The Weekend Long Read: The Constitutional Questions of Trump's Spending Powers

"Lucretia" looks beyond the bad faith arguments of Trump's hysterical critics.

A number of pundits, desperately clutching their pearls, have claimed that President Donald Trump’s Executive Orders, especially those freezing government grants and contracts, violate the Constitution, the separation of powers, and existing federal law. Dean of UC Berkeley Law School, Erwin Chemerinski, even went so far as to claim that Trump is the elected dictator who will make all of Chemerinski’s prophesies, conveniently set out in his recent book No Democracy Lasts Forever, come true. Chemerinski warned that unless the courts, the Republican Congress and the American people stand up to this authoritarian dictator, it will be end of—God forbid!—Our Democracy™.

Despite what recent polls might indicate, most of Trump’s actions after his first 100 days are meeting with approval from the American people (with young people approving or strongly approving by more than 70%). Indeed, the chattering class is desperately trying to make the case that Trump’s policies are unpopular and are wasting no time joining the left in denouncing President Trump, and especially his volunteer head of the Department of Government Efficiency (DOGE) Elon Musk. Those opposed to Musk’s attempts to weed out government corruption, waste, and inefficiencies ignore or dismiss the daily revelations that billions of dollars have been diverted to questionable leftist causes. Moreover, it is becoming clearer by the day that billions more are finding their way through a labyrinth of non-profits and non-governmental organizations into the coffers of those same leftists protesting the loudest. These include journalists at publications who have been notoriously “anti-Trump.” To say that this raises serious legal, ethical, and constitutional issues—far beyond the chimera bemoaned by Chemerinski—is a vast understatement.

There are other commentators insisting that they deplore the kind of waste, fraud, and abuse that Musk and DOGE are unearthing, but nevertheless are appalled at their “methods.” Ivan R. Eland writes in Real Clear Politics that Trump is attempting to resurrect the line item veto and to challenge the Budget Impoundment and Control Act of 1974 through his freezing of payments on grants and contracts. Eland asserts that Trump’s objective may be to provoke the judiciary into overturning past Supreme Court precedents restricting the exercise of these powers by the president. Certainly, there have been enough ill-advised, not to say indefensible, rulings by lower federal court judges attempting to thwart Trump’s ability to accomplish his goals through executive orders to move questions regarding the limits of presidential power through the judicial process all the way to the Supreme Court.^[1] While it makes for great cocktail party conversation to speculate how the current Supreme Court might rule on such cases based upon the personalities, judicial “philosophies,” and political leanings of the justices, it is possible—and necessary—to place the exercise of presidential power in the larger context of the separation of powers within our Constitution.

It the first place, the current understanding of presidential power must be understood within the context of the Watergate scandal (itself likely precipitated by Nixon’s attempt to rein in the bureaucracy), which resulted in a number of “reforms” that impeded or restrained the exercise of presidential power. These included such wide-ranging legislation as the War Powers Act, the Federal Elections Campaign Act, and the aforementioned Budget Impoundment and Control Act. Each of these were designed to correct what had allegedly become the “imperial presidency” and to restore to Congress its supposed rightful place in the separation of powers. Of course, there was no real danger of an imperial presidency posed by the Nixon Administration; rather, Nixon was vilified for what was clearly an attempt to rein in the administrative state that had become uncontrollable by the purported head of the administration and to break the hold that congressional committees, bureaucratic agencies, and well-connected interest groups had on federal policy and federal spending.

Presidents have generally complied with the Budget Impoundment and Control Act since its passage in 1974. Title X of the Budget Impoundment and Control Act, referred to as the Impoundment Control Act (ICA), which fundamentally shifted the balance of power regarding budgetary control to Congress, prevents the executive branch from deciding how or when appropriated funds should be spent. Prior to 1974, presidential impoundment of federal funds was a common occurrence, with presidents like Thomas Jefferson and Ulysses S. Grant using impoundment to manage government spending, often in cases where they believed the funds were unnecessary or the programs were ineffective; and presidents in the 20^th century impounding funds to manage military spending and to reduce the federal budget.

Richard Nixon's administration significantly expanded the use of impoundment, no doubt to rein in a federal budget that had more than doubled over the previous decade, due to growth in social programs and defense spending. Nixon’s attempts to curtail spending led to significant controversy, legal challenges, and ultimately to the passage of the Budget Impoundment and Control Act. The ICA imposes significant limits to the president's powers over federal spending, requiring that all funds appropriated by Congress must be spent for the purposes designated unless Congress explicitly authorizes the president to impound or delay the spending of these funds.

· If the president wishes to permanently cancel or reduce funding for a program, he must propose a rescission to Congress. Congress then has 45 legislative days to approve the rescission. If Congress does not act within this period, the funds must be released for spending.

· The president can defer the use of funds on a temporary basis, but this must be reported to Congress. Congress can then disapprove the deferral through a legislative process, and if disapproved, the funds must be made available.

· The president must report any proposed rescissions or deferrals to both Houses of Congress.

· The ICA also gives the Government Accountability Office (GAO) the power to sue the president in court if it believes the president is illegally withholding funds. A supposedly independent agency of the executive branch is authorized by Congress to sue the head of the executive branch to force the president to spend money

It is incontestable that the passage of the ICA has not “controlled” either spending or the federal budget and has been an unmitigated disaster for the country. Federal outlays in 1975 were approximately $332 billion. In 2024, federal outlays totaled approximately $7 trillion. To say that attempts by Congress to force itself to control spending through legislative action have been unsuccessful would be a gross understatement. Since the passage of the ICA and the explosion of the federal deficit, Congress has tried different mechanisms to rein in federal spending, including: automatic spending cuts triggered by deficit targets; discretionary spending caps; PAYGO mandatory offsets; and sequestration. These efforts produced little more than short term gains and did nothing to change fundamentally the political or procedural framework within Congress that rewards appropriating money and punishes fiscal restraint. Much has been written about the perverse incentives that tie individual members of Congress to parochial, unnecessary or wasteful spending; suffice it to say that only the president has potentially the will and the incentive to view federal spending from the perspective of the national good. Of course, that does not mean that all presidents will exercise their power in that way; but holding a president accountable for extravagant or wasteful spending remains a more effective check than trying to hold individual members of Congress answerable through the electoral process.

This is why Trump’s attempts to freeze Treasury payments while DOGE reviewed expenditures for waste, fraud, and abuse and for alignment with the president’s priorities, as well as his promise to eliminate entire federal departments and programs, have proven so powerful and so controversial. Trump’s actions have certainly reignited the debate over presidential spending power. Attempts to redirect funds or freeze aid unilaterally have faced legal challenges under the Impoundment Control Act, which mandates congressional approval for withholding appropriated funds. Members of Trump’s administration are on record asserting that the ICA is unconstitutional, and a small number of constitutional scholars are in agreement. The orthodox position, however, is that congressional spending power is plenary, and that the president’s only constitutional role is to carry out the wishes of Congress as articulated in statute.

Upon what basis could the Supreme Court be convinced to declare the ICA unconstitutional? Are there criteria that reasonably define when and how the president in the performance of his constitutional duties can delay or refuse to spend appropriated funds?

Congress has only the powers granted in Article I, § 8. Those relevant to this discussion would include

· Provide for the common defense and general welfare of the United States

· To raise and support armies...

· To provide and maintain a navy

· To make rules for the government and regulation of the land and naval forces.

· To make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by the Constitution in the government of the United States, or in any department of officer thereof.

It is difficult to speculate how these powers, extensive as they are, could supersede any exercise of power by the president that legitimately falls in the category of “executive.” Certainly, Congress’ powers are limited to the enumerated power (and the appropriate means to carry out those powers), but it does not follow that the president’s executive power, unlimited by the phrase “herein granted” should be confined to the powers enumerated in Article 2, § 3 & 4. It is also worthy of notice that the president’s charge under the Constitution to execute the laws has an element of ambiguity. The phrase is not that the president “shall execute the laws”; it is that the president "shall take care that the laws be faithfully executed.” Knowing that the framers were careful in their choice of words, it is not unreasonable to read the phrase as allowing or even encouraging presidential discretion in the execution of the laws. That such execution must not only be done with care but also “faithfully” seems to indicate that the president has a higher obligation than merely to be the obedient servant of Congress. Indeed, insofar as the doctrine of executive prerogative can be gleaned from Article II, the president at times must use his executive power for the public good, as John Locke says, as long as the people "acquiesce in it when so done."

Alexander Hamilton, in the Federalist Papers, provides the extraordinary justification for vesting in a president “the executive power.”

Energy in the Executive is a leading character in the definition of good government. It is essential to the protection of the community against foreign attacks; it is not less essential to the steady administration of the laws; to the protection of property against those irregular and high-handed combinations which sometimes interrupt the ordinary course of justice; to the security of liberty against the enterprises and assaults of ambition, of faction, and of anarchy.

An important element of that “energy” that Hamilton celebrates is found in the Vesting Clause (Art. II, § 1), which grants the president broad executive power, including discretion over how to execute appropriations. The ICA’s requirement that the president seek Congress’s permission to withhold funds (even temporarily) transfers this authority to the legislative branch, creating an impermissible check on executive power when its exercise is most needful.

One further point regarding the rationale for impoundment would include the possibility that Article I, Section 9 is relevant to the question of whether Trump can impound funds appropriated by Congress.

"No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law; and a regular Statement and Account of the Receipts and Expenditures of all public Money shall be published from time to time."

How one interprets this, of course, is the rub. But there is certainly a case to be made that Congress is not following the letter of the law in its exercise of the appropriations power. The Court has indicated that Section 9 means simply that there must be an authorization statute passed by Congress, however generic and vague, to fulfill the constitutional requirement. Yet thinking about the purpose of this section, i.e., to ensure Congress and not the president would have the power to appropriate funds from the treasury but also to ensure that Congress remained accountable to the people for those appropriations, one could certainly argue that the current appropriations process with omnibus spending bills, etc., violates the original understanding of Section 9.

The rationale behind the efforts by President Trump’s and DOGE to restrict federal spending, as articulated in executive actions, public statements, and related initiatives, and for which Trump claims a public mandate, centers on targeting waste, fraud, and bureaucratic inefficiency; promoting transparency; empowering states; fulfilling voter mandates; and modernizing technology. These rationales tap into public frustration with government bloat and rising debt, supported by GAO data on improper payments. Trump and DOGE emphasize that taxpayers deserve to know how their money is spent, criticizing opaque spending on programs that “undermine national interests” or fund “ideological projects.” He argues that voters rejected Biden-era spending (e.g., $6.7 trillion budget in 2023) and demand fiscal responsibility to address the $36 trillion national debt. While there is support in Congress from Republicans (e.g., House Oversight Committee’s DOGE Subcommittee) for Trump’s efforts to curb federal spending, the political dynamics of both the Senate and the House are likely to limit any legislative backing for sweeping cuts, regardless of their genuine popularity with the American people.

Trump’s executive actions, such as the February 2025 executive orders mandating agency reviews of contracts and grants, mass terminations of federal employees, and DOGE’s unilateral cancellation of $25 billion in contracts and $33 billion in grants, have triggered over 60 lawsuits alleging violations of the ICA and congressional authority. Federal courts have already blocked actions like a government-wide spending freeze, citing the ICA’s requirement for congressional approval of rescissions and deferrals. These rulings demonstrate a tangible dispute suitable for Supreme Court review. The Court will then have to resolve a critical question of separation of powers: whether the Congressional Budget and Impoundment Control Act of 1974 unconstitutionally restricts the president’s inherent Article II authority to manage federal spending by requiring congressional approval for impoundments.

Historical precedent certainly supports presidential impoundment authority. As noted above, presidents from Jefferson to Nixon impounded funds to control waste or respond to changing circumstances. These actions were understood as part of the executive’s duty to execute laws prudently. The president, as the sole officer accountable to the entire nation, is uniquely positioned to make real-time fiscal decisions, unlike Congress, which is slowed by partisan gridlock (e.g., failure to pass budgets on time in 17 of the last 20 years). By contrast, Congress’s power of the purse governs appropriations, not their execution. Once funds are appropriated, the president has discretion to manage their use, as recognized in pre-ICA impoundments by multiple presidents. The current actions of the Trump Administration align with these pre-ICA practices but are made all the more important by the crisis he inherited and was given the popular mandate to address. The Court should find that it is the president’s constitutional duty to “faithfully execute” appropriations by ensuring that federal expenditures are aligned with the national interest. By striking down or narrowing the ICA, the Court can restore the proper balance of powers, ensuring the president can execute laws faithfully while respecting Congress’s appropriations authority.

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^[1] Should these injunctions be reviewed by the Supreme Court, the decision in Mississippi v. Johnson 71 U.S. 497 ( 1867) offers a valuable—and likely controlling—precedent. In that case, the Supreme Court considered the question of whether the courts could place an injunction on the president or on his subordinates acting in his name. Noting the distinction between the presidential exercise of his “ministerial duties” (such as that at issue in Marbury v. Madison) and his exercise of discretion in the execution of the law, the Court clearly denied any judicial power to review the latter:

Very different is the duty of the President in the exercise of the power to see that the laws are faithfully executed….The duty thus imposed on the President is in no just sense ministerial. It is purely executive and political.

An attempt on the part of the judicial department of the government to enforce the performance of such duties by the President might be justly characterized, in the language of Chief Justice Marshal, as "an absurd and excessive extravagance."