“I have a phone and a pen,” President Barack Obama said when Congress rejected his request for a change in immigration law. With his phone and his pen, Obama created temporary amnesty for the Dreamers, and for parents of children born in America. He had recognized during his first six years in office that he needed Congress to change the immigration laws; but when the Congress went Republican at the start of his last two years, out came Obama’s phone and pen. The U.S. Court of Appeals in New Orleans ruled against Obama, but it couldn’t order him to deport anyone, so Obama got his way.
Now, President Donald Trump is stopping federal government grants in favor of diversity, equity and inclusion (DEI) throughout the government and payments of foreign aid through the United States Agency for International Development (USAID).
Last week, recipients of USAID grants filed lawsuits in response. They say only Congress can decide to fund, or not to fund, those grants. Trump argues he can use his phone and pen to terminate these federal grants, just by stopping payment on US government checks.
The US Constitution creates a separation of powers: Congress makes laws and presidents enforce them. Through executive orders and instructions to executive branch officers, presidents over the last century have eroded that fundamental principle. However, there have been times when the Supreme Court has stepped up to the challenge of reestablishing the line that the executive branch may not cross.
The clearest example was in 1975. President Nixon was worried about the growth in federal spending; just as President Trump is today. Congress had appropriated more money to spend than the federal government had received in taxes; just like today. So Nixon ordered executive agencies to spend less than the full amount Congress had appropriated, thereby bringing the budget closer to balance. New York City, a recipient of a grant to deal with water pollution, sued to compel the expenditure. New York argued that the appropriation was law; it was passed by Congress over Nixon’s veto. The Supreme Court ruled for New York: Nixon had to spend the money.
Based on this 1975 precedent, if a recipient of a specific grant already approved, for example, by USAID, were to sue the Trump administration, that recipient is likely to win.
However, in its 1975 decision, the court explicitly left open the situation where Congress had given the executive branch general authority to make grants, and even appropriated a lump sum to do so, but the department had not yet made a specific decision. The court did not say the president would have to spend the money in that circumstance, and for good reason. A court cannot order the executive branch to spend money that has not been specifically designated, without a different separation of powers problem arising: the rule that courts may not legislate.
How can a court decide how USAID should spend whatever part of its $40 billion grant budget that has not yet been specifically allocated? Indeed, under the federal courts’ rules of standing, someone seeking a grant, but without a specific commitment already, would be kept from even filing a case since her or his claim would be too speculative. So, federal courts can order specific USAID grants, and specific DEI projects funded in the budget, to proceed; but when projects in that pipeline are exhausted, Trump will prevail.
At that point, if Congress wants a specific USAID grant to proceed, say, for malaria-preventive mosquito nets in Africa, it can require the program in next year’s appropriation bill. President Trump can approve or veto that bill. All Congress has to do, to restore its proper role in the separation of powers, is to specify how it wants money to be spent. If it fails to do so, favoring broad grants of delegated authority instead, Congress should not be surprised if a president’s phone and pen prevail.
Tom Campbell is a professor of law and a professor of economics at Chapman University. He served five terms in the US Congress. He is the author of a constitutional law text, “Separation of Powers in Practice.” He left the Republican party in 2016 and has been active in attempting to establish a new California political party, the Common Sense Party.