Thread by @MattGlassman312

Ok. Impoundment. Some links to relevant authorities and commentary, and then thoughts of my own. What Trump is proposing potentially amounts to an upending of the separation of powers, and while that's not *inherently* bad, in this case it's bad. Very bad. 1/ 🧵

1. The facts: last night, the Trump administration, via OMB, put out a memo directing a agencies to temporarily pause all obligation or disbursement of federal financial assistance. 2/

2. The memo is couched in terms like "consistent with law" but under current law and court precedent, the only way POTUS can temporarily pause spending of appropriated funds is via the Impoundment Control Act, which requires specific notice to Congress, which isn't mentioned. 3/

3. Under current law---namely the Impoundment Control Act (ICA)---the executive is required to spend funds appropriated by Congress, with very narrow exceptions. The Act also has a process for the executive to pause funds and request Congress consider rescinding them. 4/

Here's the link to the best CRS report on the appropriations power, and a long discussion of the Impoundment Control Act. 5/

crsreports.congress.gov/product/pdf/R/…

None of this appears to be what is happening here. The Trump Administration appears to be getting ready to challenge the ICA and claim an inherent constitutional authority to not spend appropriated funds. The Courts, GAO, and even DOJ OLC have consistently rejected that idea. 6/

Here's a very nice @steve_vladeck write up that goes through all of this. 7/

substack-proxy.glitch.me/articles/www-s…

What I'd like to discuss is the consequences. As I wrote last month, accepting inherent presidential authority to impound is akin to shifting the balance of power between legislature and executive to something that resembles 16th century England. 8/
mattglassman.substack.com/p/energy-in-th…

If Congress is reduced to only being able to negatively appropriate (that is, refuse to provide funds), you completely upend the balance of power. How can Congress build the military it wants if a POTUS could unilaterally cut funding by 50%? Or 80%? 9/

Even worse, such a POTUS power would make bargaining over spending impossible, because the executive could unilaterally reneg on any deal. Or use the threat of a reneg to force Members to his side on future laws. Want the funds spent for your favorite program? Vote with me. 10/

A Congress in this position wouldn't be helpless---they'd still have the negative power to condition use of money or to not appropriate it at all---but that's very weak, inconsistent with the vision of Framers, and totally contrary to American separation of powers theory. 11/

All of this is a long-time coming. I have consistently complained about lawless spending from Obama (Medicaid) and Biden (student loans). But Trump is taking it to 11 here. Impoundment makes unauthorized spending---which is awful---look like child's play. 12/

My gut reaction is that all of this will get laughed out of the Courts---that the ICA will be upheld, inherent impoundment authority will be DOA, and Trump will be put in his place---but maybe that's just optimism. 13/

But there's no other reasonable decision here. Pro-impoundment people love to pretend it was normal in American history right up until the Nixon disputes, but they are wrong, usually conflating *saving* money with impounding funds. 14/

All this said, Congress should not rely on the courts; the courts are not Congress's friend. Instead, they have plenty of power to retaliate. If push comes to shove, they should use the negative appropriations power: threaten to zero out all funds for OMB, or the whole EOP. 15/

POTUS has no constitutional right to the 2K EOP staffers that help him, or to a mansion on Penn Ave, or to a plane, or even security protection. That may sound ridiculous--and it is!---but it's no less ridiculous than POTUS unilaterally refusing to spend appropriations. 16/

Does Congress have the spine to do that? I doubt it. But a full-frontal assault on the appropriations power is game, set, match for Congress if it is upheld. Faced with that existential crisis, perhaps they could dust off the tools of power/ /end

One thing I forgot to note---the ICA doesn't even apply to funds Congress directly mandates to be spent by law, so it's not even possible for POTUS to pause/defer those things under the ICA. Doing so is 100% claiming inherent impoundment authority.