The Official "Damned Trump" Thread: Phase II

[Angrboda]

The Trump administration’s justification for this clawback is, frankly, diabolical. Under the Impoundment Control Act, the president cannot withhold (or “impound”) appropriations without congressional approval. To obtain this approval, he must ask Congress to rescind the money by legislation. If Congress does not act within 45 days, the funds “shall be made available for obligation.” That process is the only lawful mechanism by which a president can refuse to spend appropriations.

But Russell Vought, Trump’s Office of Management and Budget director, thinks he has found a loophole in the Impoundment Control Act, and hatched a scheme to test it out. Under his guidance, the government waited until fewer than 45 days remained in the federal fiscal year, which ends on Sept. 30. On that date, many appropriations—including this $4 billion in aid—will expire. Once inside this 45-day window, Trump asked Congress to rescind the foreign aid. Now Vought claims that the government can decline to spend the money until Sept. 30, at which point it will vanish. The White House has boasted of this as a pocket rescission.

The problem with this tactic is that, under any remotely sensible reading of the law, it is flagrantly unlawful. As the Government Accountability Office has concluded, the Impoundment Control Act clarifies that appropriations have not been lawfully rescinded until Congress consents to the money’s revocation. Until that point, the funds remain “available for obligation,” and the president has a constitutional obligation to “faithfully execute” them by disbursing them as instructed. The Trump administration’s interpretation would transform the Impoundment Control Act from a limit on rescissions to a blank check for rescissions within 45 days of the fiscal year’s end. It would also amount to a line-item veto of any spending the president dislikes, which the Supreme Court has emphatically ruled to be unconstitutional. The entire plot violates both constitutional structure and clear statutory language that requires the executive branch to release the funds appropriated by Congress.

In light of this brazen illegality, U.S. District Judge Amir Ali ordered the government to start paying out the $4 billion on Sept. 3. Ali’s meticulous opinion eviscerated the Trump administration’s convoluted attempts to transmogrify the Impoundment Control Act into a line-item veto. (The judge also noted that government lawyers misquoted the statute itself “to reverse its meaning,” an alarmingly unethical ploy.) Congress, Ali explained, stated that the funds in question “shall be made available in the amounts specifically designated,” a directive that left the executive branch no discretion to impound them. And SCOTUS has long held that a court may order the government to “spend appropriated funds where the relevant statutes required that the funds be spent.” Drawing on this authority, Ali found Trump’s impoundment “arbitrary and capricious” and mandated its disbursement.

Predictably, the government appealed. After the D.C. Circuit denied a stay, the government begged the Supreme Court for emergency relief. (Ali anticipated this gambit, calling out the administration for manufacturing a phony “time crunch” as a cynical “litigation strategy.”) Given the ticking clock, the plaintiffs asked SCOTUS not to freeze Ali’s order—even for a few days through an “administrative stay” while all the justices mulled the request. But the chief justice granted such a stay on Tuesday anyway. The move was a bleak indication of where the court was heading; after all, as Ali wrote: “A stay of any length would directly contradict Congress’s statutory command each day that it is in effect.” By halting the injunction, Roberts let Trump keep running down the clock. Every minute closer to Sept. 30 gives the administration more cover to claim it doesn’t have enough time to disburse the funds.

John Roberts Just Rewarded Donald Trump for a Blatant Violation of Law. Again.