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Humility, for within these walls resides the weight of a nation's will. | |
| May they be a symbol of hope through triumph and trial. | ||
| Grant them strength amid uncertainty and creativity to shape a more perfect union. | ||
| O merciful, you fashion us differently to inspire a shared purpose. | ||
| So let unity be our highest pursuit and unite us as we humbly submit to your eternal guidance for the good of our country and good for humanity. | ||
| We ask this with your name. | ||
| Amen. | ||
| Pursuant to clause 13 of Rule 1, the journal of the last day's proceedings is approved. | ||
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unidentified
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The chair will lead the house in the Pledge of Allegiance. | |
| I pledge allegiance to the flag of the United States of America and to the republic for which it stands, one nation under God, indivisible, with liberty and justice for all. | ||
| Do I read six? | ||
| Pursuant to clause 13 of Rule 1, the House stands adjourned until 11 a.m. on Thursday, April 24th, 2025. | ||
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unidentified
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The U.S. House has gabbled out. | |
| Be sure to follow our live coverage of the House here on C-SPAN when members return next Monday, April 28th, for legislative business. | ||
| And back now to our scheduled programming. | ||
| We join it in progress. | ||
| What they have been doing is canceling specific grants and programs under the appropriations. | ||
| And I may not know every example. | ||
| I certainly, you know, I don't spend my whole life trying to figure out exactly what the Trump administration is doing next. | ||
| And so I could be wrong about this, but at least of the ones that I have seen reported in the press and seen discussed, these are not cases where Congress has appropriated money to a particular thing and Trump has said, I'm not going to spend on that. | ||
| Rather, Congress appropriates money to a particular purpose, and then the executive branch has made grants that serve that purpose. | ||
| And that means, you know, discretionary grants. | ||
| And so the Biden administration shoveled out money to a lot of things that the Trump administration does not think were a good use of the money. | ||
| And the president does have substantial discretion to cancel individual grants under these programs. | ||
| What he can't do is cancel the overall spending. | ||
| Now, there was one instance, was the National Endowment for Democracy, where Congress appropriated a certain amount of money to that organization. | ||
| It had its own board. | ||
| Trump did not replace that board, but he did cut them off from their funding. | ||
| The National Endowment then sued. | ||
| And then rather quietly, the administration folded its tent and gave them the money that they were asking for, which I think is a recognition that somebody, some lawyers in the administration, realized that they had, at that point, were about to cross a line where they did not have much of a legal basis. | ||
| I do expect that they will create a test case, that there will be something where they publicly and formally assert an impoundment authority. | ||
| It will go to court, and I think they'll lose. | ||
| So you don't have any doubt about the constitutionality of the 1974 impoundment control act? | ||
| No, an appropriation is a law just like any other law. | ||
| And the president has the constitutional obligation to take care that laws be faithfully executed. | ||
| I want to pick up a little bit later on on this question of whether they've actually impounded funds. | ||
| But Louise, so talk to us a little bit about how this all works, the executive branch's authority, the Congress's statutory authority, and how they interplay and how that's relevant to where we are today. | ||
| So one of the great challenges of administrative law is that in order to have a functional government, you actually need to have Congress delegate discretion to the executive branch to implement everything, to implement all the statutes, to implement all the programs. | ||
| And at the same time that you need to have a functional government, you also have to have an accountable government. | ||
| And so you need mechanisms by which the executive branch can be held accountable for the choices that it makes, whether under spending or any other law. | ||
| And one of the real challenges of administrative law in general and spending law in particular is how to draw that line between discretion and flexibility and accountability. | ||
| And what I want to do now is talk a little bit about two buckets of discretion and flexibilities that the executive branch has been delegated in order to implement spending programs, because I think this will start to lay out some of the tensions between a full-on constitutional argument and narrower statutory arguments, a lot of which is what we're seeing. | ||
| So there's two buckets I want to talk about. | ||
| The first bucket I want to talk about is just the what we call budget execution tools. | ||
| So after Congress has passed appropriations law and the president has signed them into law, the money then has to go over to the executive branch to be executed. | ||
| And there's a series of tools, largely which reside in the Office of Management and Budget, or OMB, through which the executive branch implements these spending programs. | ||
| So let me just name these tools and I'm going to say a word or two about each one and how they might or might not be seen to grant different amounts of discretion. | ||
| So the first tool is called apportionment. | ||
| Apportionment is a part of the Anti-Deficiency Act and it was designed to make sure that agencies don't run out of money at the end of the year. | ||
| And so functionally what apportionment means is that often on a quarterly basis can be more frequent, can be less frequent, sometimes for the whole year, but by program, by program. | ||
| OMB, agencies don't just get their money from Congress. | ||
| It all goes through OMB apportionment. | ||
| And you can't, as an agency, spend any money unless OMB has apportioned it. | ||
| And complying with OMB's apportionments also is subject to the requirements of the Anti-Deficiency Act. | ||
| So you violate the Anti-Deficiency Act if you don't do what OMB says you have to do with your money. | ||
| So that's a flexibility. | ||
| And you can imagine ways in which an executive, in which the Office of Management and Budget wanting to do more or less with kind of control over agency spending could try to use the apportionment power more or less flexibly. | ||
| I have many specific examples I could give, but I'm now just going to be naming the tools. | ||
| So apportionment is one of these tools of kind of discretion in the executive branch to implement spending programs. | ||
| Another set of tools are the ability to transfer and reprogram, transfer money between different appropriations accounts for which you need statutory authority to do, and to reprogram money from one use to another use within one appropriations account, which is sort of typically understood to be part of what you're being delegated when Congress passes an appropriations law. | ||
| So if transfer and reprogramming sounds familiar to you, it's because some of those were the tools that the president used in the first Trump administration around moving money around to build the wall. | ||
| So you can again see from that little example that transfer and reprogramming is another example of flexibility that the executive branch has. | ||
| Again, we want the government to work. | ||
| To work, you need some degree of delegation. | ||
| Transfer new programming. | ||
| A third tool is the Empowerment Control Act. | ||
| And so we've talked a little bit about the two formal mechanisms in the Empowerment Control Act. | ||
| So there's rescission, where if a president wants to just cancel the money, he has to put together a package, send it to Congress, and Congress actually has to pass it before the money is canceled. | ||
| There's also deferral, where the president wants to delay spending money. | ||
| And again, you're supposed to send a notice to Congress and it can't be for a policy reason and you've got to be trying to work to implement the money. | ||
| So there's also deferral. | ||
| But there is a third tool that is not mentioned in the statute, but which GAO has inferred from the statutory design. | ||
| And that's called programmatic delay. | ||
| And the idea behind programmatic delay is that there are some statutes that provide flexibilities to the executive branch. | ||
| And in those statutes that provide flexibilities, especially where you are kind of trying in good faith to implement the program, but which GAO has also interpreted implementing the program in good faith can include if your statute has flexibility to coordinate with the president's program, that's then permissible under programmatic delay. | ||
| So programmatic delay is another tool that the executive branch can try to lean on to say that there's flexibility in the statute. | ||
| The last tool on this kind of budget execution that I'll mention before I move over to the other set of tools, the last tool I'll mention here is derived again from the Anti-Deficiency Act and that is the power of OMB to declare what shall remain open during a shutdown. | ||
| And this turns out to matter because, so appropriations tend to be for one year, right? | ||
| But there are many that are not for one year. | ||
| There are many that are funded for multi-years. | ||
| Or some years, there are appropriations that cover half the government for the rest of the year, but not. | ||
| So it's not as easy to say as like there's a government shutdown. | ||
| Government shutdowns are quite complicated in terms of what's, you know, where there is money and where there isn't money. | ||
| And so different presidents have made different, have made different choices, read statute, read underlying appropriations laws and the underlying authorizing laws in different ways to provide more or less flexibility about what actually can continue to operate under a shutdown. | ||
| And so that's part of the background that was going on in the last month or so as Congress is trying to decide what to do with the shutdowns. | ||
| So as you can see from just that set of tools of budget execution, it's not as though it's not as though there is no discretion given to the executive branch. | ||
| And where that line is, that's part of what we're working out. | ||
| That's part of the complexity of the current moment. | ||
| Okay, I want to say one thing about the other bucket of tools that the executive branch has some discretion in. | ||
| And these are the grant funding statutes. | ||
| I use grant funding as an example because that's the example that I know best. | ||
| There are contracts, you can think about other degrees of spending, but I've done a lot of work on the kind of federal grants regime. | ||
| And so I'll just say grants are a form of spending under appropriations laws. | ||
| They're justified usually. | ||
| There's underlying authorizing laws that set up the contours of the program. | ||
| But when the federal government is implementing grant programs, they do so in three different stages. | ||
| So the first stage is where they have to define the terms of the program. | ||
| So maybe for a competitive grant, they'll issue a notice of funding opportunity. | ||
| Well, what goes into that notice of funding opportunity? | ||
| What are we requiring? | ||
| How flexible is the underlying grant statute in terms of providing flexibilities to the agency as maybe controlled by OMB in the White House to put conditions in? | ||
| So that's the first level at which the executive branch can try to claim some flexibilities. | ||
| The second level of possible flexibilities in implementing grant programs comes at the award stage. | ||
| So great, we have our, you know, we're reviewing our grants applicants. | ||
| Who are we giving awards to? | ||
| And you can think about both factored into what conditions are in place, but also just you're looking at the array of, you know, there's a limited bucket of money. | ||
| You can't possibly give competitive grants to absolutely everybody who's applied. | ||
| That's another moment where there's flexibility that executive branch agencies can try to claim more or less of. | ||
| The last one is the one that I really want to flag, and that's the one that we are mostly in right now. | ||
| It is perfectly ordinary for the federal government to enforce the terms of its grant agreements, just as it's ordinary for the federal government to do enforcement across all other different dimensions. | ||
| I wrote a law review article a few years ago called Executive Branch Control of Federal Grantmaking Policy, Pork, and Punishment, where I tried to make the argument that pork was, you know, policy is what I described. | ||
| Pork is sort of like a complicated version of the award stage. | ||
| But punishment is a dangerous version of the ordinary process of grant enforcement. | ||
| And grant enforcement by statute, by regulation, there's a number of tools available to the executive branch. | ||
| And so think about if this sounds familiar to you, the ability to impose special conditions on grantees that are non-compliant. | ||
| That's actually in a regulation. | ||
| That's a long-standing regulation. | ||
| It's not usually applied to sort of like wholesale takeover a university. | ||
| But the idea that there is a regulatory legal component to impose special conditions on a non-compliant grantee in order to try to bring them into compliance, that's a discretion that the executive branch has. | ||
| And the last one I'll talk about is funding termination. | ||
| That's also, you know, we started to talk about this at the end of the last intervention. | ||
| That's also kind of written into the governing grant regulation that kind of applies across all agencies. | ||
| Now, there's all sorts of things that are supposed to happen along the process of grant terminations. | ||
| Historically, grant terminations have been extremely rare. | ||
| Almost never do agencies do funding cutoffs. | ||
| So rarely do agencies do funding cutoffs that in 2014, I wrote a defense of the funding cutoff, saying this ought to be a tool that agencies should lean more into in their articles. | ||
| So it's your fault. | ||
| Yeah, yeah, no, I know. | ||
| I know. | ||
| In the first week of the new administration, a colleague said to me, oh, you're finally getting your way. | ||
| I thought, well, this was not exactly, you know, like the rule of law context in which I envisioned funding cutoffs happening. | ||
| But the idea is that it's a tool that exists. | ||
| All right, but before I turn to Keith, I have a question for the lawyers. | ||
| If the president says Congress has appropriated money to the Department of Education, and I presume in the appropriations bill, there's a certain amount of money for personnel. | ||
| I haven't looked, but I assume. | ||
| Keith will correct me if I'm wrong. | ||
| And the president says, I want to lay off all these people. | ||
| I don't want to spend the money. | ||
| Is that, that's not a grant. | ||
| That's not in the grant bucket. | ||
| Is that legal? | ||
| Is that just another way of violating the Empoundment Act? | ||
| Congress said you should spend this money on personnel. | ||
| He's laying off all those people. | ||
| Now, for now, they're still getting paid because the Doge thing seems to be put people on administrative leave, pay them, and have them not do any work, which I haven't figured out the efficiency of that. | ||
| I heard about an employee of one agency who's required to log on, and she has some kind of device that moves her mouse. | ||
| So it looks like she's at her station. | ||
| But is that, where does that fall in all this black money? | ||
| So I think it depends. | ||
| And it depends because there is a statute that provides for reductions in force. | ||
| And so if you're following the reductions in force statute, then presumably you're able to not spend all the money on the employees that you would have had. | ||
| Now, I would say that that does sort of suggest that you want to be communicating with Congress and communicating with the appropriators. | ||
| Often these things are very informal. | ||
| I mean, I'm very eager to hear from our appropriator colleague, but sort of, you know, a lot of, there is a lot of kind of back-channel communication that is not sort of formal. | ||
| Judge McConnell, do you think it's you mentioned the example of the National Endowment? | ||
| That was a clear-cut case. | ||
| But what about laying off all the people at USIAD or the employees, not the grantees, or the Department of Education? | ||
| Isn't that not spending money that Congress is appropriate? | ||
| So I have to say, I haven't looked at the appropriation for USAID and don't know if there's a special line item within it for personnel. | ||
| I think with the Reductions in Force Act, that the administration does have a good deal of flexibility here. | ||
| And I also don't know what they're going to do because the administration doesn't tend to explain itself. | ||
| It just does things, and then we're left sort of scratching our heads and wondering what is the theory. | ||
| But at least one possibility is that they plan to use that money for direct services grants to do the work of USAID instead of, and I do not know if this is true, | ||
| but critics of USAID claim that a great deal of that money has gone to grants to NGOs that are really ideological in nature and not that it's illegal to do this, but simply not in accordance with the new administration's policies. | ||
| And as long as the money is being spent for the purposes of USAID or rescinded with Congress's approval, I don't think that there's going to be a problem. | ||
| I think we do not yet know. | ||
| You see? | ||
| So, Keith, we're going to move beyond the lawyers here to how the world really works. | ||
| So, talk to me a little bit about when Congress appropriates money, what are they thinking? | ||
| How much do they think they're binding the administration? | ||
| And is the reason that appropriation bills have gotten longer and longer over time is because they're trying to influence the administration? | ||
| The reason appropriations bills have gotten longer and longer over time is that both houses ignore their own rules. | ||
| Their standing rule of the Senate is you don't legislate on appropriations bills. | ||
| Same in the House of Representatives. | ||
| In the House, they take a bill to the floor and they waive all rules and they throw everything but the kitchen sink in. | ||
| In the Senate, they do the same. | ||
| Judge McConnell is quite right in saying that the entire congressional budget process is broken down almost irretrievably in the past 20 years. | ||
| And I think that perhaps one of the reasons why there's not more vocal uproar and outrage right now in the Congress about these potential impoundments is that nobody likes the Appropriations Committee. | ||
| Nobody likes the appropriations process. | ||
| It's an end-of-the-year thing in which very few people participate. | ||
| Bills are written by the leadership and huge packages are dumped on the respective floors in a sort of an up or down way. | ||
| The process has fallen into ill repute. | ||
| There was a time back when I was first working for Mark Hatfield and he was chairman of the Appropriations Committee in the Senate. | ||
| We could mark on the calendar when appropriations bills would come from the House. | ||
| The House committee, subcommittee, full committee floor. | ||
| Bills would come from the House like clockwork. | ||
| And the Senate committee would do the same. | ||
| It would report bills out with regularity, and things would move along. | ||
| That process is long gone. | ||
| It's not been around for a long time. | ||
| Why do you think that is? | ||
| What happened? | ||
| Well, I have some personal pet theories about that. | ||
| Wendell could probably chime in on some of this. | ||
| In my view, it goes back to the days of Newt Gingrich. | ||
| And he was the one that instructed the Rules Committee, we're no longer going to have, this can get very technical. | ||
| We're no longer going to have amendments in disagreement. | ||
| We're going to have everything can be made in order and put inside a conference report. | ||
| So there will be an up-and-down vote on a conference report on an appropriations bill. | ||
| And once that door was opened, that's when more and more things started getting loaded in to appropriations bills. | ||
| The rules were there for a reason. | ||
| If you try to legislate on appropriations bills, it will gum up the process. | ||
| Explain to people who aren't, what's the distinction between legislating on an appropriations bill and what's the alternative. | ||
| Legislating means Congress says we want to have a program that does X, and the appropriations bill is how they fill the tank to spend money. | ||
| Exactly. | ||
| Exactly. | ||
| The last annual authorization act that still is around is the National Defense Authorization Act, an authorization bill that passes every year. | ||
| No other authorizing committee does that on a regular basis anymore. | ||
| So instead, they turn to the one process that at the end of the day, at the last minute, there will be a vehicle that will get signed in the law. | ||
| I see. | ||
| And you say that the reason we haven't heard more from Congress is that everybody hates the Appropriations Committee, but the appropriators have been surprisingly quiet as well. | ||
| Well, that's true. | ||
| Certainly on the Republican side. | ||
| Yeah, yeah. | ||
| Yeah, well, Rosa Delora has not been quiet. | ||
| No, no, nor has Patty Murray. | ||
| Yeah, yeah. | ||
| I mean, she made her views pretty clear in the confirmation hearings at Russell Volt. | ||
| Yeah. | ||
| So do you think something good comes out of this confrontation that Congress realizes that it's screwed things up, or is that just too optimistic? | ||
| No, I don't think that's too optimistic. | ||
| I think that's entirely possible. | ||
| I mean, we'll have to see how the FY26 appropriations process moves along. | ||
| And will they move individual bills and what will be in them? | ||
| And will they actually go to conference on individual bills? | ||
| Or even if we wind up once again with an omnibus at the end of the year, what's going to be in it? | ||
| What's it going to look like? | ||
| How's the administration going to react to it? | ||
| Josh, Judge McConnell mentioned the famous case which defenders of the president often mention, talk about Jefferson. | ||
| But I read something you wrote where being the law professor you are, you read the statute. | ||
| And as I recall, what you said is the statute was the president may appropriate, may spend money to buy up to five or something like that. | ||
| Right. | ||
| So the statutory language there actually says may spend up to, I think it was $50,000 to purchase up to however many votes it was, right? | ||
| So it was the statute in that case is actually permissive, right? | ||
| It's an example of, you know, it's an example of precisely the kind of discretion that LOES is talking about, right? | ||
| So, any sort of rationally designed appropriation system, Congress is going to want to give the executive a certain amount of discretion. | ||
| And I think Professor McConnell's absolutely right that for much of the 19th century and into the 20th century, there was a sort of canon of statutory construction of appropriation statutes where they were interpreted as ceilings, not floors, on the assumption that the executive was going to be working towards congressional purposes and not working at cross-purposes. | ||
| So you have an Attorney General opinion from 1896, I think, where the Attorney General says, you know, it's okay to spend less money, but because you're sort of carrying out Congress's purposes and you just got a good deal on it, right? | ||
| And that was an understanding shared by Congress and the presidency of sort of how we should understand appropriation statutes, right? | ||
| And then when you get Nixon's sort of policy impoundments at large scale, right, then I agree completely with Professor McConnell, then Congress comes back and says, no, we did not, you know, we don't want to have you to have the discretion to spend less than it's appropriated simply because you don't like the policy. | ||
| Well, you know, Congress expresses its intentions on appropriations and how they should be spent in report language from the respective committees on appropriations. | ||
| And from time to time, there have been various administrations who have said, well, now, wait a minute, report language is not law. | ||
| That never goes well for them. | ||
| Right. | ||
| Back in the day, for example, the Energy and Water Appropriations Bill provides money for the Corps of Engineers for construction projects all over the country. | ||
| The report would enumerate, here would be a list of construction projects. | ||
| They would add to a certain total. | ||
| Then there would be a line called savings and slippage, and that would be a minus. | ||
| And then there would be a net, and that net was what was actually appropriated in law in the bill. | ||
| And that line about savings and slippage was congressional recognition that construction projects don't always go the way the Corps of Engineers has told us they're going to go in the justification documents they presented to us. | ||
| So Congress is acknowledging that money identified for specific projects in report language may not actually be spent that way. | ||
| Well, Jim Miller in the second administration of the Reagan years pronounced that federal executive agencies did not need to follow report language. | ||
| This caused some tremors in the force. | ||
| And there was a meeting with Senator Hatfield and there was a rather stern discussion. | ||
| And later on in that process, Howard Baker, who was by then President Reagan's chief of staff, told Mr. Miller to calm down. | ||
| And things went along. | ||
| Mr. Panetta, during the Clinton administration, at one point voiced the same view that, hey, you know, it's just report language. | ||
| We don't have to follow this. | ||
| He had a similar conversation with Senator Robert Byrd. | ||
| And the outcome, again, was the same. | ||
| But fewer fingers when that was done. | ||
| Yes. | ||
| I mean, the whole business about the empowerment stuff is going to be, it seems to me, determined on is this a refusal to spend money because of a policy disagreement. | ||
| The executive branch has lots of reasons not to spend money that are perfectly appropriate. | ||
| But when Congress appropriates a billion or $2.9 billion for a Corps of Engineers construction, you better spend that money. | ||
| And if and if the president says, no, I'm not going to do it. | ||
| I'm only going to spend a billion. | ||
| That seems to me as a policy difference. | ||
| And that's arguable and actionable. | ||
| But who's got standing? | ||
| That'll be interesting. | ||
| I want to get to it. | ||
| So just to say one other thing before we talk about the courts, I mean, one of the driving features of this system, I think strictly as a matter of law, report language is actually not binding. | ||
| Right? | ||
| Like, as a matter of law, that's a true statement. | ||
| But the whole way that this system works is through a series of soft law relationship, right? | ||
| Like, why would you bite the hand of your funder? | ||
| You know, like, so relationships not just with OMB at the highest levels and with the highest levels of, you know, the actual appropriators, but staff to staff, right? | ||
| There's just so much kind of interaction on the assumption that you care about your programs, you want them to get funded next year, and so you want to try to follow what the appropriators do. | ||
| So for me, one of the takeaways slash questions slash things to watch is what is Congress going to do? | ||
| Right? | ||
| So like we're talking about the FY26 that you're talking about. | ||
| I mean, this is really the question is, is there, are they going to come back in any kind of meaningful way to hold the administration accountable for the spending problems that have just been taking place in this fiscal year? | ||
| What does that mean? | ||
| Hold them accountable. | ||
| Are they going to put more limitations in? | ||
| Are they going to tighten up restrictions? | ||
| Are they going to insert, are they going to take away money for the secretary's office? | ||
| So there's sort of various tricks to sort of make sure that we mean it for this program, but we are going to place limits on the secretary in different ways. | ||
| And then the follow-up question for that will be, if in fact Congress does that, will the administration follow it? | ||
| And it's important to remember, thank you for raising this, that the committees on appropriations don't simply recommend the expenditure of money. | ||
| They also recommend not spending money. | ||
| And for decades, the benchmark for measuring an appropriations bill was where it stood relative to the president's budget request. | ||
| Every single report on every single appropriations act, there it is for each account, last year's enacted level, this year's president's request, recommended amount. | ||
| And the two respective committees took great and justified pride in, in total, recommending appropriations that were less than the president's budget. | ||
| He also sometimes said, thou shalt not spend money on abortions or whatever. | ||
| Well, that's... | ||
| Josh, you were trying to get in here. | ||
| Well, that's the thicket of legislating on appropriations bills. | ||
| Well, one thing I just wanted to bring in is, you know, one thing that a number of us have said, I think all of us have said at one point or another, is we're not exactly sure what the administration is doing, but we think it might be this, we think it might be that. | ||
| And I think it's worth noting one reason for that is a sort of flagrant illegality of this administration, which is that as an appropriations writer, what, three years ago, two years ago, OMB was required to post on its website apportionments. | ||
| And as of what, three or four weeks ago, they've just taken that website down. | ||
| And the only justification is a two-paragraph letter that says, we think this information is confidential, citing to absolutely no legal authority for taking it down. | ||
| So there's both the question of what Congress is going to do about it. | ||
| There's also the question of how much Congress is even going to be able to know about the spending decisions that are made. | ||
| And that feeds into why we can't say really specific things about what's going on, because this is also sort of being hidden from the public. | ||
| Well, if I might just jump in. | ||
| Yes, I have. | ||
| We don't know what Congress is going to do in response, but at least one possibility is that they're going to support the administration on a lot of this by cutting spending. | ||
| I think there seems to have been, I'm not a politician, I don't know, and I even live in California, which is a long way from all these things, but it seems to me there has been a bit of a mood shift in the last six months between and the direction of more budget restraint. | ||
| Well, maybe. | ||
| I mean, it seems to be a belief in general on budget restraint unless you're the senator from Missouri and discover the restraints coming on Medicaid or something like that. | ||
| But Judge McConnell, what role, and I want to ask you about this as well, Elise, what role do the courts play here? | ||
| What is it that the courts will be asked to decide, do you think? | ||
| I know we're speculating. | ||
| And where are there tough questions that the courts are going to have to wrestle with? | ||
| So this is, again, not entirely clear, but I think that if you look both at the impoundment litigation under Nixon and then again under Clinton, there was a URSAT's line item veto authority that the court was held unconstitutional on. | ||
| And all of those cases would-be grantees, that is, the people who would have gotten the money had it not been for the executive action, were able to sue. | ||
| They had standing. | ||
| And the courts would hold that whatever it was that was standing in the way of their getting their money was illegal or unconstitutional. | ||
| This was not done, I believe, under the Administrative Procedures Act. | ||
| Just yesterday, there was a decision out of the district court in Rhode Island that held that billions of dollars in funding not cutoffs, freezes, which I think is a delay rather than an actual funding cutoff, were arbitrary and capricious. | ||
| And this, I think, is a new assertion of judicial power over spending because arbitrary and capricious, and in this context, seems to mean we just don't think that the executive is offered a good enough reason. | ||
| But I think historically the making of grants, and Liz can correct me about this because she seems to know a lot more than I do about the actual operations of the termination power. | ||
| But I don't think any of them have ever been accompanied by statements of reason that would be the typical fodder for Administrative Procedures Act's claims. | ||
| Take that, but I also want you to talk about the pros and cons of having the courts in this world. | ||
| So I said at the beginning that one of the central challenges of administrative law is how do we draw the line between discretion and accountability. | ||
| And in most of administrative law, we draw the line under suits under the Administrative Procedure Act. | ||
| And we allow the executive branch a fair amount of discretion, the extent to which it exists under its governing statutes. | ||
| And yet, individual people can sue to make sure, you know, to hold the executive branch accountable. | ||
| One of the real challenges in spending law, in appropriations law, is that there are a lot of threshold questions that typically are more straightforward in the non-spending context than in the spending context. | ||
| And those threshold questions have often acted to keep spending questions of a whole variety of ways out of court. | ||
| So some of them are the standing questions. | ||
| Is somebody actually injured by this thing that the agency or the executive branch has done? | ||
| It's easy to see if it is your particular grants being taken away from you. | ||
| It's harder to see if it's just the agency isn't spending its appropriations to hold up its agency well. | ||
| Who has standing for that? | ||
| So standing is a challenge. | ||
| Reviewability, is this the kind of thing that a court is able to review because there's some kind of judicially manageable standard against which to assess the reviewability? | ||
| Well, the Supreme Court held some years ago that lump sum spending under which a lot of appropriations accounts operate, that that's not a, when the executive branch chooses how to spend from within that lump sum, that it's not a reviewable question for courts. | ||
| There's a third hurdle to get into court called cause of action. | ||
| And again, there's kind of obvious causes of action under the Administrative Procedure Act. | ||
| But if you're trying, again, to challenge just an appropriations clause issue or an appropriations provision, it's not exactly obvious how to get a cause of action out of that. | ||
| And there's been some cases, especially coming under the last Trump administration, where people were challenging about that. | ||
| So these are just sort of a set of preliminary hurdles. | ||
| And also then where to bring the case. | ||
| And so I would actually say typically most grant disputes that have made it through these spending hurdles have actually been in federal district court under some version of either the Administrative Procedure Act or just a challenge to the underlying statutory reading, this underlying statutory interpretation. | ||
| So most of the Nixon-era lawsuits were based on just the plain reading of the statute. | ||
| Did the statute allow this kind of discretion? | ||
| But the Supreme Court has now sort of raised this question that maybe these cases ought to be heard in the Court of Federal Claims under the Tucker Act for kind of money damage. | ||
| Find the Court of Federal Claims. | ||
| The Court of Federal Claims is, so usual federal courts, district courts, courts of appeal, federal courts of appeal are where you go to hear kind of a wide variety of challenges, including under the Administrative Procedure Act that the government acted arbitrarily and capriciously, it violated your statute, and so forth. | ||
| The Tucker Act in the Court of Federal Claims is where you're supposed to go if you just have a money damages claim against the government. | ||
| And so the Supreme Court, again, is kind of like on the shadow docket and not really thought out. | ||
| There was not really any rationale for it. | ||
| It was a, we think this is likely. | ||
| It was on a preliminary injunction, kind of, you know, maybe standard, not like an actual rule of law standard. |