Donald Trump is waging war on the American system of government.
On Monday afternoon, his Office of Management and Budget ordered a pause on nearly all grants, loans and other forms of federal assistance, affecting as much as $3 trillion in funds including cash for education, disaster relief and small-business loans, and hundreds of billions of dollars in grants to state, local and tribal governments. Countless organizations, from research universities to women’s shelters, were left adrift, scrambling for answers.
The only real explanation, from the O.M.B. memo, was that this was a necessary step to root out the malign influence of “Marxist equity, transgenderism and green new deal social engineering policies” from government. If this sounds delusional, that’s because it is. But now, it seemed, millions of Americans would have to suffer while the president’s apparatchiks chased down the specters of their fevered imaginations, confident that they’d find the source of their cultural alienation in the disbursement of funds to a veterans’ suicide hotline or free lunch for low-income schoolchildren.
On Tuesday, 23 attorneys general sued the Trump administration in an effort to block the freeze, and a federal judge issued an administrative stay to preserve the status quo until next week, as initial litigation begins to play itself out. Democrats have also condemned the White House, with some Senate Democrats suggesting something like a slowdown of all business if the White House does not relent.
For now, the freeze is, well, frozen. But however this ends, it should be emphasized that Trump has done more than spark a fiscal and political crisis; he has sent us headlong into another constitutional crisis.
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The president of the United States has no legal authority to place a blanket hold on congressional appropriations. It is true that the 1974 Impoundment Control Act creates a process by which the executive can request a rescission of appropriated funds. The law also permits the president to defer spending under a specific set of particular circumstances: to provide for contingencies, for example, or to take advantage of operational efficiencies. Even then, the president must notify Congress with a message that states both the amount and duration of the deferral, as well as the reasons for it.
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Any attempt to impound funds outside of the parameters set out by the act is illegitimate for the simple reason that the Constitution gives Congress the full and unambiguous power of the purse. It is, in fact, the first power enumerated under Article I, Section 8 — “The Congress shall have power to lay and collect taxes, duties, imposts and excises, to pay the debts and provide for the common defense and general welfare of the United States.”
As the Justice Department’s Office of Legal Counsel concluded in its 1988 assessment of the president’s veto power, “There is no textual source in the Constitution for any inherent authority to impound.” Attempts to ground an impoundment power in Article II’s vesting clause and its charge that the president “take care” that the laws are faithfully executed crashes against the fact that it would be “anomalous” for the president to decline “to execute the laws under the claim of faithfully executing them.”
In addition to the plain text and logic of the Constitution, let’s consider its history and purpose as well.
During the fight for ratification, supporters of the Constitution had a simple and effective answer for those opponents who thought the new charter put too much power into the hands of the president.
“The purse is in the hands of the representatives of the people,” James Madison said at the Virginia ratifying convention in 1788, responding to Patrick Henry’s fears of military despotism. “They have the appropriation of all moneys.”
Alexander Hamilton made a similar point while speaking at the New York ratifying convention:
The president may have wide authority to act across a broad assortment of different areas, but he cannot spend any more or less than what Congress mandates without explicit approval from the Legislature. “This power over the purse,” wrote Madison in Federalist No. 58, “may, in fact, be regarded as the most complete and effectual weapon with which any constitution can arm the immediate representatives of the people, for obtaining a redress of every grievance, and for carrying into effect every just and salutary measure.”
To upset this balance of power — to give the president, in effect, the power of the purse — is to unravel the constitutional system in its entirety. A Congress that cannot force the executive to abide by its spending decisions is a Congress whose power of the purse is a nullity and whose spending laws are little more than a batch of recommendations.
In its memo announcing Trump’s freeze, the Office of Management and Budget declared, “Career and political appointees in the executive branch have a duty to align federal spending and action with the will of the American people as expressed through presidential priorities.” Not so fast. The first duty of everyone who serves in the United States government is to the Constitution, which means that career and political appointees have a duty to act according to the law. There is no mechanism by which “the will of the American people” overrides the policies of a previous Congress, signed duly into law by a previous occupant of the White House.
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Put another way, the American system of government is not one in which the people imbue the president with their sovereign authority. He is a servant of the Constitution, bound by its demands. Most presidents in our history have understood this, even as they inevitably pushed for more and greater authority. Not Trump. He sees no distinction between himself and the office, and he sees the office as a grant of unlimited power, or as he once said himself, “I have an Article 2 where I have the right to do whatever I want as president.”
The freeze, then, is Trump’s attempt to make this fanciful claim to limitless power a reality. He wants to usurp the power of the purse for himself. He wants to make the Constitution a grant of absolute and unchecked authority. He wants to remake the government in his image. He wants to be king.
On Monday afternoon, his Office of Management and Budget ordered a pause on nearly all grants, loans and other forms of federal assistance, affecting as much as $3 trillion in funds including cash for education, disaster relief and small-business loans, and hundreds of billions of dollars in grants to state, local and tribal governments. Countless organizations, from research universities to women’s shelters, were left adrift, scrambling for answers.
The only real explanation, from the O.M.B. memo, was that this was a necessary step to root out the malign influence of “Marxist equity, transgenderism and green new deal social engineering policies” from government. If this sounds delusional, that’s because it is. But now, it seemed, millions of Americans would have to suffer while the president’s apparatchiks chased down the specters of their fevered imaginations, confident that they’d find the source of their cultural alienation in the disbursement of funds to a veterans’ suicide hotline or free lunch for low-income schoolchildren.
On Tuesday, 23 attorneys general sued the Trump administration in an effort to block the freeze, and a federal judge issued an administrative stay to preserve the status quo until next week, as initial litigation begins to play itself out. Democrats have also condemned the White House, with some Senate Democrats suggesting something like a slowdown of all business if the White House does not relent.
For now, the freeze is, well, frozen. But however this ends, it should be emphasized that Trump has done more than spark a fiscal and political crisis; he has sent us headlong into another constitutional crisis.
Advertisement
SKIP ADVERTISEMENT
The president of the United States has no legal authority to place a blanket hold on congressional appropriations. It is true that the 1974 Impoundment Control Act creates a process by which the executive can request a rescission of appropriated funds. The law also permits the president to defer spending under a specific set of particular circumstances: to provide for contingencies, for example, or to take advantage of operational efficiencies. Even then, the president must notify Congress with a message that states both the amount and duration of the deferral, as well as the reasons for it.
Sign up for the Opinion Today newsletter Get expert analysis of the news and a guide to the big ideas shaping the world every weekday morning. Get it sent to your inbox.
Any attempt to impound funds outside of the parameters set out by the act is illegitimate for the simple reason that the Constitution gives Congress the full and unambiguous power of the purse. It is, in fact, the first power enumerated under Article I, Section 8 — “The Congress shall have power to lay and collect taxes, duties, imposts and excises, to pay the debts and provide for the common defense and general welfare of the United States.”
As the Justice Department’s Office of Legal Counsel concluded in its 1988 assessment of the president’s veto power, “There is no textual source in the Constitution for any inherent authority to impound.” Attempts to ground an impoundment power in Article II’s vesting clause and its charge that the president “take care” that the laws are faithfully executed crashes against the fact that it would be “anomalous” for the president to decline “to execute the laws under the claim of faithfully executing them.”
In addition to the plain text and logic of the Constitution, let’s consider its history and purpose as well.
During the fight for ratification, supporters of the Constitution had a simple and effective answer for those opponents who thought the new charter put too much power into the hands of the president.
“The purse is in the hands of the representatives of the people,” James Madison said at the Virginia ratifying convention in 1788, responding to Patrick Henry’s fears of military despotism. “They have the appropriation of all moneys.”
Alexander Hamilton made a similar point while speaking at the New York ratifying convention:
The aim of the 1787 Constitution was to secure the future of republican government in the United States. And republican political theory of the time insisted, as Madison wrote, on the “separate and distinct exercise of the different powers of government, which to a certain extent, is admitted on all hands to be essential to the preservation of liberty.”
The president may have wide authority to act across a broad assortment of different areas, but he cannot spend any more or less than what Congress mandates without explicit approval from the Legislature. “This power over the purse,” wrote Madison in Federalist No. 58, “may, in fact, be regarded as the most complete and effectual weapon with which any constitution can arm the immediate representatives of the people, for obtaining a redress of every grievance, and for carrying into effect every just and salutary measure.”
To upset this balance of power — to give the president, in effect, the power of the purse — is to unravel the constitutional system in its entirety. A Congress that cannot force the executive to abide by its spending decisions is a Congress whose power of the purse is a nullity and whose spending laws are little more than a batch of recommendations.
In its memo announcing Trump’s freeze, the Office of Management and Budget declared, “Career and political appointees in the executive branch have a duty to align federal spending and action with the will of the American people as expressed through presidential priorities.” Not so fast. The first duty of everyone who serves in the United States government is to the Constitution, which means that career and political appointees have a duty to act according to the law. There is no mechanism by which “the will of the American people” overrides the policies of a previous Congress, signed duly into law by a previous occupant of the White House.
Advertisement
SKIP ADVERTISEMENT
Put another way, the American system of government is not one in which the people imbue the president with their sovereign authority. He is a servant of the Constitution, bound by its demands. Most presidents in our history have understood this, even as they inevitably pushed for more and greater authority. Not Trump. He sees no distinction between himself and the office, and he sees the office as a grant of unlimited power, or as he once said himself, “I have an Article 2 where I have the right to do whatever I want as president.”
The freeze, then, is Trump’s attempt to make this fanciful claim to limitless power a reality. He wants to usurp the power of the purse for himself. He wants to make the Constitution a grant of absolute and unchecked authority. He wants to remake the government in his image. He wants to be king.
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