The Trump administration has teed up a blockbuster legal showdown that will test the authority of the executive branch to rein in Congress’ power to appropriate funds, despite the administration’s efforts Wednesday to circumvent a brewing court battle.
Legal experts predict that the new administration is likely to lose its fight, which stems from an Office of Management and Budget memo Monday announcing a freeze on federal grants and loans, including funds for clean drinking water, scientific research and tribal governments. A federal court Tuesday blocked the memo, prompting the White House to rescind the document — but not the funding freeze.
White House press secretary Karoline Leavitt posted on social media Wednesday that the move was intended “to end any confusion created by the court’s injunction,” but court watchers say it won’t be that easy for the Trump administration to dodge its legal troubles.
“There’s no question that the freeze is what was illegal, not the specifics of the memo,” said David Super, a law professor at Georgetown University who specializes in administrative and constitutional law. “The president lacks any legal authority to withhold most of these funds. I would expect most judges would react very negatively to a bad-faith attempt to do precisely what they have been told not to do without persuading a court to rescind its order.”
And while the attempts at a spending freeze have so far only faced the scrutiny of skeptical Democratic-appointed judges, legal experts say the maneuvers are just as unlikely to survive review by the conservative-dominated Supreme Court, where the Trump administration appears eager to make its case.
“The Supreme Court has been very clear that Congress has the power of the purse,” said Samuel Bagenstos, a law professor at the University of Michigan and former general counsel to OMB under former President Joe Biden.
Trump’s funding pause had been set to take effect at 5 p.m. Tuesday but was blocked by a federal judge in Washington minutes before the deadline. Another federal judge in Rhode Island during a hearing Wednesday appeared ready to issue another order against the Trump administration’s funding pause, even in the absence of the OMB memo.
State challengers in the Rhode Island case submitted a proposed order Thursday that would block the administration from withholding funds but allow the government to continue its review of financial assistance programs identified in the OMB memo.
Nonprofit groups and Democratic-led states leading the two lawsuits have raised a number of legal arguments against OMB’s move, including claims that the freeze violates the Congressional Budget and Impoundment Control Act, or ICA, which restricts the president’s ability to decline to spend — or “impound” — funds appropriated by Congress.
The statute bars even temporary withholdings. It also allows deferrals if a president sends a special message to the legislative branch — a step Trump does not appear to have taken — but even then, the delay cannot be due to policy reasons, Bagenstos said.
He pointed to a 2020 decision from the Government Accountability Office that said the first Trump administration could not hold back funds Congress had obligated to the Department of Defense to assist Ukraine.
“Faithful execution of the law does not permit the President to substitute his own policy priorities for those that Congress has enacted into law,” GAO found.
In 1988, the Justice Department’s Office of Legal Counsel, which tends to side with presidents in battles over separation of powers, issued a Reagan-era memo finding “no textual source” in the Constitution for inherent impoundment authority.
Even if the ICA did not exist, Trump would not have the power to freeze funds, Richard Kogan, a former senior OMB adviser during the Obama administration, wrote in a November post for the Center on Budget and Policy Priorities.
“This notion that the ICA is what restricts presidential authority to impound funds enacted by law is contrary to legal precedent — and to the Constitution,” Kogan wrote. “The Constitution gave Congress the power of the purse, and that power precludes the President from unilaterally deciding not to spend money that Congress has provided.”
Supreme Court precedent
Trump’s funding pause is the biggest impoundment that any president has mounted since former President Richard Nixon in the 1970s, moves that prompted Congress to pass the ICA in 1974.
In its unanimous 1975 decision in Train v. City of New York, the Supreme Court ruled that EPA under Nixon as part of a broader impoundment had unlawfully allotted less than the maximum amount of funds Congress had appropriated for controlling and abating water pollution.
Later, in the 1998 case Clinton v. City of New York, the court issued a 6-3 ruling faulting former President Bill Clinton for cancellation of funding provisions in two federal statutes.
“The question of impoundment has been litigated, and the answer of the courts has been extremely clear,” said Super.
And in a case decided last term, the Supreme Court in a 7-2 ruling that did not break down along ideological lines resoundingly endorsed Congress’ power to allow the Consumer Financial Protection Bureau to draw money from Federal Reserve System earnings.
The decision “showed surprising deference to how Congress structures the appropriations process,” said Robert Percival, director of the University of Maryland’s Environmental Law Program.
Trump’s best argument
Court watchers say the new president clearly has an appetite to get the Supreme Court to rule that the ICA is unconstitutional.
In a September 2024 post by the Center for Renewing America, a group founded and staffed by Trump OMB officials, allies of the president wrote that the ICA attempts to tear away executive authority to decline to spend the full amount of an appropriated fund.
They cited the Supreme Court’s presidential immunity ruling last term in Trump v. United States as affirming that power.
“Just as the President has discretion to not enforce every criminal law to the fullest extent, the President may make judgments on the extent to which to expend appropriations,” said the post, which was co-authored by Mark Paoletta, OMB general counsel during Trump’s first term. “Impoundment is simply another word for the President’s Article II authority to implement spending measures enacted by Congress in a responsible manner.”
The administration has said that it will only pause funding “to the extent permitted by law.”
But many legal experts said that the Trump administration appears to be banking on the fact that the extremely conservative Supreme Court — three of whose members were appointed by the president in his first term — will be sympathetic to its ICA claims.
“They’re betting that carries this case their way,” said Bagenstos.
Reporters Niina H. Farah and Lesley Clark contributed.