Every day it seems to bring more blatantly unconstitutional acts of President Trump. On Monday, the most atrocious was his announcement that he is freezing spending on all federal subsidies and loans from 5 PM Eastern on Tuesday. California and six other states are demanding to block the order, and on Tuesday afternoon a judge in the district of Columbia temporarily prevented that it came into force.
Although the exact terms of the order are not clear and it seems that Social Security or Medicare will not affect, it could affect billions of dollars in the federal expenditure that has been approved by Congress and assigned by the Federal Statute. The president has no authority to do this under the Constitution, under which the legislative branch possesses the power of the bag.
In fact, the presidential interference with the budgeted expenditure of Congress violates a Federal Statute, the Congress Budget Law and the 1974 report control. When a federal statute has been adopted that appropriate money, the president has no authority for refuse to spend it.
At the beginning of the history of the United States, Thomas Jefferson affirmed the power to “confiscate” and refuse to spend money appropriate by Congress. Other presidents occasionally did this, although it was always of doubtful constitutionality.
No president tried to use it widely to President Nixon. Their reservoirs were challenged in the courts and almost without exception were considered illegal. In Train vs. City of New York in 1975, the Supreme Court ruled that Nixon lacked the authority to confiscate federal monetary assistance under federal amendments of the water pollution control law of 1972, a program that had vetoed and by which the Congress had canceled his veto. The court unanimously argued that the law did not give Nixon the power to confiscate appropriate funds by the Federal Statute.
The question of the reservoir rarely resurfaced in the last half century because Congress, in 1974, approved a statute, the Packing Control Law, which prohibits such presidential actions. The law was adopted in reaction to the spare parts repeated by the Nixon administration and was actually signed by Nixon.
The law prohibits the presidential reservoir of the funds, but under certain circumstances it allows a brief delay and gives the president average to ask Congress to reconsider an appropriation, known as termination. If the president wishes to terminate the expense, he must send a special message to the Congress that identifies the amount of the proposed termination, the reasons of IT and the budgetary, economic and programmatic effects of the termination. After the president sends said message to Congress, he can retain funds for up to 45 days. But if the Congress does not approve the termination within this period of time, the retained funds must be disbursed. The law also allows the President to defer federal expenditure in other very close circumstances, but again with notifications required to Congress.
Trump has not made the notifications required to Congress, so his order this week to stop spending is obviously illegal.
In his first term, Trump also dedicated himself to the illegal reservoir when he retained military aid that had been appropriate for Ukraine. Trump was pressing his president, Volodymyr Zelensky, to investigate Joe Biden. This is what led to Trump's first dismissal by the House of Representatives.
Now, in his second term, while freezing the expense of a huge amount of federal money that has been appropriate by Congress, Trump is getting back to the illegal and unconstitutional reservoir of funds. Its position is that the Packing Control Law is itself unconstitutional. He said this as a presidential candidate. In November, they wrote the cost cutters of President -elect Elon Musk and Vivek Ramaswamy An opinion article In the Wall Street Journal saying this. More recently, Russell Vought, the candidate to direct the Office of Administration and Budget, took this position in his confirmation hearings.
This is wrong. The president is supposed to be Congress, he has control over federal expenditure. There is nothing in the Constitution that supports this. In fact, the editors made a deliberate decision to ensure that the most responsible government branch before the people, the legislative, was responsible for spending money. In addition, as Judge Robert Jackson observed in his historic opinion of the 1952 Supreme Court on the separation of powers in Youngstown Sheet and Tube Co. vs. Sawyer, the president's power is at its lowest point when he is violating a federal law. The Embediamment Control Law is a clearly constitutional law to protect Congress control over federal expenditure.
But even apart from the Packing Control Law, the reservoir is unconstitutional. On many occasions, the Supreme Court has said that it violates the separation of powers so that a part of the government interferes or usuris the powers of another branch. This is the reason why the Court declared the unintentional seizure of President Truman of the steel factories and why Nixon's claim of a right to invoke the executive privilege, which would have prevented a federal court to have necessary evidence would have necessary evidence, which would have prevented a federal court In a criminal case.
It is imperative that a Federal Court quickly find that Trump's great breach of federal funds is unconstitutional, since usurping the spending power of Congress, just like a court last week immediately invalidated his executive order to end citizenship of birth law. It is really chilling to see the amplitude of the power that Trump is trying to claim.
Erwin Chemendnsky, a writer who contributes to the opinion, is dean of the Faculty of Law of UC Berkeley.
