Can Wasteful Spending be Mandatory?

In the current state of things, a normal president (i.e., almost anyone but Trump) and a normal Congress (with either party in the majority) could and would say there is just nothing we can do because the federal government is just so large, complex, specialized and wired into so many interest groups that we do not have the time or political capital to reign it in and pare it down.

It is near-miraculous that this actual reform and reduction are even being attempted. But could a lawfare campaign kill it?

In the skirmishes at the federal district court level, judge-shopping and legal ambiguities have given some small victories for the pro-waste/fraud/abuse/grift side. It is important that the proper issues get shaped for appellate review to give SCOTUS a shot at clarifying a vital constitutional issue. If it is instead only about the Trump Administration failing to touch all the bases, resulting in violating some civil service technicalities, the left could win a strategic victory by achieving a sizeable delay.

If, instead, the issue before SCOTUS is about finally delineating the constitutional powers of the executive branch with respect to the uses and non-use of appropriated funds, it could permit a rollback of the federal leviathan and a return to democratic rule. Rather than a loss of turf for Congress, this could result in more congressional control over the bureaucracies to which it has largely surrendered.

If it were expressly tested and brought before SCOTUS, I think there is a good chance the 1974 Impoundment Control Act (the President may not refuse to spend money appropriated by Congress) would be found unconstitutional. But there is still a lot of gray area.

It is elementary school Civics 101 that POTUS may not spend money that Congress did not authorize nor spend funds on some entirely separate purpose contrary to the express will of Congress. It is also clear that Congress cannot micromanage how funds are used, or tell generals and admirals to prosecute a war in a manner contrary to the orders of the commander-in-chief. But what if POTUS does not want to spend the money? Does it matter specifically how the legislation directs the spending?

Congress automatically and generically feeds a beast no longer fully controlled by Congress or the president, so whither that needed constitutional clarity?

Did Congress require USAID to issue LGBTQ coloring books in Peru? If not, does the money still have to be spent on something else? If an entire program or agency is rife with fraud and waste, can it be suspended or ended without congressional consent?

If POTUS were given $20 billion by Congress to build a particular weapons system and DOD brings it in for $16 billion (yes, wildly hypothetical, but humor me), does he still have to give the builders the other $4 billion? Spend it elsewhere on defense, or can he give it back to the Treasury? There are precedents for this situation in the Truman Administration.

Can Congress mandate waste? Yes. Legislation can specify methods and acquisitions that are pure pork or just stupid. Can Congress mandate fraud? Not exactly, but exemptions could be created and incentives overwhelming.

SCOTUS will probably soon have to define the circumstances, reasons and procedures within which the President can substantially block abuses. And Trump's people really need to avoid stepping on mines and instead build a defensible record of grounds and reasons for massive cuts.

In an ideal world, SCOTUS would give the president wide latitude but not total discretion (he can't abolish an agency or entire program if Congress specifically established it without a heckofa good reason), especially if there is considerable discretion written into the appropriation. This would also force Congress to be far more specific instead of punting to the bureaucracies and make all of government more responsive and transparent. It could re-empower committees, bring about better oversight, and create accountability that currently does not exist (i.e., they know controversial groups and actions are being funded but don't have to vote on the specifics).

I really hope the administration has a legal strategy in place for the protracted battles to come. A lot of battlespace needs prepping, and, unfortunately, the forces of evil are really good at this kind of thing. They figure (probably correctly) that significant litigation delays and just a few key electoral victories in 2026 might be enough to kill momentum and make the normals despair.