On Friday, a federal judge in Rhode Island granted a temporary restraining order to 22 states and Washington, D.C, that asked for a pause of Trump’s proposed pause on federal spending. The decision was hot on the heels of a Washington federal judge’s decision to, at least temporarily, halt Trump’s proposed spending freeze as applied to open grants. On Monday evening, the judge in the Washington case extended her decision to pause the freeze.
If this invokes school civics lessons that taught that Congress, not the president, has the power of the purse, you’re right.
The freeze in question came last week when, in a short memo, the Trump administration, via the acting director of the Office of Management and Budget, sought to temporarily freeze an enormous swath of federal funding, apparently including everything but funding for programs that provide direct assistance to people, such as Social Security and Medicare. This is money that supports programs including early childhood education, assistance for disaster victims and aid for farmworkers. The Trump’s administration’s stated purpose was to ensure that federal funds were not used to support “Marxist equity, transgenderism, and green new deal social engineering.”
If this invokes school civics lessons that taught that Congress, not the president, has the power of the purse, you’re right.
Trump’s attempt to, even temporarily, push pause on federal grants and loans most likely flies in the face of our constitutionally constructed separation of powers, not to mention a decades-old federal statute, the Impoundment Control Act of 1974. The act gives the president the power to push pause on Congress’ spending decisions only in limited situations, and only with the subsequent consent of Congress. Essentially, with respect to certain federal funds, the president can make proposed deferrals regarding the spending of those funds, but Congress can refuse that request within 45 days.
There is a very, very good argument that Trump’s proposed funding freeze violates the act. Trump did not fulfill the statutory requirements that the act lays out, and he seems to be requesting the pause of funds outside the scope of those he is allowed to seek to pause.
Thus far, this feels like a fairly open and shut case against the Trump administration. So what will the Trump administration argue when faced with a federal law that certainly appears to prohibit this federal funding freeze?
For one, the Trump administration could argue that the federal law itself is unconstitutional. It is not a problem to violate a law if the law itself is invalid.
The president could argue that while Congress has the power to spend money, under the Constitution, the president has the power to stop spending money, even when Congress has appropriated it for a specific purpose. To be clear, that argument contradicts decades of understanding about what the Constitution’s spending clause provides, not to mention the Impoundment Act. It also borders on nonsensical. The Constitution directs the president to “take Care that the Laws be faithfully executed.” Trump would have to argue that faithfully executing the laws means, in part, undermining Congress’ spending decisions. This would seem to make the very existence of Congress a bit superfluous. The Trump administration could argue that the federal law itself is unconstitutional. It is not a problem to violate a law if the law itself is invalid. I know what you’re going to say next. “But Trump appointed one-third of this conservative Supreme Court; won’t it automatically rule in his favor?” And the answer is, no, I don’t think it will. Federal judges have lifetime appointments for a reason, so they aren’t beholden to the public or the presidents who appoint them. President Richard Nixon filled four Supreme Court seats. Every one of those justices ruled against Nixon in a landmark case in which the justices unanimously concluded that he had to turn over his secret Oval Office recordings to a special prosecutor investigating the Watergate scandal. Get ready for this pattern to continue. Step 1: The Trump administration takes an action that expands the power of the executive branch and most likely violates federal law. Step 2: Someone sues and a federal judge blocks the Trump administration’s action. Step 3: The Trump administration argues that the law blocking its ability to proceed itself violates the Constitution. Under this argument, even if the Trump administration violated a federal law, it had the right to do so, because the law itself is invalid. Step 4: We collectively hold our breath while we wait for a final word from the Supreme Court. In a country where disagreement is the norm, one thing should be beyond debate: Trump is seeking to dramatically increase the power of the presidency. And at least for now, two federal judges are not having it. The federal judge in Rhode Island specifically found that “there is no evidence that the Executive has followed the [Impoundment Control Act of 1974] by notifying Congress and thereby effectuating a potentially legally permitted so-called ‘pause.’” The judge concluded that “[t]he Court finds that the record now before it substantiates the likelihood of a successful claim that the Executive’s actions violate the Constitution and statutes of the United States.” We will have to see whether this holds as the case proceeds.
Jessica Levinson is a Loyola Law School professor and MSNBC columnist. 
