Good morning. Today, my colleague Emily Bazelon explores presidential power. We're also covering migrants at Guantánamo, Vladimir Putin and rumination. —David Leonhardt
Purse strings
Perhaps the biggest legal test of President Trump's term so far turns on a basic question: Can the president override Congress and cancel federal funding? Because he disagrees with spending goals already set by law, Trump's administration has nixed grants and closed agencies that were doing work the legislative branch authorized. The Constitution says only Congress can make those calls. In a couple of cases, federal judges have told the administration to release the money. One suit, brought by Democratic state attorneys general, will probably land at the Supreme Court. Today's newsletter will guide you through the dispute over "impoundment," or efforts by the executive branch to hold back money Congress wants to spend. What the founders wantedAccording to Article I of the Constitution, Congress passes laws to spend money — appropriations bills. Some of these let the president decide how and when to spend the funds through executive agencies. But a lot of funding comes with specific instructions. Presidents generally can't cancel such spending unilaterally — that's fundamental to the separation of powers. "Where the purse is lodged in one branch, and the sword in another, there can be no danger" of an all-powerful president, Alexander Hamilton said at the convention to ratify the Constitution in New York. Presidents have generally respected the line the framers drew. When they spent less than Congress allotted, it was often because Congress set a ceiling ("a sum not exceeding") rather than requiring the whole amount to be spent. In 1803, for instance, Thomas Jefferson saved money when he didn't need all of a $50,000 appropriation for gun boats. In other instances, presidents impounded funds to save money and effectively reached an agreement with Congress. The exception to the rule is Richard Nixon, who had a sharp confrontation with Congress. He impounded billions appropriated to build waste treatment plants that would reduce pollution. Both Congress and the Supreme Court rejected Nixon's gambit. Congress passed the Impoundment Control Act of 1974, which forbade future impoundments with only narrow exceptions. And the court unanimously ruled that Nixon had no authority to spend less than Congress had allotted. A rising revoltOver the years, conservative frustration mounted over the ballooning federal budget. Congress tried to give the president a line-item veto to cancel specific programs out of a bill, but the Supreme Court ruled that it was unconstitutional. An opposing view of executive power, argued in an article co-written by the lawyer who is now counsel for the White House budget office, holds that presidents have always impounded funds in the way that Nixon did because they sometimes spend less than authorized. In this view, it doesn't matter whether they did it to save money or to scrap a reviled program. As a result, the Trump administration lawyer Mark Paoletta and his co-authors argue, the Impoundment Control Act is unconstitutional. Legal scholars point out that these were not examples of presidential actions that defy Congress. They mostly involved presidents and Congress accommodating each other, often to save money, muddling through rather than a president cutting off funds over a policy disagreement, as Trump apparently did with educational research that Elon Musk's team said it canceled this week, for instance. The Supreme CourtBut that's probably not the point. The Trump administration seems intent on outcomes, not theories — on asserting broad executive authority and expecting Congress to roll over. The state attorneys general who have sued to unfreeze funds are checking Trump's power from outside Washington. How would the Supreme Court rule on an impoundment challenge? The justices decided a relevant case last spring. In a 7-to-2 ruling, the court rejected a challenge to the funding Congress provided for the Consumer Financial Protection Bureau (which Trump has just unilaterally closed, the subject of another lawsuit). Justice Clarence Thomas opened his majority opinion by declaring that "our Constitution gives Congress control over the public fisc." He added later that by the time of the Constitutional Convention in 1787, "the principle of legislative supremacy over fiscal matters engendered little debate and created no disagreement." Related: What happens when Elon Musk comes to your door? The New York Times On Politics newsletter will focus on Musk for the coming weeks.
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