Does the Constitution Require Presidents to Spend $$ Congress Authorizes ?
It Depends -- Trump Has 3 Legs to Stand on
John Yoo, professor of Law at the Christian college UC Berkeley (named after Irish Christian nationalist George Berkeley) has written another excellent article on the constitutional power of the presidency in National Review.
Trump has three legs to stand on in refusing to spend money authorized by Congress.
By way of background consideration, spending is an executive action. Authorizing, appropriating funds is legislative. But the lines appear blurry here and there. For instance, Congress spends money on itself, which we’ve just said is an executive action. Congress has its own security outside of the executive branch, called the Sergeant at Arms. It has its own research arm, accounting agency, and Library. It hires and fires its own employees, grounds crews, kitchen personnel, secretaries, maintenance, attorneys, etc. So Congress, in order to function at all, exercises some executive authority in order to protect the separation of powers. Relying purely on the executive to protect Congress, to hire and fire secretaries, or grounds crew would be odd. If the president didn’t like the latest bill, he could just refuse to cut their grass, or order sensitive secretaries to shred documents or be fired. Congress doesn’t give those executive functions to the executive in order to protect separation of powers.
Similarly, the executive performs some legislative actions in this blurry middle ground between executive and legislative.
As John Yoo argues, there are at least three (3) ways federal executives (the president) can freeze spending.
To lay the factual groundwork for challenging a law in court.
To administer a program Congress authorized more efficiently for the taxpayer.
To protect the Constitution, as his oath not only authorizes, but demands.
3.1 To protect Constitutional rights of citizens.
Examples:
3.1a Congress authorizes the ATF to spend XYZ $ amount on revoking Federal Firearms Licensees (dealers) who have made a single scriveners error on a single document, thereby removing the right to buy a firearm for entire geographical regions in the United States the size of Orange County. The president could refuse to spend that money because it violates the Second Amendment right of the people to keep and bear arms.
3.1b Congress authorizes XYZ $ to discriminate on the basis of race in college admissions and in hiring and firing in the form of mandated DEI curriculum and training, and to enforce kangaroo courts without due process rights for the accused on college campus. The president could freeze that funding for violating the equal protection and due process clauses of the Fourteenth Amendment.
3.2 To protect the Constitutional design of separation of powers.
Examples:
3.2a Congress mandates that a president must notify Congress prior to engaging in any military operation. The president is Commander in Chief and can repel foreign invasions immediately without permission from any other Constitutional office.
3.2b Congress mandates that a president notify Congress prior to receiving an ambassador or issuing a pardon. The president has those powers at his sole discretion. John Locke called the power of foreign affairs a “federative” power, and the only time Congress comes into play with that power is in authorizing funds to enforce a treaty, build and fund embassies, etc., and of course in ratifying treaties in the Senate. Congress can hold investigative hearings related to all of these things, but the president need not ask for permission before receiving one ambassador over the other from a war torn country such as, for instance, Ukraine, if two different factions sent two different ambassadors.
John Yoo couches this fight most recently in the Watergate-era attempts at reducing the power of the president in these line-drawing fights between the legislature and the executive. As he argues, presidential power is inherently energetic historically because the Constitution itself created and sustains it as such.
Trump is on solid ground for much of what he is doing.
Follow John on Linked In for 1 minute summaries of his volumous writing. He does several per week on current affairs.
John was one of the first guests on The Republican Professor Podcast.
Here’s John’s National Review article on the issue of Executive Impoundment, as the scholars call it — part of the Executive Discretion controversy in Constitutional Law.
Luke, for Trp