by
Win
McNamee/Getty
Images)
The
Trump
administration
continues
pumping
out
executive
action
at
the
pace
rivaling
a
trashy
romance
novel
pulp
house.
And,
like
the
trashiest
of
romance
novels,
each
installment
makes
you
go,
“Oh…
I
don’t
think
you’re
supposed
to
do
it
that
way.”
And
“I’m
pretty
sure
that
would
hurt.”
The
latest
vector
of
government
chaos
came
in
the
form
of
an
Office
of
Management
and
Budget
memo
vaguely
requiring
a
complete
spending
freeze
on
all
federal
public
loans,
grants,
and
other
assistance
by
5
p.m.
tonight.
Acting
Director
Matt
Vaeth’s
memo
—
which
no
one
seriously
believes
he
wrote
—
cited
the
more
than
$3
trillion
spent
last
year
on
“Federal
financial
assistance,
such
as
grants
and
loans”
before
instructing
agencies
that
the
administration
wants
spending
limited
to
its
goals
including
“ending
‘wokeness’
and
the
weaponization
of
government,
promoting
efficiency
in
government,
and
Making
America
Healthy
Again.”
And
since
the
last
bit
really
means
“Making
America
Catch
Polio
Again,”
the
memo
instantly
cut
off
Medicaid
in
every
state.
“The
use
of
Federal
resources
to
advance
Marxist
equity,
transgenderism,
and
green
new
deal
social
engineering
policies
is
a
waste
of
taxpayer
dollars
that
does
not
improve
the
day-to-day
lives
of
those
we
serve,”
seems
like
the
4chan
post
of
a
lunatic,
but
is
instead
an
edict
from
the
federal
organ
overseeing
public
funding.
In
case
you’re
wondering,
the
1974
Impoundment
Control
Act
(ICA),
yet
another
good
governance
statute
rooted
in
America’s
Nixon
hangover,
explicitly
bars
refusing
to
spend
congressional
appropriations
like
this.
But
once
and
future
OMB
General
Counsel
Mark
Paoletta
believes
the
power
of
the
purse
is
more
of
a
suggestion
and
that
presidents
can
take
money
allocated
by
Congress
and
say,
“Nah,
I’m
good.
I’ll
keep
this
one.”
But
Paoletta
is
riding
high
on
America’s
most
powerful
hallucinogen:
the
Unitary
Executive
Theory:
The
power
of
impoundment
is
one
such
executive
power
vested
in
the
President
alone
by
Article
II
of
the
Constitution.
As
discussed
below,
this
power
stems
from
the
President’s
conclusive
and
preclusive
authorities
the
Court
sets
out
in
the Trump
v.
United
States opinion.
Remember
when
John
Roberts
tried
to
play
off
Trump
v.
United
States
as
though
it
wouldn’t
be
read
to
bestow
monarchical
powers?
Good
times!
Paoletta
argues
that
“If
the
President
can
decide
which
laws
to
enforce,
he
can
decide
which
funds
to
spend.”
A
cute
analogy
to
be
sure,
but
it’s
much
more
like
telling
the
landlord
you
don’t
believe
in
rent
because
of
woke.
Sure,
you
can
do
that,
but
the
consequences
are
going
to
catch
up
to
you
fast.
In
A
Primer
on
the
Impoundment
Control
Act,
Professor
Zachary
Price
blows
up
this
fantasy.
The
ICA
explains
that
if
the
president
tries
to
withhold
funds
altogether,
the
executive
has
to
notify
Congress,
which
then
has
45
days
to
agree.
If
Congress
says
no
—
or
does
nothing
—
the
funds
must
be
released.
If
the
executive
branch
is
merely
trying
to
delay
spending
—
the
excuse
emerging
throughout
the
day
—
it
must
also
report
to
Congress
first
and
abide
by
some
key
restrictions:
Though
earlier
versions
of
the
statute
allowed
a
broader
range
of
deferrals,
the
ICA
today
allows
deferrals
only
“to
provide
for
contingencies,”
“to
achieve
savings
made
possible
by
or
through
changes
in
requirements
or
greater
efficiency
of
operations,”
or
“as
specifically
provided
by
law.”
The
upshot
is
that,
absent
specific
statutory
authority,
executive
officials
are
not
supposed
to
delay
spending
based
on
disagreement
with
the
policy
underlying
it;
they
can
instead
make
deferrals
only
to
address
practical
obstacles
or
to
employ
funds
more
efficiently.
As
explained
below,
however,
the
scope
of
any
authority
to
delay
spending
for
“programmatic”
rather
than
“policy”
reasons
has
emerged
as
a
recurrent
point
of
controversy.
Of
course,
asking
Trump
to
follow
statutory
procedure
is
like
asking
a
puppy
to
do
your
taxes
—
a
lot
of
chaos
and
incontinence.
Paoletta’s
batshit
read
that
Article
II
gives
the
President
unilateral
authority
to
ignore
congressional
appropriations
doesn’t
even
make
sense
in
the
context
of
the
president’s
constitutional
role
in
signing
or
vetoing
statutes.
If
Congress
approves
spending
on
a
specific
appropriation,
the
president
vetoes
it,
and
Congress
overrides
that
veto,
Paoletta
would
say
the
president
could
just
ignore
it
anyway.
In
fact,
presidents
tried
to
assert
a
power
to
halt
specific
projects
while
giving
Congress
the
power
to
override
that
veto
—
a
concession
Paoletta
isn’t
making
—
and
the
Supreme
Court
laughed
and
laughed.
It
is
also
worth
noting
that
Congress
attempted
to
establish
an
additional
form
of
impoundment
authority
in
the Line
Item
Veto
Act
of
1996.
That
statute
allowed
presidents
to
cancel
certain
spending
items
within
five
days
of
an
appropriation’s
enactment,
subject
to
a
congressional
override
through
expedited
new
legislation.
The
Supreme
Court,
however,
held
in Clinton
v.
New
York that
this
cancellation
power
amounted
to
an
unconstitutional
line-item
veto
(meaning
a
power
to
veto
particular
clauses
in
a
law
rather
than
the
bill
as
a
whole).
Although
the
Court
acknowledged
the
president’s
“traditional
authority
to
decline
to
spend
appropriated
funds,”
it
rejected
the
government’s
argument
that
this
practice
supported
the
Line
Item
Veto
Act’s
cancellation
power.
Unlike
all
prior
statutes
invoked
by
the
government,
this
one,
the
majority
reasoned,
gave
“the
President
the
unilateral
power
to
change
the
text
of
duly
enacted
statutes.”
Freezing
federal
disbursements
hurts
real
people
—
states,
businesses,
and
individuals
waiting
on
grants
and
loans.
These
delays
ripple
through
the
economy,
affecting
everything
from
infrastructure
projects
to
education
funding.
“And
while
Paoletta
couldn’t
care
less
about
the
human
fallout,
Congress
—
well,
at
least
the
members
who
occasionally
remember
they
represent
real
people
—
might.”
A
Primer
on
the
Impoundment
Control
Act
[Lawfare]
Joe
Patrice is
a
senior
editor
at
Above
the
Law
and
co-host
of
Thinking
Like
A
Lawyer.
Feel
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