Tag: impoundment

The White House is withholding billions of dollars in federal funds for infrastructure and energy projects in blue states, a move legal experts say is likely unlawful.

Russ Vought, director of the Office of Management and Budget (OMB), announced on Oct. 1 that President Donald Trump’s administration is freezing about $18 billion in funds for New York City’s Second Ave. subway and the Hudson Tunnel Project, which will connect New Jersey and Manhattan.

Later that day, he said the administration is canceling about $8 billion in funding for energy programs he described as part of “the Left’s climate agenda.” The cuts will impact 16 states, all of which voted for former Vice President Kamala Harris in the 2024 election, including California, Massachusetts and Hawaii.

Then, on Oct. 3, Vought said $2.1 billion allocated for Chicago infrastructure projects would be paused “to ensure funding is not flowing via race-based contracting.”

When asked by McClatchy News about the legal grounds for the funding pause, an OMB spokesperson did not respond.

The moves come after Trump suggested he would use the government shutdown — which began on Oct. 1 — to slash funding for programs he opposes. He told reporters he can use the federal funding lapse to “get rid of a lot of things we didn’t want, and they’d be Democrat things.”

Democrats have criticized the moves, claiming the administration is weaponizing federal funding.

“It seems each morning, Russ Vought wakes up determined to abuse his authority to the detriment of working class families, middle class families, and vulnerable Americans,” Connecticut Rep. Rosa DeLauro said in a statement.

Meanwhile, legal experts argue that the OMB director’s funding cuts likely run afoul of the law, though they note that the Supreme Court has not yet ruled on the matter, leaving the issue unresolved for the time being.

What the law says

“Until recently, it was basic constitutional law that Congress, not the President, has the power to appropriate money, including making cuts in spending,” Michael Gerhardt, a professor at the UNC School of Law, told McClatchy News.

The Constitution repeatedly affirms that control over government spending — sometimes referred to as the power of the purse — resides with the legislative branch.

Article 1 Section 8 states that Congress “shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States.” And Article 1 Section 9 adds that “No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law.”

The executive branch asserting authority on spending power, therefore, “is certainly not consistent with how the Constitution has been interpreted for 238 years,” Eric Schickler, a political science professor at University of California, Berkeley, told McClatchy News.

A more recent law also reinforces that the authority to control spending is vested in Congress.

In 1974, Congress passed the Impoundment Control Act in response to President Richard Nixon’s withholding of congressionally appropriated funds.

The act “purports to prevent the president from refusing to spend money that Congress has directed him to spend,” Vikram Amar, a constitutional law professor at the UC Davis School of Law, told McClatchy News.

Still, the act grants the president limited authority to withhold funds, including for a 45-day period before Congress is required to respond. Vought previously indicated he may use provisions within the Impoundment Control Act to implement spending cuts.

“The Supreme Court hasn’t spoken clearly to this impoundment question and it sounds like it’s going to have to do so,” Amar said. Until it does so, the subject of withholding federal funds remains “a grey area,” Schickler said.

How the Supreme Court could rule

It remains an open question how the Supreme Court will come down on the question of the president withholding congressionally appropriated funds, experts said.

“Part of it depends on the particular statute and how mandatory congress styled the expenditure,” Amar said, noting there is a difference between saying “the president may spend money” versus “the president shall spend money.”

He said that, if the case before the court revolves around the latter, there’s a good chance the justices will side against the president.

Supporting this claim, Amar pointed to a 1990s era decision in which the court invalidated a statute by which Congress tried to confer line-item veto power to the president — which would have allowed him to decline to spend appropriated funds at his discretion.

“If a line-item veto is not even something the president can agree to, I don’t think it’s something he can simply assert himself,” Amar said.

Other experts, though, were less inclined to believe the court will rule against the president, pointing to recent court opinions.

“The Supreme Court, in the last year, has been rewriting the constitutional distribution of power, so that the President has unprecedented authority to do things that Congress used to have the sole authority to do,” Gerhardt said.

In late September preliminary ruling, the court allowed the Trump administration to withhold about $4 billion in foreign aid funding.

“The Supreme Court is certainly moving us toward a situation where, when Congress appropriates money to spend, the president nonetheless retains considerable discretion to actually spend the money, and that’s just never been true before,” Schickler said.

Practical implications

If the high court allows the Trump administration to move forward with freezing and cutting congressionally appropriated funds, there will be some immediate impacts, experts said.

“If it does become approved, it gives the president a lot more leverage than they ever had in the past,” Schickler said.

It would also likely make Democrats in Congress less inclined to vote for spending bills given that the president could strip any Democratic initiatives he deems fit.

“I think appropriations will have a much tougher time of ever taking place if the participants in congress can’t be sure the president will spend all the money and not just the money that one party seems to like,” he said.

This suggests that Congress — already plagued by severe partisan gridlock — could face even greater degrees of paralysis.