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Will SCOTUS Derail DOGE?
There are enormous constitutional issues coming to a head very soon. By granting almost complete discretion to agencies to use impossibly large amounts of money, Congress has punted away much of the authority that was supposed to come with the power of the purse. The elected Executive barely gets its appointees in place in one term, and those appointees have neither the expertise nor internal support to get hold of the existing funding channels.
The bitter irony is that the coming litigation will be based on the pretense that (a) congressional intent formed the bogus spending within these appropriations and (b) the executive controls the administrative state. In reality, a virtually autonomous administrative state subject to neither Congress nor POTUS but only to itself and its cronies will assert an entitlement as if an appropriate constitutional order were actually in place. And SCOTUS will likely rule in favor of the bad guys based on that pretense.
I offer a hypothetical case involving a clearly bogus and silly grantee plaintiff and offer a depressing prediction as to the outcome before the high court.
Abstract: Plaintiff Faux Compassion International (“FCI”) is a 501(c)(3) non-profit with its main office in Bethesda, Maryland. Pursuant to a grant of $20,000,000 (Grant number XYZ-1234567) from USAID, FCI provides pride-colored condoms, multi-language vegan recipe books, and funds for touring intersectional, multi-gender-affirming street puppet theater performances in impoverished nations. On February 14, 2025, this grant and disbursement of funds were terminated by executive order.
Although there is no contract with USAID to provide these specific services, FCI claims a reliance interest because only $120,000 of the grant actually goes to the stated deliverables—the rest of the funds other than FCI overhead and salaries ($5.6 million) is obligated under contract to other consultants, vendors, service providers, and partners including but not limited to Pretend Action, Inc., Make Noise for Earth, and Totally Not Just Another DNC Auxiliary.
The issues presented are:
- Does FCI have standing on constitutional grounds to challenge presidential authority to withhold or impound appropriated funds, or must such an action be brought or joined by Congress?
- Was termination of this grant and the refusal to spend this and other portions of this particular appropriation within the scope of presidential authority?
- Does the Impoundment Control Act 1974 apply or is it an unconstitutional infringement on executive discretion and authority?
- If the Executive must disperse this appropriation, can the beneficiary be changed after an initial grant was issued?
Ruling:
- FCI has standing 6-3.
- The president does not have blanket authority but must have a legally cognizable reason (emergency, fraud, wartime measures, conflict with other law, etc.) 5-4. Two concurring but dissenting on scope or required reasons.
- The 1974 law is overbroad. The only aspect that is valid is already contained in Constitutional checks and balances. Congress has no authority to go beyond that, 6-3.
- Yes, but only for cause, 6-3, two concurring but dissenting on scope of requisite cause.
Bottom line: Unless and until Congress gets in the game to make actual cuts or otherwise authorize POTUS to do so, I fear that lawfare could so greatly narrow and delay DOGE-inspired discretionary authority as to gut the entire enterprise.
I would be delighted if a real constitutional lawyer were to explain why I am completely wrong about this and that there is far more reason for optimism going forward.
Published in General
Maybe we are getting closer:
Time for the Jacksonian Response?
The Trump Administration should make sure sure all actual disbursing is done through Treasury-no delegation to disburse from the general fund for the State Department.
If Trump takes the Jacksonian approach the enforcement option for the ruling by SCOTUS is impeachment.
It’s never been specifically required, has it, that all funds appropriated must be spent, down to the last penny?
And yes, if Congress thinks that’s not being done, and they want it to be done seriously enough, they can impeach.
You might want to check on the impoundment battles of the Nixon administration. I suppose I could check on that, too.
So, if Congress allows X money to be spent on something, but it turns out that it can be done for 90% of X, must the other 10% still go to the vendor, or be spent on extra bubble-gum or something?
Isn’t repeal of the Impoundment Act on the current legislative agenda?
I don’t know. Check it out.
I don’t know. I have often thought it would be a good idea.
Separation of powers, etc, would seem to require that spending by the Executive Branch requires appropriation by Congress, but does not require that ALL of what has been appropriated, be spent. At least not on that particular item. It could be argued that the Executive might not have authority to redirect appropriations to other things, but no requirement that all of what was appropriated, BE spent.
Who cares about “would seem” when there was an actual contest over the issue that set the laws and precedents that we are now living with?
We live with plenty of unconstitutional law. That’s why Justices who cannot figure that out should be impeached.
Interestingly, there’s nothing in the Constitution that says justices can be impeached for not being able to figure that out. The Constitution only says that they can be impeached for high crimes and misdemeanors.
Who decides what those are? Anyway, a judge unlawfully interfering with a co-equal branch of government, could certainly be considered guilty of at least a “misdemeanor.”
I presume there is some precedent to go by and that would be the default answer. Doesn’t mean we don’t adjust precedents over time, of course. We could also change the meaning of “is” if we really wanted to.
Yes we do live with an overabundance of unConstitutional law. This came about due to a reliance on precedence.
Due to how holy precedent cases have become, at times I am amazed that the Dred Scott decision is still not affecting life in the USA.
@bobthompson
Anyway Old Bathos, your analysis was extremely wise, pertinent and given the complexity of this issue, concisely stated.
I only hope some attorney on the Trump side of things is thinking along the same lines. An important matter has fallen into the cracks. Since that is where the situation remains, how does the public have any ability to first of all, displace the perpetual hordes of government employees even as they see to it that transgender theater performances in Peru are on going.
And secondly, taken into consideration what Bob T wrote out earlier:
Time for the Jacksonian Response?
The Trump Administration should make sure sure all actual disbursing is done through Treasury – no delegation to disburse from the general fund for the State Department.
If Trump takes the Jacksonian approach the enforcement option for the ruling by SCOTUS is impeachment.
**********************************************
I am left wondering, did Bob mean Trump should be impeached or the SCOTUS members who won’t allow sanity to prevail?
Isn’t impeachment the only option for those holding either of these positions?
I wish it were the only possibility for anyone holding those positions.
But clearly one portion of the Deep State has thought up one other solution, a fact cemented in our American consciousness since July 13th 2024.
Roberts is a creature of DC – he will put some stops to it.
For what ruling?
If you are referring to the current Global Health/AIDS Vaccine cases, then it appears that you misunderstand the legal issues raised by the case, perhaps because you have accepted the mainstream media’s uninformed version of the facts.
Please read No, The Supreme Court Did Not Allow A District Judge To Order The Payment Of $2 Billion In Foreign Aid.
Plaintiffs didn’t challenge the President’s authority to make foreign policy. They only claimed that they have contracts that require the Government to reimburse them for expenses they have already incurred. Under the Constitution, the Government is bound by its contracts; that is not controversial.
The judge in the case issued a wildly over-broad Temporary Restraining Order in that case, requiring ALL paused payments to be made immediately, regardless of whether or not the parties affected were parties to the complaint, and without any consideration of the facts pertaining to those potential (but non-existent) cases.
Part of the basis for a TRO is that the Plaintiff is “likely to prevail” in the matter.
For whatever reason, the Trump administration did not appeal this clearly improper TRO. Instead, they accepted it, and removed the blanket pause in order to comply with it.
Instead, they initiated a review of all the pending payments to verify contract compliance on a case-by-case basis (a non-controversial responsibility of the Government) and release the payments as quickly as possible (to give their side of it.)
What happened next?
The judge ordered on 2/25 that ” all pending disbursements of funds for work done on or before February 13 — the date of the TRO — had to be paid by 11:59 pm on February 26.” (Source: linked article).
The Defendant DID file an appeal to this order for payment by 2/26. Again, that appeal was based on uncontroversial grounds.
Next, on 2/26 Chief Justice Roberts entered Defendant’s requested Stay. The Government didn’t have an 11:59 deadline to pay. No constitutional controversy yet.
I will stop the story there and ask you to read the rest of it yourself.
The main points I want to make is that Trump was not as of yesterday morning under an order to make all the payments he originally paused. And more importantly, the case has not brought any constitutional conflict over Presidential power to a head. Only procedural issues concerning non-controversial obligations.
Any ruling. Is there another enforcement action that can be taken against the POTUS?
I did see that the ruling applies only to funds obligated so that narrows what DOGE is looking into quite a lot.
Not quite.
The district court judge issued the TRO on the grounds that the plaintiffs would prevail under the Administrative Procedures Act. Hello, only the US Court of Claims has jurisdiction in a suit against the US Govt about monetary claims, not the district court. There is no jurisdiction under the APA for these claims. There was no waiver of sovereign immunity here. So, by definition, this judge does not have jurisdiction. And a “temporary” stay which means permanent transfer of the funds is the act of granting monetary relief for a claim, in effect a summary judgment in a claims case over which he has no jurisdiction.
If the denial of payment by POTUS is unlawful, then the Court of Claims is the right forum. Jurisdiction is not a mere procedural distinction. The question as to whether cancelling these payments is with the scope of executive authority begins in that court.
Mischaracterizing a monetary claim against the US as a rulemaking issue was beyond the bounds of legal creativity and lastly, the notion that the APA trumps Article II with respect to any Executive action is a stretch.
Do we have evidence that the administration is following that path? I hope so. But it doesn’t seem like SCOTUS understood that.
On the one hand, trump’s team has often ignored possibly applicable administrative procedures. On the other hand, nobody has ever tried to go after spending (even obviously bogus spending) this thoroughly and this granularly so they are breaking new ground for which there is not much precedent.
If Congress reduces an agency budget, it is usually left to the agency to distribute the pain (i.e., cut that which is useful and beneficial to the public to inflict pain on recalcitrant taxpayers while protecting what the insiders want to keep). Bypassing the internal decision-making and deciding directly about cutting specifics, Trump’s actions are entirely novel.
The establishment mindset is that if the agency itself makes the decisions and the cuts it must be OK but if POTUS (who has authority over that agency and the entire federal government) does it, it is irregular and somehow unlawful.
I maintain that the Executive asks Congress for funding, and it Congress agrees there is an argument that the funding can’t be spent for anything but what it was approved for; but I don’t see any reason to claim that the full amount approved MUST BE SPENT. Even if the specified goal turns out to be achievable by spending LESS. Or if the Executive decides to take another path, or something. And if they take a different path, that may require a separate funding approval. But that does not then mean that BOTH fundings MUST BE SPENT.
Thanks for a refreshingly candid response into your thinking.
Here is a good NR article about the right way and the wrong way for the President to to do this. Members of Congress are already well aware of it. They gave Elon Musk a lesson about it, and he seemed to be glad to learn of the mechanisms that can be used. According to this article, anyway.
Cut Spending by Using the Law, Not by Breaking It
This howling from the Democrats these past two weeks about the Republicans’ undoing their programs and bills and executive orders is very hypocritical of them. What I’ve seen the Democrats do to the two historic education reform movements that were initiated by Republicans is wild. No Child Left Behind and the education reform laws enacted in Massachusetts in the 1990s have been completely thrown out or rewritten. Why? Because they called for some necessary accountability. The teachers unions want teachers to be completely autonomous from all supervision.
In both cases, the results have been disastrous.
If you don’t measure achievement, you won’t get it.