Trump’s Spending Freeze Is Worse Than a Mistake. It’s a Crime.

On the same day that all 11 GOP members of the Senate Budget Committee voted to advance the nomination of Trump OMB pick Russ Vought, some of their Republican colleagues rang the alarm bell about the impact of the President’s wide-ranging federal spending freeze. As one anonymous GOP Senator told The Hill, “Republicans were starting to hit the ceiling.” Completely surprised by the confusing (and since rescinded) OMB memo which followed Trump’s executive order, another unnamed Senate Republican fretted, “We were all hyperventilating because of the pause on federal funds and programs.” Inundated by calls from worried state and local government officials, non-profit organizations, research institutions and many other groups, some Trump allies in Congress panicked that the rollout of funding halt was a mistake.
But Trump’s efforts to unilaterally delay or even deny spending mandated by Congress is worse than a mistake; it’s a crime. If federal courts have any remaining fidelity to the Constitution, Congressional statutes and Supreme Court precedent, they will put a rapid halt to his impoundment of federal funds. For his part, President Trump is betting they won’t.
The first court hearings suggest that federal judges disagree. On Tuesday, U.S. District Judge Loren L. AliKhan issued an administrative stay on Trump’s spending freeze on federal loans and grants. Responding to a lawsuit brought by the National Council of Nonprofits, Judge AliKhan warned that “It seems like the federal government currently doesn’t actually know the full extent of the programs that are going to be subject to the pause.” Then on Friday, federal judge John McConnell similarly sided with 22 state attorneys general in ordering the Trump administration not to “pause, freeze, impede, block, cancel, or terminate” funding promised to the states while his stay is in place because “the likelihood of a successful claim that the Executive’s actions violate the Constitution and statutes of the United States”. As Massachusetts AG Andrea Campell explained:
Today’s court decision reaffirms that the President cannot unilaterally take away federal funding, especially resources that our kids, seniors and economy rely on…My office will keep fighting to protect Massachusetts residents from these egregious and unlawful abuses of power.” [Emphasis mine.]
And to be sure, Donald Trump’s intentions to delay or rescind federal spending passed by Congress are egregious and unlawful. To understand why, a history of the presidential impoundment power—or lack thereof—is required.
Dating back to the earliest days of the Republic, the practice of “impounding” or not spending all of the money Congress appropriated for a specific program was a tactic occasionally used by Presidents from Jefferson and Grant to Teddy Roosevelt and FDR. But in 1974, that all changed after the frequent and serious the abuses of Richard Nixon, who increasingly resorted to impoundment withhold funds for almost any reason, including political vendettas. As the Democratic Study Group said in 1973 of the tens of billions of dollars President Nixon withheld:
“Following the 1972 election the use of impoundment reached crisis level. The President decimated programs for housing, agriculture and water pollution control by refusing to spend funds provided by Congress.”
By 1973, Nixon’s impoundments grew to as much as $18 billion in congressionally appropriated funds, equivalent to between $125 billion in today’s dollars. The crisis was so severe that in 1974, House staff contemplated adding Tricky Dick’s use of impoundments to the articles of impeachment being compiled against him. They ultimately decided against doing so because of the administration’s compliance with court orders and just completed Congressional action to end it.
The need to defend the Constitution’s twin requirements that “No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law” (Article I, Section 9, Clause 7) and the President “take Care that the laws be faithfully executed” (Article II, Section 3) led to the Congressional Budget and Impoundment Control Act (ICA or CBA) of 1974. As House Budget Committee Democrats explained in this 2024 Impoundment Explainer, the ICA is crystal clear as to when and how a President may delay or rescind spending authorized by Congress. The power of the purse remains with the legislative branch alone.
The Impoundment Control Act’s constraints on the President attempting to delay spending federal dollars obviously bar what Donald Trump is attempting to do now:
The ICA prescribes three narrow circumstances in which the President may propose to defer funding for a program: (1) providing for contingencies; (2) achieving budgetary savings made possible through improved operational efficiency; and (3) as specifically provided by law.
The ICA requires that the President send a special message to Congress identifying the amount of the proposed deferral; the reasons for it; and the period of the proposed deferral. Upon transmission of such special message, the funds may be deferred without further action by Congress; however, the deferral cannot extend beyond the end of the fiscal year in which the special message is sent. The ICA language on deferrals is long-standing budget law that allows the Executive branch to delay the obligation or expenditure of funding only for the specified reasons rather than policy reasons. [Emphasis mine.]
When it comes to presidential “rescissions” limiting or eliminating outright spending mandated by Congress, the ICA similarly details what the White House must do to comply with the law:
Put simply, if the President wants to spend less money than Congress provided for a particular purpose, he or she must first secure a law providing Congressional approval to rescind the funding in question. The ICA requires that the President 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. Upon transmission of such special message, the President may withhold certain funding in the affected accounts for up to 45 legislative session days. If a law approving the rescission is not enacted within the 45 days, any withheld funds must be made available for obligation.
Since the passage of the ICA in 1974, Republican and Democratic presidents alike have routinely followed its procedures when seeking to withhold dollars Congress voted to spend. As The Committee for a Responsible Federal Budget reported, over the past forty years “presidents from both parties have submitted over 1,100 rescission proposals to Congress, totaling $76 billion, of which approximately 40 percent have been approved.”
This history and the unambiguous text of the Impoundment Control Act itself have left little doubt in the minds of most legal observers that President Trump’s impoundment plans are plainly illegal. In 1985, Reagan administration attorney John Roberts—now Supreme Court Chief Justice John Roberts made that very point in a memo to staff secretary David Chew. As The Lever first reported
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.”
As it turns out, Chief Justice Roberts is not the only member of the current Supreme Court on record denying the legality of the power Donald Trump is trying to exercise now. As Vox reported Friday, Justice Brett Kavanaugh, too, has asserted that the law is clear, a fact Judge McConnell cited in his ruling today:
McConnell’s order, however, quotes from a 2013 opinion by then-federal appellate Judge Kavanaugh, which rejects the idea of impoundment and even cites a 1969 Department of Justice memo written by future Chief Justice William Rehnquist that reads: “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.”
According to Kavanaugh’s opinion, “even the President does not have unilateral authority to refuse to spend” funds appropriated by Congress. [Emphasis mine.]
It is true, as President Trump’s defenders have pointed out, that the Supreme Court hasn’t directly addressed the constitutionality of the Impoundment Control Act itself. But in 1998, SCOTUS ruled on a related presidential power. In 1996, Congress passed and Bill Clinton signed legislation created a line-item veto enabling the President to block spending—subject to override--on individual items authorized by Congress. In Clinton v. City of New York, Justice John Paul Stevens wrote for the 6-3 majority that under the Constitution’s Presentment Clause (Article I, Section 7, Clause 2), legislation that passes both Houses of Congress must either be entirely approved (i.e. signed) or rejected (i.e. vetoed) by the President. “Presentment” to the President, Stevens argued, referred to the totality of the bill passed by both houses of Congress. “In both legal and practical effect,” the majority opinion ruled, “the President has amended two Acts of Congress by repealing a portion of each.”
Now, Donald Trump knows this. After all, in January 2020 the Government Accountability Office (GAO) ruled that President Trump’s effort to block the release of $250 million in Congressionally-mandated aid to Ukraine ran afoul of the Impoundment Control Act. Yes, that’s the same $250 million over which Trump was impeached the first time. Nevertheless, Trump made the use of impoundment to get around Congress a centerpiece of his 2024 election campaign. In a video presentation on June 20, 2023, Donald Trump proclaimed his intention to use it to “restore executive branch impoundment authority to cut waste, stop inflation, and crush the Deep State.”
For 200 years under our system of government, it was undisputed that the President had the Constitutional power to stop unnecessary spending through what is known as Impoundment.
Very simply, this meant that if Congress provided more funding than was needed to run the government, the President could refuse to waste the extra funds, and instead return the money to the general treasury and maybe even lower your taxes […] bringing back Impoundment will give us a crucial tool with which to obliterate the Deep State, Drain the Swamp, and starve the Warmongers –-- these people that want wars all over the place; killing, killing, killing, they love killing --- and the Globalists out of government.
We are going to get the Warmongers and the Globalists out of our government.
With Impoundment, we can simply choke off the money.
That June 2023 statement didn’t merely state that as President, Trump will “work with Congress to overturn the limits of the CBA.” Trump intends to dare the Supreme Court to stop him:
President Trump will take action to challenge the constitutionality of limits placed on the Impoundment Power by the Congressional Budget and Impoundment Control Act of 1974 (CBA), the source of Congress’s usurpation of Executive Branch powers. [Emphasis mine.]
During his confirmation hearing, Trump’s choice to lead the Office of Management and Budget echoed that point. As Russ Vought told Senator Patty Murray (D-WA) last week, “The president ran on the notion that the Impoundment Control Act is unconstitutional. I agree with that.” It’s no wonder Senator Murray responded by scolding Vought and her GOP colleagues, “It is the law of the land, and I have to say that your answer to this should be disconcerting to every single member on this committee.”
Ultimately, Vought got the Committee’s blessing, as all 11 Republicans voted to advance his nomination while protesting Democrats refused to vote at all.
Despite the records of John Roberts and Brett Kavanaugh on the impoundment question, President Trump’s allies are confident that the Supreme Court will once again act as his rubber stamp. Leading the charge that the Impoundment Control Act is unconstitutional is Mark Paoletta. That would be the same Mark Paoletta who has worked with conservative court orchestrator Leonard Leo to seat right-wing judges and circle the wagons around his close friend, Justice Clarence Thomas. That would also be the same Mark Paoletta who appears next to Justice Thomas in a bizarre painting displayed at a home belonging to Thomas’ sugar daddy, Harlan Crow.
All of which means the 47th President of the United States fully intends to take an axe to any federal spending he deems excessive, unwise, or undesirable. That could certainly include dollars for Ukraine, NATO, health care, roads, schools, disaster relief, foreign aid, nonprofits, blue state recipients or pretty much any other discretionary spending approved by Congress. As the pain, carnage and confusion boomerangs in the United States and in countries around the world, even some of Trump’s GOP allies will decry his impoundments are a mistake. But until and unless Congress changes the law or the Supreme Court rules otherwise, Trump’s gambit will be much worse.
A crime.