With Trump's funding freeze paused, can he just not spend instead? That's the point. | Opinion
President Donald Trump is ignoring established law to take control of federal spending and Congress is just letting it happen.
President Donald Trump’s spending freeze has been blocked by courts, marking the first blow to Trump’s plan to use executive power to curb spending.
The main issue hindering the Trump administration’s plan, though, is that the president is obligated to spend funds appropriated by Congress. That's something Trump has been openly hostile toward.
The Trump administration is once again pushing the boundaries of the law to get a case to the Supreme Court. Unfortunately for him, it is unlikely the court will rule in his favor. It was one of at least two times a judge ruled against Trump. It probably won't be the last.
Trump cannot outright refuse to spend, but he will keep trying
For those unfamiliar with the U.S. budget process, Congress has the power of the purse, meaning lawmakers get to decide how much is spent and on what. The president’s responsibility is to facilitate that spending and ensure funding reaches its intended destination.
You may ask, “What if the president simply chooses not to spend money on purposes he dislikes?”
This practice, referred to as impoundment, may be unconstitutional and has been addressed by legislation. The Impoundment Control Act (ICA) requires the president to notify Congress of a proposed withholding of funds for 45 days, and Congress must affirm the impoundment if funds are to be withheld.
However, an important caveat is that the act does not obligate Congress to provide any feedback at all. If Congress simply ignores the impoundment request, the funds must be released after 45 days regardless. Presidential impoundment under the ICA, therefore, functions more as a recommendation to Congress.
Prior to becoming president for a second term, Trump hinted that his administration would have a hostile stance toward the ICA, and his actions thus far indicate that they are attempting to get a case addressing it to the Supreme Court.
Congress should be voting on these presidential impoundments in a timely manner, as the process is intended to function. However, lawmakers have no incentive to do so. For the GOP-controlled Congress, this system is working in its favor, and Republicans can allow Trump to stall funding for 45 days at a time.
However, funds being withheld for 45 days with no congressional action can cause problems for agencies that rely on appropriations. Some experts have suggested that Congress should amend the ICA to require lawmakers to vote one way or the other on presidential impoundments, but legislators typically aren't too keen on creating more work for themselves.
Impoundment is likely to be a question for the Supreme Court
Judges were quick to halt Trump’s initial spending freeze, and swift legal action would likely be taken if Trump refused to spend further funds.
Per usual, the likely outcome is that the Supreme Court will be tasked with sorting out the mess between Congress and the executive. So Trump can insist that he has the power to withhold funds as long as Congress continues to do nothing.
Democratic lawmakers have argued that a Supreme Court case called Train v. City of New York has already ruled presidential impoundment unconstitutional, even without the Impoundment Control Act. The Supreme Court ruled unanimously in 1975 that the head of the Environmental Protection Agency could not withhold funds allotted to states by Congress, serving as an important precedent.
There is another reason to believe that the Supreme Court is likely to disagree with Trump’s assertion that the president has a constitutional right to impound.
In a 2013 opinion, then-Judge Brett Kavanaugh wrote that “a President sometimes has policy reasons for wanting to spend less than the full amount appropriated by Congress for a particular project or program. But in those circumstances, even the President does not have unilateral authority to refuse to spend the funds. Instead, the President must propose the rescission of funds, and Congress then may decide whether to approve a rescission bill.”
Chief Justice John Roberts expressed sympathy for this position in a 1985 memo but not in an actual case.
Along with the liberal justices, and the pervading historical consensus among the conservative justices, the Supreme Court is unlikely to find that Trump has the authority to blatantly withhold funds that have been appropriated by Congress, if a case arises to them.
Once again, the Supreme Court is likely to have to deal with Trump’s attempts to circumvent Congress. The court is likely to pass judgment telling Congress to do its job in curtailing spending and telling Trump he does not have power over the purse.
Dace Potas is an opinion columnist for Paste BN and a graduate of DePaul University with a degree in political science.