includes Rep. Dan Bishop, Trump’s choice for OMB deputy director. He was one of dozens of Republicans who argued the Biden administration violated the Impoundment Control Act through decisions that slow-walked construction of a wall on the US-Mexico border.

Bishop signed onto letters to the GAO urging the agency to find that Biden’s actions violated that law, co-sponsored a resolution to censure President Joe Biden for not doing so and co-sponsored legislation mandating the administration spend the funds.

Earlier this year, the GAO found that the Biden administration’s delays were “programmatic” and not impoundments in violation of the law, the agency said in a statement. Rather than unilateral decisions to withhold funds, the delays were meant to deal with concerns about the impact on local communities and the environment from the construction. Bishop also signed onto an amicus brief opposing Biden’s effort to cancel student loans for millions of borrowers, which doesn’t explicitly mention the Impoundment Control Act but argues a president shouldn’t be able to use an interpretation of a law to step on congressional control on spending.

The brief argued that the Biden administration should not be allowed to make such an major decision without a clear statement from Congress, and doing otherwise would risk “significant conflict between the legislative and executive branches” of government over one of Congress’ core powers.

Ford said the GAO is one of numerous entities that could sue or take other actions to force Trump’s hand. Texas and Missouri have sued the Biden administration to force it to spend funds on the border wall. In the first Trump administration, numerous organizations and local governments successfully sued to reinstate Department of Health and Human Services grants that HHS tried to cancel.

“There are a ton of other people who can and would get into court to fight this,” Ford said. Under Democratic control, the House itself took the first Trump administration to court over spending issues in 2019. Although the suit did not explicitly involve the 1974 law, the House argued that Trump violated the Appropriations Clause of the Constitution and usurped Congress’ spending power when he moved more than $8 billion in other funds for use in border wall construction. The House even won an appellate court ruling in its favor before the Supreme Court tossed the case after the Biden administration stopped using the money for wall construction.

A straight refusal to spend funds appropriated by Congress could get the incoming Trump administration slapped by the courts, but Bagley said other ways of delaying spending could have more effect. Congress has passed thousands of laws placing various restrictions on government decisions, Bagley said, allowing for numerous potential roadblocks to federal spending. “If the president said ‘I have to abide by these various rules before I take any federal action that may impact spending,’ it is a lot harder to get that kind of anti-impoundment declaration off the ground in that context,” Bagley said. “It would be harder for the courts to engage with and enforce. It doesn’t mean that these checks won’t work at all.”

Outgoing Senate Budget Chairman Sheldon Whitehouse, D-R.I., called impoundment “a pretty old battleline for the House and Senate, entirely apart from political parties.”

“I think he’s going to run into a lot of pushback,” Whitehouse said.