Every day, it seems President Trump makes headlines with actions raising serious constitutional concerns. On Monday, he stirred controversy by announcing a freeze on federal grants and loans, taking effect at 5 p.m. Eastern on Tuesday. This move prompted California and six other states to file lawsuits, resulting in a judge from the District of Columbia granting a temporary halt just hours before it was set to begin.
While the specifics of Trump’s order are murky and claim to leave Social Security and Medicare untouched, it potentially impacts trillions in federal spending that Congress has already approved. Under the Constitution, financial authority rests with the legislative branch, not the president.
Presidential interference in congressional spending isn’t just constitutionally questionable, it flouts the Congressional Budget and Impoundment Control Act of 1974. This law clearly dictates that when money has been appropriated by a federal statute, the president must spend it.
Historically, presidents have tangled with this power. Early American leaders like Thomas Jefferson claimed they could “impound” funds, occasionally declining to spend what Congress had allocated; however, this practice was always constitutionally dubious.
It wasn’t until President Nixon, however, that the idea of significant impoundment was tested. His attempts were repeatedly challenged in court and overwhelmingly found illegal. In the 1975 Supreme Court case, Train vs. City of New York, it was determined that Nixon overstepped his bounds by withholding funds related to the Federal Water Pollution Control Act, a law he unsuccessfully vetoed. The justices unanimously agreed he had zero authority to impede funds allocated by federal law.
Since then, impoundment has seldom surfaced, largely due to the 1974 statute designed precisely to curb such presidential actions. Interestingly, Nixon himself signed it into law as a limit to his own administration’s behavior. This law prohibits impoundment, allowing only brief delays and gives presidents a way to propose what’s known as a “rescission,” should they wish to cut spending. To do so, the president must present Congress with a detailed rationale. Congress then has 45 days to approve; otherwise, funds must be spent. Limited deferral of spending is possible, but only with Congress being duly informed.
In the current situation, Trump hasn’t notified Congress as required, rendering his spending freeze blatantly unlawful.
This isn’t Trump’s first brush with impoundment controversy. In his first term, he drew fire for withholding military aid to Ukraine, leading to the first impeachment proceedings because he allegedly pressured President Volodymyr Zelensky to investigate Joe Biden.
Fast forward, and Trump once again finds himself in hot water. This time, the controversy involves an unprecedented freezing of federally budgeted funds, labeling the Impoundment Control Act itself unconstitutional — a stance he voiced during his campaign. Even his allies, including presidential appointees like Elon Musk and Vivek Ramaswamy, have echoed this sentiment in publications like the Wall Street Journal. Russell Vought, nominated to head the Office of Management and Budget, also shared this view during his confirmation hearings.
They’re mistaken. The Constitution leaves no room for such interpretations. Congress is firmly in control of federal spending because it is the branch most accountable to the electorate. Justice Robert Jackson, in a famous 1952 opinion concerning separation of powers, emphasized that presidential power wanes significantly when contravening federal law. The Impoundment Control Act stands as a constitutional safeguard of Congress’s authority over finances.
On broader legal grounds, impoundment violates the fundamental separation of powers, a concept repeatedly upheld by the Supreme Court. It ruled against President Truman’s seizure of steel mills and Nixon’s attempt to claim executive privilege to block crucial evidence in a criminal case.
A swift judicial response is vital to address Trump’s extensive federal fund impoundment, just as the courts acted promptly with his attempt to rescind birthright citizenship rights. Trump’s bold assertions of power are quite alarming.
Erwin Chemerinsky, contributing to Opinion, serves as the dean of the UC Berkeley Law School.
