//  10/29/19  //  Commentary

In an op-ed over the weekend in the Wall Street Journal, David B. Rivkin Jr. and Elizabeth Price Foley challenge current efforts to impeach President Trump on multiple procedural and substantive grounds.  On at least one key point they are wrong, for reasons I addressed in a recent article:  The President does not have constitutional authority to withhold foreign aid that Congress has mandated by statute.

According to Rivkin and Foley, “the Constitution gives the president plenary authority to conduct foreign affairs and diplomacy, including broad discretion over the timing and release of appropriated funds.” Their implication is that the President’s apparent withholding of military aid to Ukraine until Ukrainian authorities dug up dirt on his political opponent, Joe Biden, was entirely within his constitutional power.

To my mind, even valid presidential powers might be corruptly abused in ways that justify impeachment.  But even holding that point aside, plenary control over foreign aid is not, in fact, an exclusive presidential authority under the Constitution.

Unlike recognizing foreign governments, communicating diplomatic positions, and some other foreign affairs actions over which modern presidents have claimed exclusive control, aid depends entirely on congressional appropriations.  Any presidential authority to provide it is thus “resource-dependent,” as I put it in the article.  Only Congress can appropriate funds for the aid, and accordingly Congress has complete authority to dictate the terms and conditions on which the funding is available.

In the Ukraine example, therefore, Trump’s duty was to carry out Congress’s objectives, not to pursue his own preferred foreign policy. In fact, strictly speaking, his duty was to ensure that the Secretaries of Defense and State carried out those objectives, because the statutes in question (hereand here) vested authority in them, not the President personally.

It is true that Presidents have occasionally asserted a constitutional foreign-affairs prerogative not to distribute foreign aid, but this position is unsound and I am aware of no significant pattern of practice supporting it.

 Rivkin and Foley allude to the historic practice of “impoundment,” under which presidents claimed authority to decline military or other spending they considered unnecessary.  As they acknowledge, however, Congress repudiated this presidential authority in the Impoundment Control Act of 1974.  For their part, Courts have rejected any preclusive executive power to decline spending.  As then-Judge Kavanaugh observed in a D.C. Circuit decision, “a President sometimes has policy reasons . . . for wanting to spend less than the full amount appropriated by Congress for a particular project or program.  But in those circumstances, even the President does not have unilateral authority to refuse to spend the funds.”

Whether withholding or delaying funds for Ukraine was lawful is accordingly a statutory question, not a matter of constitutional prerogative.  Although the Impoundment Control Act generally mandates that the executive branch spend appropriated funds, applicable statutes do allow “deferrals” and “rescissions” of spending in certain circumstances.  These actions, however, require certain procedural steps, including reporting to Congress, that the administration did not follow here.  The Office and Management and Budget also holds authority to “apportion” funding within a given fiscal year, but again it is not clear that delaying spending here was consistent with this authority.  (For a helpful discussion of these questions, see posts here and here on Lawfare.)

More generally, even if other presidents have occasionally played fast and loose with these procedural requirements, such precedents do not necessarily excuse the President’s conduct here.  Debate has rightly focused instead on whether the President’s apparent favoring of a personal partisan interest over more general public interests was an impeachable abuse of power.  Not every technical legal violation by an administration should be impeachable, but by the same token even valid powers may be abused in ways that betray the public trust.

 Whether impeachment is prudent or appropriate in this case is ultimately a matter for the House of Representaives’s political judgment.  But the President and his defenders should not be allowed to make other congressional powers collateral damage in the effort to keep Trump in office.  Modern presidents have acquired extraordinarily broad powers.  The authority to spend public money as they see fit is not yet one of them.  On the contrary, it remains one of Congress’s most important powers for checking and constraining executive unilateralism. The President’s behavior in this very episode illustrates why that shouldn’t change.

Versus Trump: Going to Church In Times of COVID

12/7/20  //  Commentary

On this week's Versus Trump, Charlie and Jason discuss the recent Supreme Court decisions requiring states to allow in-person religious services even while other gatherings can be banned. The pair gently disagree about how hard or easy these cases are. Listen now!

Charlie Gerstein

Civil Rights Corps

Versus Trump: Legal Update + The GSA Travesty

11/17/20  //  Commentary

On this week's Versus Trump, Charlie and Jason discuss the status of Trump's legal challenges to the election (going nowhere) and the Trump Administration's dangerous and illegal refusal to designate Biden as the President-elect and therefore give his team resources for a smooth transition. Listen now!

Charlie Gerstein

Civil Rights Corps

Trump's Lawyers Should Be Sanctioned

11/11/20  //  Commentary

Lawyers who bring cases without evidence solely to harass or delay should be sanctioned. It's what Justice Scalia would have wanted.