AYESHA RASCOE, HOST:
When he came before the Senate committee considering his nomination to head the Office of Management and Budget, Russell Vought was asked this by Senator Patty Murray, Democrat from Washington State.
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PATTY MURRAY: Will you, if confirmed as director, faithfully follow the law - the Impoundment Control Act - yes or no?
RUSSELL VOUGHT: Senator, we will faithfully uphold the law. The president ran on the notion that the Impoundment Control Act is unconstitutional. I agree with that.
RASCOE: Turns out, the Impoundment Control Act was at the heart of the confusion surrounding the Trump administration's attempt to freeze federal grants and loans last week. And, yeah, you're forgiven if you're kind of scratching your head over what that means. We have Stephen Vladeck with us again. He's a Georgetown law professor and author of a newsletter about the Supreme Court called "One First." Welcome to the program.
STEPHEN VLADECK: Thanks, Ayesha. Great to be with you.
RASCOE: So what is the Impoundment Control Act, and why does it matter that President Trump and his OMB director nominee think that it's unconstitutional?
VLADECK: Sure. So I think it might help to take a half-step back and talk about what impoundment is first. So impoundment is a sort of fancy term that we've come up with to describe when Congress appropriates money. Congress says, hey, federal government, we want you to go spend this money, and the president says, no.
And so it's basically a power that a handful of presidents had claimed every couple of years throughout American history on a very small scale but that had never been endorsed by the Supreme Court, by Congress, by anybody until Richard Nixon came along. And then Nixon, in the early 1970s, used it so much that Congress finally was impelled to pass a statute, the Impoundment Control Act, to explain when impoundment can happen and, most importantly, when it cannot. And so it's the product - right? - it's an effort by Congress to create clarity where, before 1974, we had, you know, a consensus that a president could not impound by himself, but we didn't have resolution.
RASCOE: OK. And so the Impoundment Control Act says that a president can't just not spend money appropriated by Congress?
VLADECK: It says, in general, presidents can't impound. But then it creates some circumstances where it says, maybe you can. So for funds that are not what we call mandatory appropriations, for funds where the executive branch has any discretion about whether to spend the money or how much to spend the money, the Impoundment Control Act authorizes the president to go back to Congress and say, hey, Congress, here's a pool of money I don't want to spend. And the statute, Ayesha, creates this procedure for Congress to resolve expeditiously whether it's going to let the president impound those funds or not.
The critical point here is, 1, that's only, you know, some of the money Congress appropriates. A lot of it can't be impounded at all. And 2, there's no argument that that statute is what President Trump's Office of Management and Budget was following last week when it had this crazy, massive federal spending freeze.
RASCOE: Trump and his OMB director nominee, Russell Vought - they are saying that this law is unconstitutional. Is there a good faith legal argument to be made that favors President Trump's view of empowerment?
VLADECK: No. And, you know, this is not one of those cases where there's, like, some good arguments on one side and some good arguments on the other. What the president is claiming is what we should call a unilateral power to impound, even when Congress has said, no, you can't. And the executive branch has historically - except, you know, really during, like, the Nixon administration - taken the position that this power doesn't exist.
So in 1985, there was a junior lawyer in the White House Counsel's Office named John Roberts - we know him better today as the Chief Justice of the United States - who wrote a whole memo on how the president could not impound without help from Congress. The Office of Legal Counsel in the Justice Department - which is, you know, usually pretty pro executive power - wrote in a 1988 memo that there's just no historical support for a unilateral impoundment power.
These examples - you know, they're not, like, conclusive proof, Ayesha. But they really do testify to just how deeply understood it was that the impoundment power is not something the president's allowed to exercise by himself because the power of the purse - Congress' control of the appropriations process - is really just about the most important thing Congress does. And if the president could just decline to spend any money Congress appropriates just because he doesn't want to, then that effectively defeats Congress' single most important power, and it really renders Congress much more subservient to the president.
RASCOE: So then how much is this a stress test of the separation of powers?
VLADECK: Oh, I think it's an enormous stress test. I mean, if the president were able to win this fight - if we came out of this, you know, a year from now or two years from now with a Supreme Court decision saying, actually, there are some circumstances in which the president has a unilateral impoundment power, that would be a pretty stunning reallocation of power from Congress to the president. You know, I think this is a stress test for the separation of powers. I think it's a stress test for, you know, the extent to which this administration is going to dig its heels in when it loses in court versus actually sort of stepping back.
And frankly, I think we've already seen at least a little bit of backtracking by the Office of Management and Budget, rescinding that memo on Wednesday. You know, I don't think we're done with this conversation, of course, but I think that's a sign that they understand they're not on the firmest footing legally.
RASCOE: So where do you see the legal fight over this headed next?
VLADECK: So, you know, we already have two federal courts - one in Washington, D.C., one in Rhode Island - that have blocked any freezes relating to OMB's Monday order, even though OMB purported to rescind that order on Wednesday. The Rhode Island judge, for example, said, I don't believe you, because the press secretary went out and said, no, no, no, we're still freezing funds. Those cases might go forward, Ayesha.
I think this is not the fight. I think there's going to be a second fight, a second-generation effort, where the administration tries in a more nuanced way, perhaps in an area where they have a stronger claim to some overlapping executive power like foreign affairs. I think that's probably the fight the administration is going to try to pick versus trying to get the courts to endorse a unilateral impoundment power in the context of basically cutting off a huge chunk of the entire federal budget.
RASCOE: That's Stephen Vladeck, Georgetown law professor. Thank you so much for joining us.
VLADECK: Thanks, Ayesha. Transcript provided by NPR, Copyright NPR.
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