Wielding Spending Power He Does Not Have The courts must stop it

“The courts must stop Trump.” Opinion The Sacramento Bee, Erwin Chemerinski

One of President Donald Trump’s greatest threats to democracy is his effort to take control over the spending of federal money. Under Article I of the Constitution, the spending power is vested in Congress. The president has no power to put additional conditions on federal spending or to refuse to spend money appropriated by federal statute.

In his first month in office, President Trump repeatedly has tried to force compliance with his policies by putting additional conditions on federal grants. On Tuesday, March 4, President Trump posted on social media, “All federal funding will STOP for any College, School or University that allows illegal protests.”

Earlier, he issued an executive order to deny federal law enforcement money to state and local governments that did not cooperate with Immigrations and Customs Enforcement. On February 5, the Department of Justice announced, “Sanctuary jurisdictions should not receive access to federal grants administered by the Department of Justice.”

Through executive orders and other pronouncements, the Trump administration has said that colleges and universities that have diversity, equity, and inclusion programs risk losing all federal funding.

But these efforts to try and exercise control over recipients of federal funds are unconstitutional and illegal. The Supreme Court has been clear that Congress can put strings on federal grants so long as the conditions are clearly stated, they relate to the purpose of the program, they are not unduly coercive, and they do not violate constitutional rights.

For example, in 2012, the Court declared unconstitutional a key provision of the Patient Protection and Affordable Care Act which required that every state receiving federal Medicaid funds provide coverage to those within 133 percent of the federal poverty level or lose all federal Medicaid funds. The Court held that this was like a “gun to the head of the states” and was so coercive as to infringe state sovereignty.

The first Trump administration also said that jurisdictions that did not cooperate with federal law immigration efforts would lose federal law enforcement grants. Three federal courts of appeals, including the United States Court of Appeals for the Ninth Circuit in cases brought by Los Angeles and San Francisco, declared this unconstitutional.

The recent Trump executive orders and threats for fund cutoffs are similarly impermissible. Most importantly, it is for Congress, not the president, to set the conditions on federal spending. Even when Congress does so, the conditions must be clearly stated. A mandate to eliminate DEI programs gives little guidance to universities as to what schools must do. A threat to cutoff all funds to a university is exactly the type of coercion that the Supreme Court has deemed unconstitutional. And the government cannot condition federal money on a university having to violate the First Amendment rights of its students.

In his first weeks in office, President Trump has repeatedly claimed the authority to cut off funds appropriated in federal statutes. He froze federal spending, perhaps as much as $3 trillion. He cut off billions of dollars of funding for the United States Agency for International Development. He has frozen United States military aid to Ukraine, which also is appropriated by federal law. He has dramatically reduced grants from the National Institutes of Health for medical research.

All of this is unconstitutional and illegal. After Congress passes a spending bill, the president may sign or veto it. Once it goes into law, because the president signed it or Congress overrode the veto, the president does not get another chance to stop it by refusing to spend the money. This usurps Congress’s power of the purse. When Richard Nixon tried to do this a half century ago, federal courts, including the Supreme Court, declared it unconstitutional. Congress then adopted the Congressional Budget and Impoundment Control Act of 1974, which prohibits the president from refusing to spend money appropriated by federal statute.

It is for this reason that many federal courts have found that the Trump efforts to stop federal spending are impermissible. On Wednesday, March 5, in Department of State v. AIDS Vaccine Advocacy Coalition, the Supreme Court indicated its agreement with these lower courts. A federal district court in Washington, D.C. found that the Trump administration had illegally frozen money to be spent by USAID and ordered that the money be released by midnight on February 26. On that day, Chief Justice John Roberts paused the lower court’s order to allow time for the Supreme Court to consider the matter. On March 5, the Court, 5-4, lifted its stay and said that the district court could order the money to be spent. This was a clear signal that the president has no authority to refuse to spend money appropriated by federal law and that courts may order the funds be spent.