During its first few weeks, the Trump Administration has unleashed a flurry of measures to radically reshape the federal government. Many of these moves are overtly unlawful. This paper identifies the legal problems with many of the most prominent actions: freezing funding, amending or repealing rules, and denying citizenship to children born in the United States.[2]
On January 27, the Office of Management and Budget (OMB) issued a memo freezing funding for a vague but broad swath of federal programs and followed up with a set of policy questions related to what appeared to be all federal programs. In the face of court action, OMB rescinded the memo, but statements by the White House indicated that the Administration intended to continue to freeze funding it believed contradicted their policy views as laid out in various executive orders.
Two federal courts have issued temporary restraining orders that prohibit the Administration from freezing funding, but many public and private agencies operating programs serving the public in a wide variety of ways report that the freeze continues or that the Administration is newly freezing their funding. This would place the Administration in clear violation of those court orders, perhaps most prominently by blocking funds Congress has appropriated to programs run by the U.S. Agency for International Development (USAID). On February 10, a U.S. district court in Rhode Island found that the Administration violated its previous order.
As courts held repeatedly when President Nixon tried to withhold funds from programs with which he disagreed, the executive branch has no authority to impound funds. Most federal spending statutes require the Administration to spend whatever funds Congress has provided for a specified activity. In Train v. New York,[3] a unanimous U.S. Supreme Court held that the President lacks the authority to withhold funds Congress has appropriated. Train was one of many cases challenging President Nixon’s attempts to “impound” appropriated funds for programs he disliked. Every case decided on the merits held impoundment unlawful.
In response to President Nixon’s impoundments, Congress enacted the Impoundment Control Act of 1974.[4] The Act grants the President two options to reduce funding that otherwise would have been unavailable under Train. First, the President may propose that Congress rescind appropriated funds and obtain a vote without the risk of a filibuster. The President may withhold funds for 45 days while waiting for Congress to act but must then spend the money as specified in the appropriations act. The President may propose rescissions for any reasons, including policy disagreement with the program.
Second, the President may propose to defer spending to later in the same fiscal year. This, too, requires a special message to Congress, but the delay is deemed approved unless Congress acts to forbit the delay. But for deferrals, the only allowable purposes are anticipated increases in need later in the fiscal year, technological or similar changes allowing the program to fully meet Congress’s goals less expensively, or other grounds authorized by law. Thus, the President may not propose deferrals based on policy disagreements.
Although President Trump’s spending “pause” on federal programs clearly qualifies as a rescission under the Impoundment Control Act, he has refused to follow the Act’s procedures. He therefore cannot claim the Act’s authorization for his actions.[5] OMB Director Russell Vought has argued that the Impoundment Control Act is unconstitutional. This is likely incorrect, but in any event the absence of the Act would leave the President with even fewer powers than he has now regarding spending with which he disagrees.
The basic obligation to spend appropriated funds comes from the laws specific to those programs; the Impoundment Control Act offers limited authority to override those laws. If the Impoundment Control Act were eliminated, the President would have less, not more power: we would be back to Train v. New York’s requirement that the President spend appropriated funds. This proposition was tested in 1987 when the Impoundment Control Act was held unconstitutional based on a since-removed provision allowing a single chamber of Congress to veto Administration action. The U.S. Court of Appeals for the District of Columbia Circuit held that, in the absence of the Act, President Reagan had no authority to withhold funds from Department of Housing and Urban Development (HUD) programs he disliked.[6]
To see how the Administration’s funding freezes violate the various laws establishing the programs in question, consider the reported freeze on construction of charging stations for electric cars.[7] This violates the statute requiring that “the Administrator shall implement a program to make awards of grants and rebates to eligible recipients [for] purchasing, installing, operating, and maintaining infrastructure needed to charge, fuel, or maintain zero-emission vehicles.”[8] Similarly, the Administration interrupted funding for homelessness service providers,[9] which violated laws such as the one requiring that “The Secretary shall award grants, contracts and cooperative agreements to community-based public and private nonprofit entities for the purposes of providing mental health and substance use disorder services for homeless individuals.”[10]
Further evidence that the President has no inherent constitutional power to withhold appropriated funds unilaterally may be found in the Supreme Court’s decision on a statute that explicitly authorized the President to do so. The Line-Item Veto Act allowed the President to cancel items of appropriation and certain narrow tax preferences by sending Congress a message shortly after signing the law containing those items. This is, in essence, what the Administration is claiming the President may do even without congressional authority. The Supreme Court strongly disagreed, finding that the Act violated Article I of the Constitution, which gives legislative effect only to laws passed by both houses of Congress and signed by the President or repassed over a veto. The Court found that, by withholding funds, the President was effectively amending the underlying statute, which exceeded his powers. If the President cannot withhold appropriated funds with Congress’s permission, doing so against the terms of the relevant laws is even more unlawful.
Even without impoundments, the Administration has violated appropriations acts by disregarding limits those acts place on spending appropriated funds. For example, the Administration recently announced that the National Institutes of Health (NIH) will impose a uniform 15 percent rate for indirect research costs at academic institutions.[11] This has the effect of reducing payment dramatically below long-standing levels. Congress, however, has required NIH to apply existing federal rules “to the same extent and in the same manner as such provisions were applied in the third quarter of fiscal year 2017.”[12] Congress also forbade spending any appropriated funds to change these rates.[13] NIH’s issuance of this policy memo defied that prohibition.
Some Administration officials, including Elon Musk, have asserted that taking control of the payment system at the Treasury is allowing them to terminate “illegal” payments totaling a spectacularly high amount.[14] This is both improbable and unlawful. The payment system does not contain the sort of information required to determine the legality of expenditures; that could only be accomplished by comparing the requirements the funding statutes and regulations establish for these programs, or the terms of any federal contract, with the actual performance of the funding recipient. That is an important but painstaking process that Mr. Musk has not had time to undertake and is rightfully assigned to the agencies with expertise in operating the programs.
Even if they did identify a questionable payment, unilaterally cutting off payment likely would be illegal in most cases. Federal law requires that decisions to deny payment to a contractor be made by the contracting officer — who presumably is well-versed in the specifics of the contract — rather than some central authority.[15] Contractors then have 90 days to appeal.[16] Should the contractor prevail, it is entitled to interest, increasing the costs to the federal government of an improper denial.[17]
Moreover, the Fifth Amendment’s Due Process Clause generally requires those having federal funds cut off to receive notice and an opportunity for a hearing at which they may respond to the accusations against them.[18] Mr. Musk’s associates have no capacity to provide such notice and hearings or to provide the statements of reasons required to deny payment on federal contracts. Refusing to make contractually obligated payments is likely to be a breach of contract as well as a violation of the Prompt Payment Act, resulting in substantial additional costs to the federal government.[19]
Amending and Repealing Rules Without Following Statutorily Mandated Procedures
Since 1946, Congress has sought to improve the quality of administrative rules by requiring federal agencies to seek public comments when they promulgate, amend, or repeal rules. For most rule-making affecting the general public, this mandate appears in the Administrative Procedure Act (APA).[20] For rules the Office of Personnel Management makes, a separate statute requires compliance with the APA.[21]
The Biden Administration followed the APA to promulgate rules on many of its top priorities, both in regulations protecting the general public and in rules protecting career civil servants from political coercion or discrimination. On some issues, it was unable to finish soliciting and responding to public comments and therefore abandoned making policy in those areas.
The new Administration, however, is repeatedly disregarding its statutory duty to seek public comment before it regulates. For example, the President directed the Office of Personnel Management to disregard a duly promulgated regulation giving federal employees the right to remain in their current classification if the Administration reclassified them into positions where they would lack security of tenure.[22] This is significant because the same executive order shifts large numbers of federal workers out of the non-political competitive service into positions where they may be fired at will.
Similarly, HUD reportedly has announced that it would cease to enforce the duly promulgated 2016 regulation that prohibits homeless shelters and similar facilities from discriminating based on gender identity.[23] The Supreme Court has repeatedly emphasized that the same procedures necessary to promulgate a new regulation are also required to modify or repeal one.[24]
On Inauguration Day, President Trump signed an executive order purporting to deny citizenship to children born in the United States to parents lacking citizenship or legal permanent residency.[25] This conflicts with Section 1 of the 14th Amendment to the U.S. Constitution, which states “[a]ll persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.” This language long has been interpreted as conferring citizenship to all children born in this country except those of foreign diplomats whose diplomatic immunity places them outside the jurisdiction of U.S. law.
One of the most conservative Supreme Courts in U.S. history affirmed this interpretation in 1898 in Wong Kim Ark v. United States.[26] Two years earlier, this Court handed down Plessy v. Ferguson,[27] which upheld racial segregation in public services. Five justices in the Plessy majority joined the majority in Wong Kim Ark. Moreover, Wong Kim Ark is based on precisely the sort of originalist analysis of English and early American practices that today’s Supreme Court values. Nothing the current Court has said suggests it might reject Wong Kim Ark and read the 14th Amendment contrary to its plain language and original public meaning.
Many of the Administration’s actions occurred without public announcement or justification. Where the Administration has sought to justify its actions, it often has relied on a few words taken out of context from decisions wholly inapplicable to the issue at hand. For example, in seeking to justify abrogating binding contracts signed during the Biden Administration, the President’s rationale for not following the statutory procedures was that the Supreme Court held “that a President ‘cannot choose to bind his successors by diminishing their powers.’” The case the statute cites,[28] however, only uses the quoted language for refusing to hold that a president signing a bill into law does not preclude legal challenges under the APA; the case in no way suggests that presidents and their appointees cannot sign contracts binding the government beyond that president’s term.
The Administration also sometimes cites the Supreme Court’s decision last year in Loper Bright Enterprises v. Raimondo[29] to suggest that it need not follow statutory procedures to change regulatory policy. This is actually quite ironic: Loper Bright did not change rule-making procedure at all but reduced agencies’ authority to interpret the statutes they are bound to enforce. Similarly, the Administration sometimes cites West Virginia v. EPA[30] as allowing it to disregard legal procedures. West Virginia, too, was a case shifting power away from administrative agencies and to the courts, specifically by rejecting a technically valid application of a statute that a court believes not to be plausible when viewing the statute as a whole. Many of the rationales the Administration is offering for its actions rely on just the kind of implausible reading of the laws that the Supreme Court warned against.
Finally, statements from some representatives of the Administration seem to imply that executive orders have the force of law and that officials must follow them even in preference to statutes. That view has no support in the Constitution. The only way to make a law is for both chambers of Congress to pass a bill and then either have the President sign it or have Congress pass it again with two-thirds votes over the President’s veto.[31] The Constitution makes no mention of executive orders, and except in a few unusual cases Congress has not given them special weight. It certainly would be unconstitutional, and a betrayal of their oath, for a federal worker to give executive orders priority over constitutionally enacted statutes.
Beneath all of these actions is a belief in a radically more powerful executive branch and a much less significant Congress. Senior Administration officials such as OMB Director Russell Vought have explicitly argued that the Impoundment Control Act is unconstitutional, but the implication of their actions is even more radical. The Administration is implying that many or most laws seeking to regulate how the federal government operates are invalid infringements of executive power and thus can be ignored. Accepting this principle would require invalidating a large number of laws passed by Congress and signed by presidents of both parties as well as numerous decisions of the Supreme Court. It would fundamentally alter the structure of our government away from the system of checks and balances designed by the Framers. This viewpoint has little precedent behind it.
Instead, the prevailing formulation of presidential power is found in Justice Robert Jackson’s famous 1952 opinion concurring in the Court’s decision to block President Harry Truman’s seizure of the steel industry during the Korean War: “When the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb, for then he can rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter. Courts can sustain exclusive presidential control in such a case only by disabling the Congress from acting upon the subject. Presidential claim to a power at once so conclusive and preclusive must be scrutinized with caution, for what is at stake is the equilibrium established by our constitutional system.”[32]
The Role for Congress and the Courts
Where the Administration is taking problematic actions that are consistent with current law, Congress can, of course, change the law. As it stands, however, the Administration is taking a great many troubling actions that squarely violate existing statutes. Enacting redundant prohibitions may serve little purpose where the Administration is already disregarding clear statutes in the first place. For example, when Congress has already enacted a statute creating USAID and another statute appropriating funds to programs USAID operates, how much clearer can Congress be that USAID should implement the programs Congress created and funded?
Accordingly, the primary responsibility for addressing these actions falls to the courts. At this early stage, it appears the courts are rising to the occasion: although many unlawful actions have led to lawsuits, this does not come close to straining the courts’ capacity. Courts, however, cannot prevent all harm. The Administration is acting so rapidly, and with so little transparency, that considerable damage may be done before anyone outside knows and can get into court. This is certainly true of actions giving persons outside regular government service access to sensitive databases. Whether courts can fashion remedies to protect the people whose personal and financial information may have been compromised remains to be seen.
Another concern stems from widespread reports that significant federal funding remains frozen despite two court orders requiring the Administration to stop withholding funding.[33] With Vice President Vance questioning the courts’ power to enjoin the Administration’s actions,[34] some have asked whether the courts have the means to enforce their orders. The answer is that they do. Courts may hold those violating their orders in criminal contempt of court, punishing them with fines or jail time. President Trump, of course, could pardon any federal officials convicted of criminal contempt. Federal court also, however, could hold any recalcitrant officials in civil contempt of court. Civil contempt does not seek to punish but merely to pressure an individual or entity into complying. Thus, a court that sees its order being violated could order the officials fined or even jailed until they comply. The Supreme Court has ruled that the President’s pardon power cannot “interfere with the use of coercive measures to enforce a suitor’s right.”[35]
