Every day seems to bring more blatantly unconstitutional acts by President Trump. On Monday, the most egregious was his announcement that he is freezing the spending on all federal grants and loans beginning at 5 p.m. Eastern on Tuesday. California and six other states are suing to block the order, and on Tuesday afternoon a judge in the District of Columbia temporarily stopped it from going into effect.
Although the exact terms of the order are unclear and it appears that it will not affect Social Security or Medicare, it could affect trillions of dollars of federal spending that has been approved by Congress and appropriated by federal statute. The president has no authority to do this under the Constitution, under which the legislative branch holds the power of the purse.
Indeed, presidential interference with Congress’ budgeted spending violates a federal statute, the Congressional Budget and Impoundment Control Act of 1974. When a federal statute has been adopted that appropriates money, the president has no authority to refuse to spend it.
Early in American history, Thomas Jefferson claimed the power to “impound” and refuse to spend money appropriated by Congress. Other presidents occasionally did this, though it always was of dubious constitutionality.
No president attempted to use it extensively until President Nixon. His impoundments were challenged in courts and almost without exception were deemed illegal. In Train vs. City of New York in 1975, the Supreme Court ruled that Nixon lacked the authority to impound federal monetary assistance under the Federal Water Pollution Control Act Amendments of 1972, a program that he had vetoed and for which Congress had overridden his veto. The court unanimously held that the law gave Nixon no power to impound funds appropriated by federal statute.
The issue of impoundment rarely resurfaced in the last half century because Congress, in 1974, passed a statute, the Impoundment Control Act, that outlaws such presidential actions. The act was adopted in reaction to the repeated impoundments by the Nixon administration and actually was signed into law by Nixon.
The law forbids presidential impoundment of funds, but under certain circumstances allows a brief delay and gives the president means to ask Congress to reconsider an appropriation, known as rescission. If the president wishes to rescind spending, he must send a special message to Congress identifying the amount of the proposed rescission, the reasons for it and the budgetary, economic and programmatic effects of the rescission. After the president sends such a message to Congress, he may withhold funding for up to 45 days. But if Congress does not approve the rescission within this time period, any withheld funds must be disbursed. The act also allows the president to defer federal spending in other very narrow circumstances, but again with required notifications to Congress.
Trump has not made the required notifications to Congress, and so his order this week to halt spending is patently illegal.
In his first term, Trump also engaged in illegal impoundment when he withheld military aid that had been appropriated to Ukraine. Trump was pressuring its president, Volodymyr Zelensky, to investigate Joe Biden. This is what led to the first impeachment of Trump by the House of Representatives.
Now in his second term, as he freezes the spending of an enormous amount of federal money that has been appropriated by Congress, Trump is once again engaging in illegal and unconstitutional impoundment of funds. His position is that the Impoundment Control Act is itself unconstitutional. He said this as a presidential candidate. In November, the president-elect’s cost cutters Elon Musk and Vivek Ramaswamy wrote an op-ed in the Wall Street Journal saying this. More recently, Russell Vought, the nominee to lead the Office of Management and Budget, took this position at his confirmation hearings.
This is just wrong. It assumes that the president, not Congress, has control over federal spending. There is nothing in the Constitution to support this. In fact, the framers made a deliberate choice to ensure that the branch of government most accountable to the people — the legislative — was the one responsible for spending money. Moreover, as Justice Robert Jackson observed in his landmark 1952 Supreme Court opinion about separation of powers in Youngstown Sheet and Tube Co. vs. Sawyer, the president’s power is at its lowest ebb when he is violating a federal law. The Impoundment Control Act is a clearly constitutional law to protect Congress’ control over federal spending.
But even apart from the Impoundment Control Act, impoundment is unconstitutional. On many occasions, the Supreme Court has said that it violates separation of powers for one part of government to interfere with or usurp the powers of another branch. This is why the court declared unconstitutional President Truman’s seizure of steel mills and why it unanimously ruled against Nixon’s claim of a right to invoke executive privilege, which would have kept a federal court from having necessary evidence in a criminal case.
It is imperative that a federal court quickly find Trump’s huge impoundment of federal funds to be unconstitutional as usurping Congress’ spending power, just as a court last week immediately invalidated his executive order to end birthright citizenship. It is truly chilling to see the breadth of power that Trump is attempting to claim.
Erwin Chemerinsky, a contributing writer to Opinion, is dean of the UC Berkeley Law School.