As Eloise Pasachoff, Zachary Price, and I describe in a forthcoming essay, the second Trump Administration is implementing unilateral executive control over federal spending—or “appropriations presidentialism”—with a breadth and magnitude that is unprecedented.  Much of the recent public discourse around this appropriations presidentialism has focused on DOGE’s “efficiency” efforts and OMB Director Russ Vought’s assertion of a constitutional power of the President openly to “impound” (defy laws that direct expenditure).  These are important issues, but focus on them has obscured an additional, important aspect of appropriations presidentialism that is currently developing in the realm of federal spending. This is the role that DOGE, and now OMB, have played in empowering the President to impose secret conditions on federal spending as a coercive tool to change the behavior of private institutions and individuals.  

In this blog post, I explain the recent history (through last week) of presidential power secretly to impound funds—with no one but the targeted institution or individual necessarily finding out.  I also describe the most recent development in this space: Following recent court orders preventing the administration from using DOGE access to Treasury payment systems as a way to impose secret conditions on federal grants, the administration last week illegally shifted this power to OMB. 

Secret conditions through OMB’s apportionment power: Start with a bit of recent history.  In 2019, Congress appropriated funds to aid Ukraine in its preparation for a potential Russian incursion. Subsequently-released administration documents revealed that the Department of Defense very much wanted to timely send these funds to Ukraine.  But the White House had other plans.  President Trump’s use of the term “do me a favor though” in a phone call connecting release of the funds to an investigation of Hunter Biden is well known, as it led to President Trump’s first impeachment.  Readers no doubt have strong and perhaps conflicting views about that infamous call.  But for present purposes I want to focus on the legal mechanism that made it possible for the White House to hold up the aid despite the Department of Defense’s desire to spend the funds: OMB used its “apportionment power” (a power given OMB by the Anti-Deficiency Act) to legally prohibit Defense from releasing the funds.  And OMB had legal authority to apportion funds secretly at the time, so it could do so without risking premature or unwanted disclosure to Congress or the public about what was going on.

The first Trump Administration was hardly the first to make use of the secrecy surrounding OMB’s apportionment power—its legal authority to direct delays in or conditions on agency expenditure.  Indeed, in a Yale Law Journal article written during the Obama Administration, Eloise Pasachoff described how the lack of transparency surrounding OMB’s power of apportionment—its ability to hold up expenditure in secret without anyone other than the victim knowing—was a threat to the separation of powers.

Congress requires OMB to make apportionments public.  Fast forward to the Biden Administration.  In the 2022 Consolidated Appropriations Act, Congress required OMB to post all apportionments to a publicly available website.  Congress then made apportionment transparency a permanent legal requirement in section 204 of the 2023 Consolidated Appropriations Act.  As I previously described in a post on these pages, this new requirement represented a relatively rare act of congressional institutionalism, with Democrats in Congress apparently putting checks and balances above party.  As I noted in a Federalist Society panel on the topic in 2021 (I am hoping FedSoc might reprise that panel now), requiring OMB to post apportionments publicly did not prevent the administration from modifying the timing of expenditures for efficiency or for other legitimate purposes.  It simply meant that if the White House wanted to modify spending for legitimate purposes it had to do so publicly.  And it meant that if the White House wanted to modify spending for illegitimate purposes—like taking taxpayer funds hostage to force concessions from individuals or institutions—it at least had to tell everyone what it was up to.  The Biden Administration complied with the law, creating a website to share apportionments and enabling a number of good government groups to better track spending at sites like openomb.org.

Trump 2.0 uses Treasury payment systems secretly to delay spending: This background puts in a different light the Trump Administration’s decision to implement funding pauses in its first two months not through OMB—as would usually have been the case in prior administrations—but rather through DOGE’s takeover of Treasury payment systems. Because of the new legal requirement that apportionments be transparent, White House-effectuated delays in federal spending using OMB’s apportionment power would have to be public.  As Rohan Gray describes in a fascinating, must-read article, the White House (through DOGE) instead used operational control over federal payment systems as a functional tool to control funding flows during the early weeks of the second Trump Administration.  (The Democracy Endowment’s complaint offers a particularly vivid description of the recent role of Treasury payment systems as a tool of presidential control.)

While I can only speculate about whether the comparative secrecy of changes through the Treasury payment systems played a role in the choice—and I’m going on the best information I can get to describe a fast-developing situation—in effect the early second Trump Administration seems to have substituted OMB’s legal authority over apportionment (which now must be exercised transparently) with DOGE’s functional control over federal payment systems.  During the administration’s first two months, it was apparently able to adjust funding schedules and flows without anyone knowing unless and until disappointed recipients sued or went to the press.  Openly defying one’s funder—the “hand that feeds”—is very hard to do, and I am aware of no effort to track just what fraction of funding pauses were publicly revealed and what fraction remained (and remain) under the radar.  That is a critically important aspect of secret executive conditions on spending—the ones we find out about may just be the tip of the iceberg. 

Courts clamp down on DOGE access to payment systems: As Gray notes, DOGE’s manipulation of Treasury payment systems brought its own legal problems.  In recent weeks lawsuits challenging that manipulation have been successful, and the courts have imposed injunctions constraining DOGE’s access.  These court orders once again made it difficult for the White House to directly effectuate delays or conditions on spending.  To be sure, agencies might still impose various conditions, and the President might order them to do so, but court orders addressing DOGE have substantially limited the White House’s ability to itself effectuate threats to federal spending directly through Treasury payment systems.

OMB breaks transparency law: Given this background, it may not be surprising that last week OMB pulled down the legally-required website through which it had been reporting on apportionments.  Readers of these pages will recall Bridget Dooling’s post in 2022 sharing that the Biden Administration had dutifully launched the legally-mandated apportionment transparency website, but anyone who directs their browser to apportionment-public.max.gov today will see a “page not found” banner. 

The law has not changed—OMB is still legally required to “operate and maintain [an] automated system” sharing apportionments—but OMB is no longer doing so.  A letter OMB sent Congress on March 29—described in a recent Congressional Research Service report—admits that the agency has pulled down the website and offers policy reasons OMB does not wish to report on apportionments but does not claim that the agency believes that failing to do so is consistent with law, let alone offer a theory supporting any such claim.  If I learn that OMB believes it is honoring the law, or if I learn of a plausible legal theory that OMB is honoring the law, I will update this post accordingly.  Until then, as with everything in this post, I can only offer my judgment that, based on what has been shared publicly, OMB is breaking the law.  (As an aside, I note that the administration’s choice to favor executive unilateralism over transparency and legality itself forces observers to speculate and undermines the legitimacy of OMB’s actions.  Unlike law, which is written down publicly for all to see, executive unilateralism inherently engenders uncertainty and controversy.)

While pulling down the website violates the law, it also empowers OMB to use its apportionment tool once again as a way to impose secret conditions on the use of federal spending without congressional or public oversight.  That ability will persist unless and until public pressure, congressional pressure, or litigation forces OMB to faithfully execute the law.  As a result, the administration for the time being has shifted the ability to impose secret conditions from DOGE to OMB.  This is a blog post, and I am trying here primarily to inform rather than to say whether I think this is good or bad.  That said, I do believe this is one of those places where understanding what seems to be happening reveals reason for concern.  Executive authority unilaterally to interfere with federal spending is a concern in its own right, but the executive’s ability secretly to do so is in my view a particularly acute threat to the separation of powers, liberty, and good governance for reasons Pasachoff describes here and here, Philip Hamburger describes here, and I describe here.  I encourage readers who agree to remain mindful of the role of secret conditions in tracking both DOGE and OMB actions.  “Efficiency” and constitutional law clashes may make headlines, but in the long run the ongoing struggle between Congress and the executive about transparency regarding presidentially-imposed conditions on federal expenditure may also prove impactful for the balance of powers, the operation of government, and the liberty of those who depend, one way or the other, on federal spending. 

Matthew B. Lawrence is an Associate Professor at Emory University School of Law.