Spending Cuts Can Only Boost Executive Power
Feb. 18, 2025
Those hoping the Supreme Court will smack down the President for overstepping his bounds are going to be disappointed.
Not that he will go unscathed. He will lose a few, but he is going to win some as well. And the whole process will take so long that there will be lasting damage regardless.
Those with a vested interest are counting on three bits of legalese that seem to offer powerful protection from the drastic spending reductions the President is ordering.
First, the Constitution is clear that Congress has the power of the purse. Only Congress can make appropriations, and without that money cannot be spent. Second, the Impoundment Control Act of 1974 declares that if Congress appropriates money, it must be spent. Third and finally, the Constitution requires the President to “take care that the laws be faithfully executed.”
Slam dunk, case closed. Or maybe not. To a layman unschooled in the law, there seem to be two major sticking points in the rush to judgment.
The first is that this Court is into parsing words, which turns into parsing the law. Maybe that’s because Chief Justice John Roberts is trying to be open-minded. Or maybe it’s because he has no choice in weaving his way through and around the varying degrees of conservatism in the 6-3 majority.
His majority opinion last summer granting broad immunity to the President went to excruciating lengths to distinguish between official and non-official activity, the first of those being immune in the Court’s mind and the second not immune. He then weaseled a little by declaring that under certain circumstances, non-official activity could also end up being immune.
In that very same opinion, he drew another line in the sand. Quoting earlier precedents, he wrote, “The courts have ‘no power to control [the President’s] discretion’ when he acts pursuant to the powers invested exclusively in him by the Constitution.” On the other hand, “if the President claims authority to act but in fact exercises mere ‘individual will’ and ‘authority without law,’ the courts may say so.”
This, I believe, scratches the surface of the fundamental question of the moment. Do the appropriations bills approved by Congress in and of themselves make law of every line item contained therein? In which case, the President could well have exceeded his authority. Or to obtain the status of law, do programs and lines of spending need to be enabled by separate statute? If that’s the case, everyone is going to be scouring the books for what’s there and what isn’t.
Which brings us to the second sticking point. The spending cuts might appear to be random, but they are far from that. And this distinction is a more basic one than reversing policy on climate change, diversity, and what have you.
The first thing to note is that the President’s henchmen haven’t gone after military spending – the nation’s largest discretionary expense. Is that because the President is a big fan of the Defense Department or because the Constitution explicitly gives control of military spending to Congress?
Neither has he gone after Social Security or Medicare. Not that he won’t in the future but these programs are classed as mandatory spending that will require a longer-term approach than the quick strikes being dealt today.
Beyond that, a mantra is developing among Administration officials.
The new Energy Secretary said in an interview with Bloomberg News last week that “we will follow the law.” A spokesperson for the Interior Department said last week that the “ongoing review of funding complies with all applicable laws, rules, regulations and orders.”
This is all in keeping with the constitutional requirement that the President “take care that the laws be faithfully executed.” But what is the law?
One direct example comes from the disemboweling of USAID. It is funded through the Foreign Assistance Act, which without question is law that dates back to 1961. And what does the law say? In a key section dealing with the billions that up until now were allocated for agriculture, rural development and nutrition, right there in black and white it says: “The President is authorized to furnish assistance, on such terms and conditions as he may determine.”
With the fate of the entire Department of Education hanging in the air, Linda McMahon mentioned in her testimony to become its head that the handling of funds for special education could be moved to another department. Not eliminated but moved. Why is that significant? Because providing for special needs is mandated by long-standing legislation. It’s law. Other parts of the education budget, such as grants for education research, might not be so fortunate.
That’s where “the law” starts to get murky. To qualify as such, does it need to be codified in legislation specific to it? That’s a high standard. Or do non-specific headings in omnibus spending bills such as the 2022 Inflation Reduction Act and the 2021 bipartisan infrastructure law also qualify? That’s a lower standard.
The country’s highest tribunal could clarify matters by simply and unambiguously reiterating that Congress has the power of the purse. But that’s much too easy, the internal and external pressures on the Court far too great. It is very hard to imagine that the Court, in its version of wisdom, won’t somehow try to parse the baby. In so doing, it won’t be putting the executive branch in its proper place but rather will end up augmenting the power of the presidency.
One can readily imagine a parallel to Trump’s election interference case. Having laboriously established a distinction for immunity between official and unofficial acts, the Court sent the case back to district court to determine which of Trump’s actions fell into which category. (Of course, the clock ran out before that could be done.)
In whatever appeals it agrees to hear from the new wave of lawsuits, the Court could establish some high bar that must be met for funded programs to qualify as “law” and kick the cases back to the lower courts to determine which of the programs rise to that standard. Those that don’t would end up at the mercy of presidential discretion.
Everyone with a stake in federal funding better be puffing up their statutory imprimatur. Short of that, the Court will inevitably end up granting the President more power than heretofore we thought he had.
Marilyn: We’ve got “uneasiess” galore, and you’re right: WE have to become part of the conversation, so our Common Purpose comes at the right time.
This article implicitly claims that the checks and balances are breaking down because the legislature, the judiciary and the public are acquiescing. Taken together, the articles acknowledge that Trump is way overstepping but also, that every other part of our democracy is standing idly by. Maybe more of the blame falls on the other democratic institutions and civil society than on Trump?
We voters need to actively educate ourselves. We need to shed our complacency. We need to earnestly investigate all sides of political thought and action. We need to speak up intelligently without whining… to offer solutions. Our Common Purpose articles are excellent springboards for discussions. They promote an uneasiness through truth which is required for growth. Thank you.