Amicus With Dahlia Lithwick | Law, Justice, and the Courts Episode: Extra: The Federal Funding Freeze Release Date: January 28, 2025

Introduction

In this special Tuesday edition of Amicus, host Dahlia Lithwick delves into a critical development within the federal government: the issuance of a federal funding freeze memo by Matthew J. Veith, the Acting Director of the Office of Management and Budget (OMB). This memo has ignited concerns about a potential constitutional crisis and a significant power grab by the Trump administration. Dahlia is joined by Professor Stephen Vladek of Georgetown University Law Center to unpack the legal intricacies and broader implications of this unprecedented move.

Context and Background

The episode opens with Dahlia Lithwick setting the stage for what she describes as a "bona fide constitutional meltdown." On a Monday night, a two-page memo from Matthew J. Veith instructed all federal agencies to pause their grants and loans programs effective Tuesday at 5 PM. The memo criticized the use of federal resources to support policies labeled as "Marxist equity, transgenderism, and Green New Deal social engineering," deeming them a misuse of taxpayer dollars. This directive has come amidst a tumultuous period for the federal government, already grappling with the dismissal of inspectors general, prosecutions against former President Trump, and various administrative upheavals.

Notable Quote:

"This is a DEFCON power grab in plain view by a Trump administration that does not believe that Congress or the courts will stop him."
— Dahlia Lithwick [00:37]

Legal Analysis with Professor Stephen Vladek

Professor Vladek provides a comprehensive analysis of the memo, clarifying the role and powers of the OMB. He explains that while the OMB does not inherently possess the authority to halt federal funding, it operates as an extension of the President's office. Therefore, directives from the OMB are effectively Presidential mandates. Vladek emphasizes that interpreting and complying with such directives falls under the purview of individual federal agencies, potentially placing agency heads at risk of dismissal if they do not comply.

Notable Quote:

"OMB doesn't actually have like formal authority to tell agencies what to do. But OMB is effectively speaking for the President, and the President does."
— Stephen Vladek [07:23]

Impoundment Control Act and Constitutional Implications

A significant portion of the discussion centers around the Impoundment Control Act (ICA) of 1974, which was established to prevent Presidents from unilaterally withholding funds appropriated by Congress. Vladek points out that the Veith memo blatantly contravenes the ICA by attempting to impound funds without adhering to the statutory procedures outlined in the Act. He underscores that the ICA explicitly prohibits temporary deferrals of funds, rendering the current memo unlawful.

Notable Quote:

"The Impoundment Control Act specifically says no temporary deferrals. Like, you know, are impoundments. You can't get around an impoundment by saying it's only a short one."
— Stephen Vladek [11:36]

Potential for a Constitutional Crisis

Dahlia and Vladek explore the alarming possibility that this funding freeze represents a broader authoritarian shift within the executive branch. If the administration successfully impounds funds across the board, it challenges the fundamental separation of powers enshrined in the Constitution. Vladek warns that such actions, if unchecked, could undermine the legislative branch's power over the federal purse strings, essentially allowing the President to override Congressional appropriations at will.

Notable Quote:

"A world in which what we're fighting over is the substantive question of whether the president can impound money for any reason at any time is a world in which we're fighting over whether we have the separation of powers or not."
— Stephen Vladek [23:10]

Supreme Court's Role and Judicial Response

The conversation shifts to the judiciary's potential response, particularly the Supreme Court's stance on executive overreach. Vladek expresses cautious optimism that the justices, recognizing the gravity of undermining the separation of powers, will resist such attempts to concentrate power within the executive branch. He references past decisions where the Court has pushed back against similar overreaches, suggesting a precedent that may serve to check the current administration's actions.

Notable Quote:

"Whatever you think of John Roberts and Brett Kavanaugh and Amy Coney Barrett, they're not gonna buy that. And the more that they see that coming out of Congress, the more entrenched they will be when these kinds of cases come to them."
— Stephen Vladek [26:21]

Implications for Future Governance and the Rule of Law

Vladek emphasizes that allowing the President to impound funds at will would fundamentally erode the legislative branch's power and the rule of law. He contends that while immediate legal challenges may arise, the long-term threat to the constitutional framework is profound. The potential undermine of the Impoundment Control Act could set a dangerous precedent, enabling future administrations to bypass Congressional authority and executive checks.

Notable Quote:

"We have to be at least a little bit realistic about what it means to live in a society with the rule of law, which is that governments will often do things that are inconsistent with the rule of law... But that the way we persist long enough to elect a different government is to preserve the rule of law, even if it's not going to protect us in every moment."
— Stephen Vladek [36:56]

Conclusion and Future Outlook

Dahlia concludes the episode by highlighting the urgency and severity of the situation, urging listeners to stay informed and engaged. She acknowledges the support of Slate Plus members in producing such critical discussions and directs listeners to additional resources for deeper insights. The episode underscores the precarious balance of power within the U.S. government and the pivotal role that legal institutions and the judiciary play in maintaining constitutional integrity.

Notable Quote:

"Steve Vladek discusses how the rule of law persists even when governments try to circumvent it, emphasizing the importance of judicial and legislative checks in preserving constitutional governance."
— Dahlia Lithwick [38:42]

Key Takeaways

• Federal Funding Freeze: A memorandum from the OMB has initiated a halt on federal grants and loans, raising significant legal and constitutional concerns.
• Impoundment Control Act Violation: The memo potentially violates the ICA by attempting to impound funds without following statutory procedures.
• Separation of Powers Threatened: If unchecked, such actions could undermine the legislative branch's authority and the foundational separation of powers.
• Judicial Oversight Crucial: The Supreme Court and other judicial bodies are pivotal in addressing and rectifying executive overreach to maintain constitutional balance.
• Ongoing Constitutional Crisis: The situation represents a broader struggle over executive authority and the preservation of the rule of law in the United States.

Further Resources:

• The Shadow Docket by Stephen Vladek – A New York Times Bestselling book exploring how the Supreme Court's stealth rulings impact American democracy.
• Slate's Substack by Stephen Vladek – In-depth legal analyses and updates on ongoing constitutional matters.
• Upcoming episodes of Amicus – Stay tuned for more detailed discussions and expert insights on evolving legal and political landscapes.