← The Lawfare Podcast
Loading summary
Transcript48 lines
- [00:01]
Molly Reynolds
The following podcast contains advertising to access an ad free version of the Lawfare Podcast. Become a material supporter of lawfare@patreon.com lawfare that's patreon.com Lawfair also check out Lawfare's other podcast offerings, Rational Security Chatter, Lawfare, no Bull and the Aftermath A Real.
- [00:33]
Ryan Reynolds
Lemonade Pet Insurance Review by Madison H.
- [00:35]
Madison H.
You know, I thought it was a little ridiculous to get pet insurance, but I really didn't want to not take my little kitten to the vet because of money. In the last eight months I've taken him in six times because of ear infections and saved literally hundreds of dollars. You may even need to get surgery and I couldn't consider it without Lemonade's help. I recommend Lemonade to all my friends constantly and now I'm recommending it to you.
- [00:58]
Ryan Reynolds
Ch it out@lemonade.com pet Ryan Reynolds here from Mint Mobile with a message for everyone paying Big Wireless Way too much. Please, for the love of everything good in this world, stop with Mint. You can get premium wireless for just $15 a month, of course, if you enjoy overpaying. No judgments. But that's weird. Okay, one judgment anyway. Give it a try@mintmobile.com Switch upfront payment.
- [01:25]
Madison H.
Of $45 for 3 month plan equivalent to $15 per month required intro rate first 3 months only, then full price plan options available, taxes extra. See full terms@mintmobile.com.
- [01:36]
Molly Reynolds
If Congress is the boss and the President is the employee when it comes to how to spend the taxpayers dollars, if you have an employee and you trust them with a lot of things and there's like one or two instances where they break the trust or kind of go outside the lines that might not ruin the system or something, but then if they're just breaking the trust all of the time, then it could break down that entire system. You might need to rethink how you structure your oversight of that employee altogether.
- [02:02]
Matt Lawrence
It's the Lawfare Podcast. I'm Molly Reynolds, Senior Fellow at Brookings and Senior Editor at Lawfare, with Matt Lawrence, Associate professor of Law at Emory, Eloise Pasakoff, professor of Law at Georgetown, and Zach Price, professor of Law at UC Law, San Francisco.
- [02:17]
Eloise Pasakoff
It's not that the Impoundment Control act itself is what is making impoundments unconstitutional or illegal. The President has no inherent constitutional authority to impound, and that's kind of regardless of whether there's a statute on the books or not.
- [02:32]
Matt Lawrence
Today we're talking about the President, Congress, and the power of the purse. We're going to talk about a new paper the three of you have written called Appropriations Presidentialism. We'll get into what that means. But I want to start off with what I think is a really helpful framing in the paper, which is a frame of the annual congressional appropriations process, the process by which Congress allocates the discretionary federal budget, which is about a third of what the federal government spends in a given year. You talk about that as being de facto stable, but de jure fragile. Those are sort of technical, ish Latin words, but I think it's a really useful way to describe the process, actually, both for lawyers and non lawyers alike. So let's start off by talking a little bit about what you mean when you describe the process in that way.
- [03:23]
Eloise Pasakoff
We often, when we're having legal conversations, talk about the difference between something being de facto, by which we mean it's just the way it is on the ground, it's the facts, and something being de jure, which is Latin for in law. And so the difference between those two things in general is just what is the actual law versus what is the reality of how it works on the ground. And so when we're thinking about the spectrum of the way Congress puts money into different kinds of laws, there's a kind of law that's very stable in law, which is called mandatory spending. And if you think about a lot of big programs like Social Security or Medicare, those are mandatory programs. They are de jure stable because the money and the program themselves are sort of designed at the same time to be permanent, basically. And on the other end of the spectrum, we have the annual appropriations process, where most money in the annual appropriations process is annual. Right. It's just like one year money. And so in principle, that kind of money is not really stable de jure. It's not really stable by law because every year Congress has the opportunity to come in and change it when it changes the annual appropriations law during that annual process. So de jure, there's a big distinction between these two kinds of spending. De facto, though mostly, there's a lot of stability in the annual appropriations process. The committees don't change over entirely. The President is in power for a particular length of time, and you don't build budgets from the ground up every single year. You usually build budgets from where you're starting. And so just in practice on the ground, there tends to be a fair amount of stability even in the annual appropriations process. I don't want to overstate that. Certainly there are big changes when, you know, but they tend to be about big policy changes as opposed to across the board, governmental kind of operations of government. So one of the things we're talking about in the paper is kind of opportunities to change some of that de facto stability through the appropriations process that we're seeing right now.
- [05:40]
Matt Lawrence
Even in light of that sort of de facto stability, de jure fragility, I think, to understand the moment that we're in, to understand what the Trump administration has been doing, I think it's really important to kind of understand the historical context that brought us here, in addition to sort of that conceptual framing that you just laid out. Eloise. So, Zach, maybe I'll start with you. Can you talk a little bit about executive overreach into Congress's appropriations power? Historically, like, this isn't new. Where have we seen it before? And then also, why is what we're seeing now different than what we've seen before?
- [06:18]
Ryan Reynolds
Sure. So I think there's always been a degree of irregularity and push and pull in the appropriations process, but it is there to different degrees and in different forms over time. So if you go way back to the 19th century, the process is very different. Agencies would submit their budgets to Congress independently and then would often, you know, spend money or not spend money in ways Congress didn't expect. But I think that was a pretty different kind of legal and institutional context. The modern sort of budget process really starts in 1921 when Congress sets up in this big landmark reform. It requires the president to submit an annual budget, and then Congress starts from there and establishes the annual appropriations on that basis. And then that process gets sort of refined and reformed over time. In the 1960s, 1970s, there was concern about presidents, particularly not spending money that Congress wanted them to spend. So Congress needed another big reform in 1974 that kind of had Congress create its own budget. So it gave Congress more authority, but also specifically outlawed what are called impoundments, meaning, you know, not spending money that Congress has appropriated. So I think through that process, you got a pretty, at least for a time, a pretty functional budget system where Congress appropriates annually, and there's a pretty strong norm of compliance in the executive branch with what Congress prescribes. But then, as listeners are probably aware, in recent decades, we've entered this period of increasing polarization, more ideological parties and presidents who often feel they need to accomplish things to satisfy their. Achieve their platform. But getting legislation through Congress is difficult. So we get a lot of areas where presidents are kind of acting more unilaterally, asserting broad powers. And that has started to pop up in the spending context. And we've had issues in the past few administrations about spending, but I think the new administration has really dialed that trend to 11, particularly with spending and particularly with impoundments have not really been that big an issue since 1974. But this administration seems to be making a push to give itself more authority to not spend money, even when Congress requires it.
- [09:08]
Matt Lawrence
I want to sort of drill into this a little bit. And Matt, maybe I'll come to you on this question, which is in each of the past several presidential administrations, and you point this out in your paper, sort of Obama, Trump won, Biden. There are things that we can point to that were examples of those presidents doing things that represent kind of an expansion of executive power over congressional spending decisions. So can you sort of walk us through a couple of examples and kind of maybe build a little bit on how were those different than what we're seeing now, potentially both in scope and in kind?
- [09:50]
Molly Reynolds
Sure. And I'll say just the way I kind of envision it, a lot of Congress's commands and instructions about how taxpayer dollars are spent are enforced by the executive. So Congress sort of trusts the executive to enforce its instructions and commands about how to spend taxpayer dollars in the system that Eloise and Zach described. And that's a kind of a contrast from some other areas where we might think that law is enforced, like, primarily by the courts. You know, that's not to say courts don't have a role in this space, but there's just a lot of trust built into the system on the executive branch. Sometimes it's trust to follow the law. So the law says do or don't do this. But even still, that's kind of primarily going to wind up enforced within the executive branch. And sometimes it's more trust to follow guidance. So sometimes Congress gives instructions not in the statute that's legally binding, but in, like a committee report where it says, you know, we know you, we're letting you spend this on any purpose, but actually we're expecting you to spend it on blank. And there's just trust that mostly the executive is going to follow that. And what we've seen kind of isolated examples of going back, you know, several administrations, but we could go find them at other times in history is presidents breaking that trust to some extent. And so that might be presidents not following kind of instructions from Congress that aren't actually legally binding but are instructions. But that's, that's sort of normal. Like, that's part of the push and pull that Zach And Eloise talked about. But then we also see examples of presidents doing things that seem to violate the law. So the self enforcement, you know, didn't, didn't work in that moment. You know, a couple that I kind of would list, but, you know, Zach and Eloise might list others, and we list several in the paper. In the Trump administration, there was shifts in how to use border wall funds. And there's also a holdup of Ukraine aid. And like the hold up of Ukraine aid seemed to be an impoundment that violated the law Congress had put in place. If we look at the Biden administration, a really very famous example in that mold is the loan forgiveness case. Now, the Biden administration, of course, would say that loan forgiveness was lawful, and there was an OLC opinion explaining that in great detail, but the Supreme Court disagreed with that. And so ultimately, from kind of a legal litigation perspective, that was going outside the lines drawn by Congress as determined by the Supreme Court. Another example I think of from the Biden administration is at the very beginning of the Biden administration, they paused funding for the wall. So there had been wall funding that was appropriated, and they paused it and they said that it was compliant with law because they were pausing it because the law required them to pause it like other parts of the law. So they had a justification that GAO wound up accepting. But it was, it was kind of pushing on unilateral executive defiance of the funds that had been appropriated by the, by the previous Congress. And so those are kind of examples of that. And then, you know, we could talk more about that and I'll stop and see what Zach and Eloise have to say. But if you have an employee and if Congress is the boss and the president is the employee, when it comes to how to spend the taxpayer's dollars, if you have an employee and you trust them with a lot of things, they get a company car and they get petty cash, and there's like one or two instances where they break the trust or kind of go outside the lines that might not ruin the system or something. But then if they're just breaking the trust all of the time, then it could break down that entire system. And you might need to rethink how you structure your oversight of that employee altogether. And that's the sort of thing that we're thinking about now. So I'll stop there in case Eloise and Zach have.
- [13:36]
Eloise Pasakoff
So, Matt, your last comment was just teased up perfectly what I was just going to say, which is that in many of the prior examples that Matt just alluded to. I think there were sort of two kinds of things going on. One, there was actually a national emergency of some sort. So like, Zach can maybe talk a little bit about an example from early in the Obama administration where there was some questionable use of TARP funding, for example. Right. Like, not totally clear that the law allowed that. But. But, you know, it was like kind of an. The economic system had crashed. Another thing beyond an emergency that I think you saw in some of the previous examples were a signature presidential priority. And so even we could pull out the first Trump administration in this regard. The wall was a signature presidential priority. Or another famous example from the Obama administration is certain spending on the Affordable Care Act. That was not. Clearly there were arguments in favor of it, but it was not totally clear that there was an appropriation to spend that particular kind of money. So, great. So we have an emergency or we have a signature presidential priority. I think those two things fall in the category that Matt was just talking about. About. Okay, well, once or twice, maybe the employee doesn't do something. Exactly. Doesn't necessarily explode the whole system. But I think what we're seeing right now is something entirely different. It is kind of left and right across the whole scope of government, across the whole scope of not just individual programs, but throughout entire agencies in addition to individual programs, but not just individual cancellations, wholesale cancellations and macro targeting in a sort of a retributive punitive kind of way that we saw the very beginnings of at the tail end of the last Trump administration, some of which I documented in a previous paper called Executive Branch of Federal Grant Making Colon Policy, Pork and Punishment. So I was definitely trying to track the punishment degrees of the first Trump administration, but nothing like the full scale kind of thing that we've seen now. And this is really what we're trying to get at in this paper, is that these are not just isolated examples. It is an effort to kind of do a wholesale transformation on the way we think even about executive branch spending operations that really is transforming this whole relationship. And that poses big challenges for the separation of powers for the legal system in general. And that's kind of what we. What we're trying to tee up as we think through some of these issues in the paper.
- [16:15]
Matt Lawrence
Yes, let's talk about that, because I think there's one, like, really obvious cost of what the executive branch is doing here, which is in terms of what it means for Congress's power, like direct pretty obvious that if the executive branch is expanding its power here, that is coming at A pretty straightforward weakening of Congress's own power when the executive branch is ignoring congressional decisions. But I think there's sort of the second dimension too, which is what I want to talk about next, which is what happens when, if Congress is willing to get itself walked all over by the executive branch in this context, which is kind of what I would argue is happening now, if Congress is willing to be weakened by the executive branch, then we have individual plaintiffs of various kinds, whether they're nonprofit organizations, state, local governments. We can sort of list, we can make a very long list of people who have gone to court in the last three months over what the Trump administration is doing in this context. These folks have had to turn to the, the courts for relief because Congress, its decision making has been disregarded by the executive branch. And so when courts have gotten involved in these cases, like, what does this look like and why is this sort of an uneasy place for the courts in our separation of powers system?
- [17:48]
Ryan Reynolds
I think the way you framed it is right. And to go back to some of the history, I think part of the reason this stuff is really important is that the executive branch has generally become more powerful over the past century, and that's largely through statutory delegations of authority, but also through assuming broader theories of constitutional power in areas like the military and use of force and foreign affairs. But in that context, the appropriations process is where Congress maintains an ongoing check on what the executive branch is doing. So that's why it's, I think, really structurally important for separation of powers and checks and balances for these congressional powers to remain robust. But as you suggested, if the executive branch is making broad claims, as we see in other areas too, the natural response is to go to court. And on some level, courts then are kind of backing up Congress's power. And there are lots of places where that can work just fine. But I think the problem you run into in some of these issues is that courts are good at sort of saying something is out of bounds legally or inadequately justified, but they tend not to want to get into kind of actual programmatic operation of government agencies or these kind of day to day administration type problems. And that's often really what's at issue with spending, is sort of is an agency carrying out its functions in good faith, Is it spending the money in the ways it should? Is it really trying to achieve Congress's objectives or doing something different? So those are areas where a kind of political check through Congress is often more appropriate because that's where you can get kind of push and Pull and re channel what agencies are doing. Courts generally are a bit weary of getting into the business of overseeing those sorts of day to day operations. So I think that's the challenge that some of this litigation presents. There are also issues of kind of timeframe spending. Also it's an annual appropriation. So there's a kind of timeline that often doesn't line up well with timeframes for litigation. So there are lots of reasons why courts have a bit of trouble coming to grips with some of these sorts of problems.
- [20:30]
Molly Reynolds
The challenge of courts is the solution, which isn't to say courts aren't a big part of the solution. But we have this kind of happy world where Congress is actually closely involved in the administration of how taxpayer dollars are spent. But it's also giving a lot of flexibility to the executive branch, trusting it, you know, and I think we all want to be that employee that's trusted by our manager. We think we can get a better job done. We have that world, maybe we're losing that world because the employee is breaking the trust. And then if the idea is, oh, we're just going to have kind of courts in rigid rules and the like, that might be necessary to protect people. But ultimately that will lead to Congress passing more mandatory statutes, more permanent spending. So there'll be less flexibility year to year. There'll be less congressional power. Congress will also be more specific in appropriations enactments itself. You'll say, exactly, here's how you should spend the money. Now that will retain congressional power. But then you'll have less effective executives and less effective programs. So like drug treatment is largely funded by grants from, from, you know, taxpayer funds. We have several million people who need drug treatment. Only a fraction of them get it. And currently, you know, there's a lot of flexibility where there's, there's money that goes out, but then there's grants that either the executive or the states can decide how best to spend it. So maybe in a particular city, you know, the money needs to go towards, you know, a particular purpose and another it needs to go towards, you know, community health, whatever you can calibrate, you can make the best use of taxpayer funds you can get. If we lose that trust and we just switch to kind of this very rigid decisions about how to spend taxpayer dollars, then you'll just have this high up formula that Congress will have no choice to set because it can't trust the executive anymore. Here's how you must spend the dollars here and there and then we'll get more of those instances where we say what a waste that was, or that money should have gone to that other person or something like that. And so there's. That might not. That may be our best future, but it would be kind of a sad future because it would lose what was kind of special and useful about the process that Eloise and Zach were describing earlier.
- [22:27]
Matt Lawrence
Yeah. So sort of to get a little bit more specific on this question in the paper, you all list out a set of what you call hard questions that are on the horizon for courts in these cases that are arising about spending. We're going to talk about some specific kind of pending developments in a minute. But as a framework, I think these questions that you set up are really useful for folks who are trying to get their heads around what is happening. Eloise, do you want to sort of walk listeners through what you all see as these hard questions that are on the horizon here?
- [23:04]
Eloise Pasakoff
Sure. So we sometimes distinguish in lawsuits between access to court questions, which we sometimes give a shorthand. We call that justiciability questions, and then what we call decisions on the merits or whether the underlying thing itself is legal or illegal. And in our paper, we set up a bunch of complicated questions in the access to courts or just disability bucket that the courts are basically wrestling with right now before they even get to the merits, which in some sense we think the merits are maybe not even so hard in a lot of instances. But the question is, can you get to the merits? And so some of these justiciability questions involve what's called standing or the question of who can sue. So sometimes it's straightforward. If your grant has been taken away, you are injured, you have an injury. And so it's probably not such a big question about whether you can sue. But, like, if a whole agency is being dismantled, is there anybody who really has clear standing in that kind of context? You know, there's some questions that courts have been grappling with around that. So that's an example of an. A preliminary justiciability question around who can sue or standing. There's also questions about is this even the kind of law that you can sue under? So not every law provides what's called a cause of action. And so it's unclear sometimes if there's a cause of action. For example, in an appropriations provision, is that something that you can. That there's a cause of action that Congress has allowed different people to sue under that? There's other different kinds of justiciability questions about whether the particular thing the executive branch has done is even able to be reviewed. So an example of that that Matt actually has done a bunch of writing about is the question of reviewability of what's called lump sum provisions in an appropriations law. So when there's just a bucket of money, right? Like this is what Matt was just describing as a bucket of money being given to an agency to generally do thing X with. Maybe there's some instructions in the underlying committee report, but, but you know, it's not in the law itself. So courts have held that that is the kind of provision that maybe itself isn't really reviewable and there's exceptions and so forth. But, but that's a challenge that that courts are facing. There's also a question of timing. When is the right moment for spending decisions to be reviewed? So is it when a thing has been announced? Is it when the thing has been happened? When's too early, when's too late? Right. Especially against the backdrop of many spending decisions being just annual.
- [25:57]
Matt Lawrence
Right.
- [25:57]
Eloise Pasakoff
Like what's the moment where the money even is going to have disappeared because it's no longer. The fiscal year has expired. And then the last of the preliminary challenges that we talk about in this part of the paper is about even what court you should be bringing the lawsuit in. So the two main paths here are the ordinary process of bringing a lawsuit in federal district courts for. You know, Zach a minute ago talked about two classic kinds of challenges. Is this illegal? Is this action within the text of what the statute allows? And does it have adequate justification, which we sometimes call is that arbitrary or capricious? Those are two classic kinds of legal arguments that are heard under something called the Administrative Procedure Act. And those all just generally proceed in district court. Federal district court. But there's another court, the Court of Federal Claims, that hears suits for money damages. And a lot of the defenses that the current administration is offering at this preliminary justiciability stage.
- [27:01]
Matt Lawrence
Right.
- [27:01]
Eloise Pasakoff
Access to court. The administration is arguing that all of these cases about funding cutoffs have to be heard in the Court of Federal Claims, which is narrower in a lot of ways than the normal federal district court. So it's just an overview of some of these preliminary difficult challenges before, again, you even get to the merits.
- [27:21]
Madison H.
Instacart is on a mission to have you not leave the couch this basketball season because between the pre game rituals and the post game interviews, it can be difficult to find time for everything else. So let Instacart take care of your game day snacks or weekly restocks and get delivery in as fast as 30 minutes because we hear it's Bad luck to be hungry on game day. So download the Instacart app today and enjoy zero dollar delivery fees on your first three orders. Service fees apply for three orders in 14 days.
- [27:50]
Molly Reynolds
Excludes restaurants, work management platforms.
- [27:53]
Matt Lawrence
Ugh.
- [27:54]
Molly Reynolds
Endless onboarding. It bottlenecks admin requests. But what if things were different? Monday.com is different. No lengthy onboarding, beautiful reports in minutes, custom workflows you can build on your own. Easy to use prompt, free AI. Huh. Turns out you can love a work management platform. Monday.com the first work platform you'll love to use.
- [28:21]
Ryan Reynolds
Ryan Reynolds here from Mint Mobile. I don't know if you knew this, but anyone can get the same Premium Wireless for $15 a month plan that I've been enjoy. It's not just for celebrities. So do like I did and have one of your assistant's assistants switch you to Mint Mobile today. I'm told it's super easy to do@mintmobile.com.
- [28:39]
Madison H.
Switch upfront payment of $45 for three month plan equivalent to $15 per month required intro rate first three months only, then full price plan options available, taxes and fees, extra default terms@mintmobile.com.
- [28:55]
Matt Lawrence
So we're going to come back to this question about the Court of Federal Claims and its role in this in a second. But before we do that, Matt, I'd love to hear you talk a little bit more about this question of reviewability that Eloise mentioned and this notion that and I think for lots of folks, again, including myself, who's thought a lot about kind of the congressional side of this, the idea that there are some questions that courts have said they simply will not, they cannot weigh in on in this context. So can you tell us a little bit more about what that looks like?
- [29:30]
Molly Reynolds
Yeah. As Eloise was saying, in order to sue, one thing you need is a cause of action. And when I teach admin law, I always say these are like keys to the courthouse door. Like you can't even get in to say how you've been wronged if you can't turn the key. And one of the keys is a cause of action. And this law, the Administrative Procedure act, provides a general cause of action if an agency wrong a final agency action from an agency wrongs a person. So the Administrative Procedure act is like I always say, our Constitution for administrative agencies and how they kind of govern, and it provides a general cause of action. So normally the Administrative Procedure act gets you through the courthouse door to at least argue about the merits. But there are exceptions, situations that are, quote, committed to agency Discretion by law, where courts have said these pockets of areas, actually you don't automatically get into court under the apa. It doesn't give you a cause of action. And one of those is from a Supreme Court case called Lincoln B. Vigil, where the Supreme Court said if an agency is allocating a lump sum appropriation, then we will presume that that is committed to agency discretion, which means you don't even get to court. Now, in my article, I explained how the Supreme Court sort of made that up. And you know, I would say that I think it probably made it up to protect, to give this zone of trust for the executive at a time where that made a lot of sense. And so that's one of the reasons I don't think that that doctrine makes sense anymore. But it did. It is a doctrine that's on the books and is a barrier. So that's one challenge on the cause of action front is do you have an APA cause of action or is it committed to agency discretion? And then I want to say one more thing on this point, which is even if the apa, the Administrative Procedure act, doesn't give you a cause of action, there's sometimes cases where you might have a cause of action under, say, the Constitution. Or we could talk about the Tucker Act. So one thing we're seeing is some of the uses of executive authority over spending have challenged the freedom of speech and have raised like freedom of speech or equal protection concerns. And in those sorts of cases, plaintiffs will say, hey, courts, regardless whether there's a cause of action under the apa, you should recognize a kind of a constitutional cause of action that would separately get me that key through the courthouse door. And you could tell how nitty gritty all of this stuff is and how sleepy it was for many years because our system was generally working. And so there wasn't that much need to press on some of these questions.
- [31:50]
Matt Lawrence
Yeah, this notion that, and you guys get into this in the paper, which is that we had sort of a soft power arrangement that sustained a lot of these, that was sort of sustained by relationship and that we didn't need to. We had no reason to kind of figure out the bounds of a lot of these questions. You know, I've talked a lot about the fact that, you know, like we haven't talked too much today about the Anti Deficiency act, but that's the law that basically prevents agencies from obligating funds that Congress hasn't appropriated to them. And we've, you know, basically never seen anyone prosecuted under the anti Deficiency act, like the law worked too well for us to know what it looks like to use that as a check on executive branch power. So I do want to get into a couple sort of specific questions and cases that are arising. And the first one, the first question I have here is actually about constitutionality and less about sort of these First Amendment claims or these equal protection claims that you mentioned, Matt, but this question of the constitutionality of the Empowerment Control act itself. So we know, because OMB Director Russ Vote has said so many times that he believes that the Empowerment Control act, the piece of the Congressional budget Act of 1974 that basically prescribes what the president has to do if he seeks to rescind or cancel funds that Congress has appropriated, the Empowerment Control act specifies what the president has to do in that case. And OMB Director Vogt has said that he believes that law is unconstitutional, that that is a it's an infringement on executive power. But as you all know in the article, the administration has really not based any of its claims, any of the cases that we've seen so far, on the grounds of the constitutionality of the Impoundment Control act itself. So just curious about sort of like, why do you think that is and what might an actual constitutional challenge to the Impoundment Control act look like?
- [33:55]
Ryan Reynolds
It's probably partly just tactical, I think, you know, if you can generally, courts are going to be more receptive to a narrower statutory type argument than a kind of broad constitutional argument with a lot of implications beyond the case at hand. So if you're litigating particular cases on the government side, I think it normally makes sense to not swing for the fences that way. So it could just be tactical. I do also think that the constitutional argument for a presidential impoundment power is quite weak. And I think a lot of commentary across the bottle of spectrum has been suggesting that. So that might also be making them nervous about that. So, on the other hand, as you said, the key figures at Ombre who'd been in government before and have come back in the second Trump administration last summer were making quite clearly the argument that they thought the Impoundment Control act was unconstitutional. So a scenario could arise where they need to make that argument. But I think they probably want to do it in a context where the facts are favorable and where they don't have a good alternative statutory argument. Seems to me it's something that might be more likely to come up after the midterm elections if their relationship with Congress, you know, Democrats win one another, House they might end up in a much more adversarial relationship with Congress and be faced with pretty clear mandates that they want to disregard. And that might be a context in which they want to reach for their constitutional argument more directly.
- [35:46]
Eloise Pasakoff
I think I would just underscore that it's not that the Impoundment Control act itself is what is making impoundments unconstitutional or illegal. Right. So Zach has done some great writing that I'll just underscore here to add on to what he already said so well, about just the President has no inherent constitutional authority to impound, and that's kind of regardless of whether there's a statute on the books or not. So that's kind of one additional point I'd make. The second point I'd make is that it hasn't even really been squarely presented, I think, for the administration to defend in this context. Most of the litigation is still at the kind of preliminary or injunction stage where a lot of what you're doing is arguing about these justiciability questions and then likelihood of success on the merits where you don't need to cover the waterfront of all of the possible legal issues. So I think that's another thing that kind of answers the question of why haven't we seen this so thoroughly right now? So I think I would say, you know, where might we see a direct kind of challenge to that? I don't think it would be likely to come up in the context of these individual private litigants. So as long as I think you have private grant recipients or states or something like that suing, I think what we're mostly going to be arguing about is just the underlying grant statutes and the underlying appropriations provisions, where I think a direct Impoundment Control act challenge would come up is if the Comptroller General sues. So Matt talked a few minutes ago about gao. The Government Accountability Office is congressional agency that one of its many tasks is it takes care of our appropriations laws, sort of. It has oversight authority over our appropriations laws, and it publishes appropriations law decisions evaluating executive branch compliance with the various appropriations laws. It publishes a big treatise that kind of sets forth, you know, what the basic rules are in this kind of soft power way that we've been talking about. Right. Like Matt's example of. Of trusting the employees to function. But so if the Comptroller General, who, under the terms of the Impoundment Control act, is statutorily authorized to bring a lawsuit if the executive branch refuses to release funding that the Comptroller General has said is an unauthorized impoundment, then I think we'd see a direct challenge, a direct defense from the administration saying that the statute is illegal and, you know, all the different ways that they think the statute is illegal. So that's, I think, the context. We'd be more likely to see it in the ordinary run of the mills case. It's horrible sort of to think of these as the ordinary run of the mill cases because they're so sort of devastating across the government. But I do think at this stage we can think of them as the ordinary kind of case taking up challenges to the administration's spending actions.
- [38:34]
Molly Reynolds
And I'll take a crack at this, too, and just say I think this is a difference. There might be a play here. And I can, I have no idea of the motive of anyone in the administration, but there might be a play from kind of an institutional standpoint, a difference between like political executive branch lawyering on the one hand and then like litigation and courts on the other. And what I mean when I say that is there was this great Wilkinson opinion, I think, last week about the one of the immigration deportation cases where he said courts are focused on means and presidents are focused on ends, and they might be willing to just pursue their ends. You know, and if you're a president and you're focused on ends and you have to pick a lawyer and there's a hundred of them, it doesn't necessarily make sense for you to pick the lawyer who's best at figuring out what the law is and then sticking by it, because that lawyer is going to say no to you a lot. Right. But if there's 100 lawyers and they're all good faith and they truly believe what they believe, and one of them says, I believe a constitutional theory that no one else believes that says you can do whatever you want, President, and you can make deals with people and you can threaten them, that's a great hire from a, from like an executive power perspective, because now you can put that person in power and they will at least grant a kind of opinion of legality to what you're doing, even if that opinion is so far outside the Overton window that no court is going to buy it and, you know, other lawyers aren't going to buy it. And so then you might get executive branch pronouncements of like a legal view that's really out there. And I'm not saying this is a partisan phenomenon in any way. And I think we could look at Democrat presidents as well and spot, you know, this kind of thing that it Pays to have pro executive power views if you want to advance in the executive branch. But then even if that happens and dictates what might happen in the executive branch, then when you actually go to litigate and you have to go to a court, that's the point where at doj, the litigators are going to say, look, if you actually put this in the brief, the likelihood you get enjoined, you know, when the injunctions up tell by the Supreme Court goes way up, you know. And then when that happens, also your pet theory that's really stiff leaf is destroyed by the Supreme Court. So now you can't even kind of say yourself that you're being lawful anymore because you persuaded yourself. So I don't know if that's at play, but I think if we looked across not just this administration, from administration to administration, there is this dynamic of the executive branch, you know, and then of course it has to check itself. And Zach knows much more because there is great lawyering in the executive branch. I don't mean to suggest otherwise, but there is this temptation at play is what I mean to suggest.
- [41:05]
Matt Lawrence
So, Eloise, you sort of described the set of cases that we have so far as being like quite broad across the federal government. And that's true. Where we've been talking about lots and lots of different kinds of plaintiffs here. And sort of in this set of cases, we're sort of. And this goes back to what we were talking about before, sort of starting to see courts in some situations say that these cases should in fact continue to proceed in the like regular Article 3 courts, starting at the district court and then going up from there. But then we have on the other side some cases, including one involving teacher training grants in the state of California, where the Supreme Court weighed in on its emergency docket, where they've said, actually no, this belongs in the court of federal claims. Do we know anything yet about kind of patterns that are emerging with courts kind of looking at these cases and saying some that look like this are going to stay in the district courts, some that look like this belong in the court of federal claims? Do we know anything about kind of, of what fact patterns are leading courts to say one thing or the other? Or is it more at this point still just different courts doing different things?
- [42:19]
Eloise Pasakoff
I think it's a little too early to say. And I also want to walk back the strength of what you just said. The Supreme Court said that California case, because the Supreme Court said very, very, very little in very few sentences, in a very cryptic and tentative kind of way. And so I would be reluctant to read too many tea leaves about kind of like hard and fast rules being pronounced. I mean, of course that is one of the big problems that happens with the court doing big things on the shadow docket is the sort of the temptation for it to do bigger things with not enough briefing. So I guess what I would say is that the classic court of Federal Claims Tucker act kind of case is a suit for money damages based on some sort of contract breach. And I just don't think that's really what is going on here. And so that's kind of my read on the, the big kind of arguments going on. Right. Like we've talked about the it violates the statute, not the contract. We're not talking about contract violation. We're talking about the claim that the thing that the executive branch is doing violates the statute. We're talking about the arbitrary and capriciousness kinds of claims about the termination procedures and the kind of, you know, the overall context of things that are happening. We're talking about the constitutionality claims, right. The targeting the First Amendment kinds of claims. We're talking about forward looking relief. They're not necessarily asking for backwards looking damages. We're talking about reinstating the grants because they were terminated illegally. So I think those are some of the distinctions I would draw. But I think it's too early to say exactly what's going on in the courts. I'll just say two other quick things. One is that I would like to just note that the Nixon era lawsuits challenging all of these kinds of actions all proceeded in federal district court. So I think that's an important historical background fact. And the other thing I would like to say is I went back when that Supreme Court shadow decision came down and I took a look at my federal grant practice manual and I read the litigation dispute chapters and I would just like to read you three highlights from that federal grant practice treatise. It says most legal challenges to agency assistance decisions are based on the apa. Second thing, it says relief under the APA is perhaps the most frequently sought form of relief in grant litigation. Third thing, it says the APA is the most frequently used legal authority for grant related litigation. So I just want to observe that in this tome which for viewers who are watching this on the YouTube will note. This is, I don't know, a multi thousand page tome that I am holding up of a, of a major federal grant practice treatise. These are the three points that these experts have to say about when and where cases are taken.
- [45:13]
Matt Lawrence
Matt, Zach, I'm not going to ask you to quote from many thousand page federal sources at your disposal, but any thoughts from either of you on this question of kind of where these cases are going?
- [45:27]
Ryan Reynolds
I defer to Matt and El Wise on the details of the Tucker act. But, but I would just add a lot of this activity is oriented towards cutting costs. And it's worth noting that to the extent people have a retrospective remedy to get money under a contract or something, the cuts are a bit ephemeral. So just worth noting, the executive doesn't have complete control and there's a permanent appropriation in the judgment fund for paying, things like that. So if you've got people who actually have a legal entitlement to money, they may be able to get it and that will wipe away some of these purported cuts.
- [46:08]
Molly Reynolds
And I'll just add, yeah, that was fantastic, Eloise. So I can't add to that, but I will agree with Eloise that if you read the order closely, and I do have my order so I can flash paper, you know, in that particular case, the Ed v. California case, the district, the lower court's order not only enjoined the termination, said you shouldn't have terminated this. It also in the Supreme Court added a sentence. I think it's the second sentence in the opinion that the order had required the government to pay out past due grant obligations. To pay past due obligations. And I have to stand up a tiny bit for the Tucker Act. When I was at the Department of Justice at least twice, I think I got cases, you know, I was involved in cases that we wound up saying should be Tucker Act. You know, if you're talking about past damages and getting them paid from the past as opposed to stopping kind of a termination that's happened or enjoying future activity, that's the big, big difference. If you're talking past damages, it really is leaning that way. So I take it as notable that that court order was so broad that it also reached payment of past due damages. And I take it as notable that the Supreme Court mentioned that in the second sentence of that, you know, that per term opinion. And then I would just say to the extent, you know, I see any trends or anything, and I can only, you know, it's so early, it's sort of there's like a stack in any of these cases from like the broad possibility of an executive order, you know, or maybe an agency wide policy to a policy decision to an individual grant decision, and the government is trying to push the dispute towards the bottom of the stack to say it's all about the individual grant and maybe damages due or something. And then the plaintiffs of the world are better off pushing things towards a policy judgment or something higher like that. And there was the earlier Supreme Court case where Barrett joined the majority in not in joining the usaid, which was more of a policy challenge. So I see that developing. That makes me wonder if plaintiffs will, you know, try to emphasize that, you know, if there's 100 grand terminations in a day or in a week, they must have all actually come from an underlying policy, maybe even seek jurisdictional discovery into the existence of underlying policies in response to government motions for Tucker act dismissal and say, you can't adjudicate jurisdiction until we can actually understand how this policy was decided, that kind of thing. So I don't know, but that's some kind of speculative thoughts about this developing area of doctrine.
- [48:27]
Matt Lawrence
Yeah. And so, Matt, you just mentioned the question of foreign assistance funding, which we've seen disrupted in sort of a couple of different ways. So looking ahead, we know that the House is reportedly going to consider a rescissions package or two rescissions packages under the Impoundment Control Act. One of these reportedly will target the rescission of some foreign assistance funds. If Congress actually successfully rescinds some funding, how does that relate, if at all, to any of these ongoing cases? So if the funding is itself rescinded by Congress, does that mean that anyone who is suing about that set of funding, does that change the circumstances of their case? How might it bear on kind of this litigation more broadly?
- [49:17]
Ryan Reynolds
I hesitate a bit because I haven't followed the details of all the cases or the relevant laws. But I think it certainly could moot certain challenges. If the argument is there's this appropriation that you need to be spending on some purpose and you're not doing that, if the appropriation goes away, then that moots the issue. It would not moot the issue if, relating to what we were talking about before, if the government had incurred some obligation to pay someone, then that's still there. That wouldn't go away just because the appropriation is rescinded. So it depends a bit on that. I mean, another dimension of things like the foreign aid is you always have to look at the particular statutes. But I mean, there is often a lot of discretion in the executive branch at administering these things. So it could be that the government is not impounding the money if it is just changing who the recipients are going to be, but still putting the money to the purposes that the Congress intended. But under the Impoundment Control act, the only way to kind of cancel the money altogether is to do what you're describing and propose a rescission to Congress that actually zeros out the money and then you don't have that application anymore.
- [50:35]
Matt Lawrence
Well, we're going to have to leave it there for today. Thank you, Matt. Thank you, Eloise. Thank you Zach for being with us.
- [50:41]
Eloise Pasakoff
Great to be here. Thanks, Molly.
- [50:43]
Ryan Reynolds
Thank you so much.
- [50:47]
Matt Lawrence
The Lawfare Podcast is produced in cooperation with the Brookings Institution. You can get ad free versions of this and other Lawfare podcasts by becoming a Lawfare Material supporter at our website, lawfairmedia.org support. You also get access to special events and other content available only to our supporters. Please rate and review us wherever you get your podcasts. Look out for other podcasts including Rational Security, Allies, the Aftermath and Escalation. Our latest Lawfare Presents podcast series about the war in Ukraine. Check out our written work@lawfairmedia.org the podcast is edited by Jen Patya and our audio engineer. This episode was Kara Schillen of Goat Rodeo. Our theme song is from Alibi Music. As always, thank you for listening.
- [51:37]
Madison H.
Every idea starts with a problem. Warby Parker's was simple. Glasses are too expensive, so they set out to change that. By designing glasses in house and selling directly to customers, they're able to offer prescription eyewear that's expertly crafted and unexpectedly affordable. Warby Parker glasses are made from premium materials like impact resistant polycarbonate and custom acetate, and they start at just $95, including prescription lenses. Get glasses made from the good stuff. Stop by a Warby Parker store near.