Days into this Trump administration, the Office of Management and Budget released a memo illegally ordering a “temporary pause” on nearly all federal assistance, abruptly freezing billions of dollars that Congress had already appropriated for education, health care, public safety, and other essential services. People panicked. Chaos ensued. Nonprofits and government programs were put in limbo. The administration later attempted to clarify the memo, but it only created more uncertainty and confusion.
The White House defended the freeze. “There is no uncertainty in this building,” Press Secretary Karoline Leavitt said. But she would have to “check back” on whether Medicaid would be impacted.
Immediately, states sued. In yet another ruling against this administration, a lower court temporarily blocked the funding freeze while the case plays out.
To be clear, presidents do not have the power to freeze funding by fiat. Only Congress has the power to determine how and when appropriations are spent — it alone has the power of the purse. The Impoundment Control Act of 1974 made this even more explicit. After President Nixon purported to withhold congressional funds, the law was passed to require congressional approval for any deferral or rescission of funds as part of a larger movement pushing back against growing presidential power.
Now the case is before the First Circuit Court of Appeals. It’s part of the myriad of cases making their way through the courts challenging egregious power grabs by this administration. It’s one of the cases which we have been warning will determine the scope of presidential power for decades to come.
The Brennan Center is representing 157 members of Congress led by Rep. Jamie Raskin (MD), the top Democrat on the House Judiciary Committee, House Minority Leader Hakeem Jeffries (NY), and Minority Whip Katherine Clark (MA), in a friend-of-the-court brief in this case. It explains how withholding congressionally appropriated funds directly violates the Constitution. The funding freeze “seeks to implement the President’s mistaken view that he alone embodies the popular will,” it affirms. “If the President or agencies could decline to make expenditures based on policy disagreements, then the President alone would remake the law.”
The brief also emphasizes the damage the funding freeze would inflict. We put together a list with the full scope of programs that would be affected. The reality is striking. On the list are critical programs including the Federal Emergency Management Agency, K–12 public schools, the Justice Department’s Office on Violence Against Women, the CDC, and others. (In a new analysis, my colleagues Grady Yuthok Short and Kendall Verhovek also detail how the funding freeze would jeopardize the health and care of children across the country.)
The ruling could have grave implications for future federal funding. Already, the administration has purported to unilaterally roll back or pause funding several other times, sometimes in secret. After growing pressure from both Democrats and Republicans, last week, the administration announced it would release $5 billion for public schools that it had withheld with little explanation. Other efforts to claw back funding have been less explicit. Earlier this year, OMB abruptly stopped publishing data on its website showing how it apportions funds to federal agencies, in direct violation of public disclosure law.
This is all part of the administration’s extreme interpretation of the unitary executive theory, which holds that the executive branch has monarchical power over its employees and the funds that travel through it. It sees the few measures of checks and balances in place as mere suggestions. OMB director Russell Vought has even baselessly claimed that the Impoundment Control Act is unconstitutional. This theory extends throughout Trump’s agenda through his policies removing protected agency heads, threatening the chair of the Federal Reserve, and dismantling entire federal agencies. And it is a blatant misconception of presidential power.
In a robust collection of friend-of-the-court filed briefs in the case, law professor Samuel Bagenstos, OMB’s former general counsel, provided a technical breakdown of how the administration’s freeze violates statutes Congress enacted precisely to avoid sweeping funding disruptions. A brief from legal scholar Ilya Somin of the Cato Institute argues that the freeze violates historical practice and Supreme Court precedent. And a brief by former executive branch attorneys from conservative administrations explains how the freeze upends traditional executive branch practice. It’s a broad, ideologically diverse coalition, all aligned on this issue.
We are part of a larger, urgent effort to combat the concentration of power in our democracy. It’s an effort that dates back to the founding. James Madison wrote, “The accumulation of all powers, Legislative, Executive, and Judiciary, in the same hand . . . may justly be pronounced the very definition of tyranny.”
Upholding the separation of powers as an essential check against tyranny requires the diligent, persistent work of taking on each and every power grab by this administration. And we are determined to stop the bleeding of power into the executive at every step.
