The Supreme Court and the Impoundment Crisis

To follow up on Paul’s post from earlier today, Steve Vladeck explains that perhaps the central reason for Trump’s latest act of authoritarianism is to get the Impoundment Control Act declared unconstitutional:

The move was announced in a cryptic and thinly reasoned two-page memo that went out over the signature of Matthew J. Vaeth, the acting director of the White House Office of Management and Budget. And the consequences are potentially cataclysmic—for virtually all foreign aid (including the distribution of HIV drugs in poor countries); for medical and other scientific research in the United States; for tons of different pools of support for educational institutions; and for virtually every other entity that receives federal financial assistance. (The memo excludes funds paid directly to individuals, like Social Security or other benefits—although it offers no principled basis for the distinction.)

The freeze purports to be temporary—and only “to the extent permissible” by law, whatever that means. Thus, the Vaeth memo directs all agencies that administer affected funds to submit detailed lists of projects suspended under the new order by February 10. Those agencies in turn must assign “responsibility and oversight” to tracking the federal spending to a senior political appointee, not a career official. But there is no guarantee that the spigot will be turned back on in two weeks; and in the interim, the withholding of so much money will almost certainly cause irreparable harm to at least some of the affected parties even if it’s fully restored at the end of the “pause.” Thus, even if this measure is a stopgap (and that’s debatable at best), it’s one that is likely to cause numerous crises all its own.

Even as the Trump administration has embarked upon a flurry of controversial initiatives over the past week, I’ve been reluctant to swing at every pitch. But this action belongs in a category unto itself. In essence, the Trump administration is claiming the unilateral power to at least temporarily “impound” tens of billions of dollars of appropriated funds—in direct conflict with Congress’s constitutional power of the purse, and in even more flagrant violation of the Impoundment Control Act of 1974 (ICA).

When, not if, recipients of the frozen funds sue to challenge agencies’ compliance with the Vaeth memo, it’s a virtual certainty that the Trump administration will argue that the ICA is unconstitutional and that the President has inherent constitutional authority to impound. That argument is a loser, but it’s a good bet that it’s going to be up to the Supreme Court to say so—and probably a heck of a lot sooner than we might have predicted as recently as yesterday.

One upshot of this, combined with whatever arbitrary tariffs he chooses to impose and all of the workers he plans to deport, is likely to wreck the good economy he was handed by a Democratic president in record time even by the standards of a Republican president:

increasingly convinced that they're going to Liz Truss the economy, but in a system that is incapable of removing the Truss.— BeijingPalmer (@beijingpalmer.bsky.social) January 27, 2025 at 9:09 PM

Vladeck, FTR, is also reasonably confident that this will be a but-we-won’t-do-that moment for the Supreme Court:

More than just getting there first, the impoundment issue also presents an even more fundamental question about the structure of our government—one that goes beyond even the enormous moral and practical implications of the birthright citizenship issue. If presidents can impound appropriated funds at any time and for any reason, then there’s not much point to having a legislature.

That’s also why I’m not as skeptical of this Court being hostile to a broad claim of presidential impoundment power as I suspect many readers are—even after the broad embrace of Article II power in last summer’s presidential immunity ruling. For as much as this Court has embraced the “unitary executive” theory of executive power, impoundment has never been a central feature of that school of thought—as reflected in, among lots of other places, the OLC opinion referenced above. It’s one thing to believe that the President must have unitary control of the executive branch; it’s quite another to believe that such control extends to the right to refuse to spend any and all money Congress appropriates. (One can see at least some view of the significance and breadth of Congress’s appropriations power in last term’s ruling in the CFPB funding case—which Justice Thomas wrote, and from which only Justices Alito and Gorsuch dissented.)

And even for judges and justices who might be somewhat more sympathetic to nuanced impoundment claims, the Vaeth memo … ain’t it. Instead of a carefully calibrated argument against the compulsory nature of a specific appropriation, the Vaeth memo is a clumsy (“Marxist”?!?) broadsword. Perhaps it’s so transparently harmful, preposterous, and unlawful that we’ll see the administration walk it back in the coming days. If not, it stands to reason that the Supreme Court will have to settle the matter within the next few weeks—and that even this Court is likely to oblige.

I would never say never, but in addition to being an idiotic argument even by the standards of ad hoc “legal” arguments cooked up by Federalist Society b-listers, unlike say the “maJor QUeSTioNS” doctrine striking down the Impoundment Act can’t really be done in a way that would cabin its effects only to Republican presidents. And refusing to make any effort to justify it beyond a few jottings on a cocktail napkin Pete Hegseth left behind after his ninth Tanqueray and Tonic before breakfast is the kind of thing that can cause Roberts and Coney Barrett to be offended because they’re being made to look ridiculous.

Also recommended is this thread from recently departed HHS general counsel Sam Bagnestos about why Trump’s actions — even if “temporary” — are plainly illegal, no matter what the Trump landscaper currently heading House appropriations will tell you:

Just the <checks notes> Chair of the House Appropriations Committee going on the record to say that appropriations statutes “are not a law.” The United States Congress, ladies and gentlemen.

[image or embed]— Steve Vladeck (@stevevladeck.bsky.social) January 28, 2025 at 9:40 AM

“Appropriations is not a law.” At least Carl Schmitt wasn’t an actual moron.