Why President Trump’s Decision to Withhold Funding Authorized by Congress Is Likely Illegal, by Sam Wice

by Guest Blogger — Monday, May 15, 2017

President Trump’s recent objections to spending money appropriated under the Consolidated Appropriations Act of 2017 are likely illegal. The 708-page act funds the government for the remainder of the fiscal year and includes multiple specifications on how President Trump must spend money. In a signing statement, President Trump took issue with many of the provisions of the appropriations act. In a recent post, I explained how President Trump’s objections to 76 restrictions on spending money are generally unconstitutional. In this post, I will explain how his objections to nine spending provisions—which require him to spend money on programs that generally benefit minorities—are likely illegal.

The President does not have unilateral authority to refuse to spend appropriated funds, known as “rescinding” funds. Under the Impoundment Control Act of 1974, to rescind appropriated funds the President must (i) send a message to Congress informing it of the President’s desire to rescind funding and (ii) print the message in the Federal Register. The President must spend the funds if Congress does not affirmatively approve the rescission within 45 days. Although the Supreme Court has never directly examined whether the act is constitutional, in dicta, it has referenced the act as good law.

In his signing statement, President Trump objected to nine spending provisions and stated that he would treat them “in a manner consistent with the requirement to afford equal protection of the laws under the Due Process Clause of the Constitution’s Fifth Amendment.” Although President Trump does not outright say so, I take his statement to mean that he believes he could unilaterally rescind the spending provisions. The spending provisions are a required spending amount. If President Trump objects to following the spending provisions, the only other option is to rescind the funding.

However, President Trump has not followed the requirements of the Impoundment Control Act of 1974 for rescinding funds. First, assuming for the sake of argument that President Trump is correct that all nine provision violate the Fifth Amendment, President Trump would still need to send a message to Congress and the Federal Register expressing his desire to rescind the funds, which he has not done.

Second, even though any constitutional restrictions would supersede the Impoundment Control Act of 1974’s requirement of Congressional approval to rescind funding, it is not apparent that they violate the Constitution. Already, the programs President Trump seeks to eliminate have been implemented without constitutional issue. President Trump has not presented any affirmative analysis to show how the nine provisions violate the Fifth Amendment.

Thus, President Trump would likely act illegally if he follows through with his promise to unilaterally rescind the nine spending provisions in the Consolidated Appropriations Act of 2017. As a result, the institutions that do not receive the funding Congress provided them would have grounds to obtain the money through legal action.

 

Sam Wice is a former analyst at the Congressional Budget Office and a former Council member of the American Bar Association’s Section of Administrative Law and Regulatory Practice. He may be reached at sam.wice[at]outlook.com.

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