Wait, Can He Actually Do That? Part 2: Impoundment, Transgenderism, and Wokeism
On Monday, Office of Management and Budget (OMB) Acting Director Matthew Vaeth issued a remarkable (even by Trump administration standards) memorandum to heads of executive departments and agencies instructing them to "temporarily pause all activities related to obligation or disbursement of all Federal financial assistance, and other relevant activities that may be implicated by [various of Trump's] executive orders, including, but not limited to, financial assistance for foreign aid, nongovernmental organizations, DEI, woke gender ideology, and the green new deal." (Bold letters in original.) Because of that "not limited to" and the fact that elsewhere the memo lists seven executive orders preceded by the word "including," it was unclear whether any federal expenditures were not subject to the order--with the exception of Social Security and Medicare payments, which were excluded by a footnote.
The breadth of the primary language and the narrowness of that footnote understandably led many to wonder whether it covered other programs on which people rely for their survival, including Medicaid and food stamps. On Tuesday came a Q&A document indicating that the spending pause did not apply to such programs, but only to those "programs, projects, and activities implicated by the President's Executive Orders." However, because the executive orders potentially reach just about any government program, the Q&A document provided reassurance regarding only those programs specifically mentioned.
Wait, can he actually do that?
No. And for the record, I (and every other competent lawyer who hasn't sold out to Trump) reached that conclusion before a judge blocked the administration's plan.
Although the Q&A document says that the pause is not an impoundment under the Impoundment Control Act (ICA) because it is "a temporary pause," it obviously is an impoundment. The ICA forbids presidential "withholding or delaying" spending required by Congress except subject to various substantive and procedural criteria that Trump and Vaeth aren't even pretending to have satisfied. Because "pause" is simply a synonym for "delay," the memo issues a manifestly unlawful order.
It is also unconstitutional. The leading case is Train v. City of New York. President Nixon told his EPA Administrator not to spend several billion dollars that Congress had allocated. SCOTUS said he couldn't do that. If Congress delegates discretion to the president to spend up to some amount of money--$10 billion for a new weapons system, say--and the president discovers that he can get the job done for $8 billion, then sure, he can leave the $2 billion excess allocation in the Treasury; he doesn't have to throw a massive kegger to spend down to zero. But if Congress says actually spend $X, the president has to actually spend that much. Unauthorized presidential budget cuts are unconstitutional impoundment.
And that makes excellent sense, as a simple hypothetical example illustrates. Suppose Congress passes a bill appropriating $5 billion to be disbursed as grants to local school districts to purchase healthy vegetables for school lunches. The president vetoes it (because he prefers that schoolchildren eat nothing but french fries, cheeseburgers, and Ring Dings, just like he did, and look where it got him). Congress overrides the veto and enacts the appropriation. The president refuses to spend the money because he dislikes healthy eating and/or is in the pocket of big Ring Ding. That's obviously a usurpation of legislative authority. And if that's true when legislation arises via the overriding of the president's veto, it's equally true when legislation was signed by a predecessor president.
Might a president have some wiggle room where an appropriation is unconstitutional or is being administered unconstitutionally? Suppose a non-racist president learned that some grant program was being administered in a way that expressly favored white grant applicants over nonwhite ones. The president's oath and duty to take care that the laws be faithfully executed would allow--indeed, might compel--efforts to correct that unconstitutionality. And maybe, but only maybe, that would include pausing spending.
Now, some of the Trump executive orders purport to provide a basis for such an approach. The Hyde Amendment forbids federal funding of abortion, and one of the goals of the impoundment memo is to allow agencies to ensure compliance with the Hyde Amendment. Trump's anti-DEI executive orders claim that DEI is itself unconstitutional race discrimination. But absent any evidence that federal funds are being spent on abortion or that DEI programs are actually discriminating based on race--as opposed to making some right-wing white snowflakes feel bad that someone is acknowledging the existence of actual racism--a president doesn't get a magic wand with which to usurp legislative power simply by asserting that he's ferreting out unlawful spending.
Meanwhile, some of the goals of the memo can't be remotely fitted onto the procrustean bed of ensuring that the law is followed. Take the imperative to combat "transgenderism" and "wokeness." Assume that those things exist and are being promoted by some government programs. That's not illegal, much less unconstitutional. Indeed, insofar as wokeness consists of speech, the effort to block it could violate the First Amendment. True, the government need not fund all speech, but there are limits on the ability of government to condition the receipt of federal funds on giving up the right to political speech, especially where, as here, the conditions are added after the fact. That's why the lawsuit that led to the order blocking the administration's impoundment plan includes a cause of action under the First Amendment.
I have confidence that the impoundment, like the effort to eliminate birthright citizenship through an executive order, will not survive a judicial challenge. But with each absolutely outrageous totally unlawful move the Trump 2 administration makes, it shifts the Overton window further towards the authoritarian right, thereby leading the American people and the baffled media to regard Trump's merely very outrageous and almost entirely unlawful moves as somehow normal.