Trump’s budget cuts are unconstitutional

The president’s sweeping decisions to freeze spending, stop federal programs and withdraw from the World Health Organization raise foundational constitutional questions.

These are not presidential decisions to make, but are rather legislative mandates. The foundational principle of “no taxation without representation” lodges the authority in the United States Congress to raise revenues and authorize federal government expenditures. Therefore, the power of the purse is assigned exclusively to the Congress to raise revenues — and the Congress is the only one empowered to authorize and appropriate federal spending under the Constitution.

Unilateral presidential changes to the federal budget are unconstitutional. Full stop.

During President Nixon’s time in office, he engaged in numerous attempts to “impound” federal expenditures authorized and appropriated by Congress. There were a variety of court cases challenging his moves as unconstitutional. In all of these cases, the courts ruled against his impoundment attempts. One went all the way to the Supreme Court which, in a 9 – 0 decision, found that no law or statute gave the president the power to withhold funding of appropriated expenditures, implicitly confirming the exclusive authority of Congress in budgetary matters based on the Constitution.

At the beginning of Nixon’s second term, he engaged in more impoundments, refusing to disburse federal expenditure due to policy disagreements with Congress. Nixon’s refusal to respect the role of Congress in budgetary matters provoked both houses of Congress to pass “The Congressional Budget and Impoundment Control Act” in 1974. This law also created for the first time Budget Committees in the House and Senate to oversee federal spending in terms of both revenues and expenditures.

The Impoundment Control Act itself makes explicitly clear that an executive decision to not disburse congressionally authorized and appropriated funds is unconstitutional. The Impoundment Control Act requires the president to send to Congress a request to rescind disbursement. (Interestingly, the legislation provides that if the Congress does not act within 45 days of receiving the request for rescission, the president and executive branch are required to “obligate” or disburse the funds for their intended purpose.)

This is the law. Respecting the rule of law requires that President Trump now send requests for rescission to Congress for each of the executive orders he has issued to shut down federal funding or terminate federal programs authorized and appropriated by Congress.

Congress needs to insist that requests for rescission be sent to lawmakers before further impoundments occur, as well as for those executive orders already issued, to assure that the Constitution is upheld and the rule of law respected.

What is surprising in this moment of upheaval is that there is so little apparent clarity and clamor about the constitutionality as regards the president’s actions. Trump does not have the authority to make those actions alone, even without reference to the Impoundment Control Act.

The House and the Senate need to assert their constitutionally established, exclusive congressional authority in federal budgetary matters. They must not allow Trump’s abrupt changes in budget policies and violations of the Constitution to stand. They are not his to make.

Colin Bradford is an international economist who worked in the U.S. Senate and for the Senate Budget Committee during the second Nixon term when the Impoundment Control Act was enacted.

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