Trump Plan To Bypass Congress and Starve ‘The Deep State’

[Maj. Bill Martin]

Suppose a GOP Congress passes a law to build a wall in the southern border, appropriates the money, and a Democratic President refuses to build it anyway?

Are we all okay with that?

[Hoodat]

Suppose a GOP Congress passes a law to build a wall in the southern border, appropriates the money, and a Democratic President refuses to build it anyway?

Are we all okay with that?

Constitutionally, yes.  This happens all the time.  And if the States don't like it, then they should do a better job at picking Presidents.

[Bigun]

I'm done with arguing with top water lawyers on this site who have zero understanding of constitutional law. I'll see you in court!

[Hoodat]

It’s simply astounding how penumbras and emanations are invalid when it comes to an end result that certain people hate - abortion - but are constitutionally mandated when it comes to an end-result that those very same people love.

Not sure what you mean by "penumbras and emanations", so I'll just stick with what the Constitution says.

The president does not have some magical power to frustrate the enacted will of Congress when it comes to spending, any more than he has the power to frustrate it’s enacted will in any other respect.   

Executive power belongs to the President, not the Legislature.  The Constitution is quite clear on that.  And I have yet to see anything in it that grants Congress the power to micromanage what the Executive Branch does.

The very same people who are screeching that the Republic is over because Biden is choosing to not enforce Congress’ duly enacted immigration laws are now here singing hosannas to the presidents supposed ability to choose not to enforce a duly enacted law that mandates spending.

Uh, no.  People are complaining because the US Goverenment is not protecting the States from invasion, contrary to its Constitutional duty.

[Maj. Bill Martin]

Constitutionally, yes.  This happens all the time.  And if the States don't like it, then they should do a better job at picking Presidents.

Like when?

[Ghost Bear]

How would it violate the separation of powers?

The Constitution clearly gives to Congress the power to enact legislation, including legislation directing that federal funds be spent in a particular manner, and it also clearly gives the president the power to restrict those legislative actions of the Congress with which he disagrees - the veto power.

The Constitution's structure in this regard is quite clear, and balanced; it gives to each its proper sphere of power, and regulates how each branch may countermand the other.

Importing some shadowing impoundment power for the president into the Constitution is nothing more than the same sort of penumbras and shadings an earlier Court used to import a right to abortion into the Constitution.

If the latter fails, so too must the former.

As I said before, I am not a lawyer, nor am I a Constitutional scholar. I think the other responses on this thread which differ from your position demonstrate my original statement: an argument could be made. Ultimately the Supreme Court would rule however they decide they feel like ruling on that given day, because the rule of law is dead in this country.  And the shambling corpse of the Republic would continue tottering along for a little while longer.

[Hoodat]

Like when?

Yucca Mountain.  Congress appropriated money for waste storage.  The Executive Branch didn't store any waste.  They delayed and delayed.

Cold River, Mo.  Qualifies as Superfund site under the Superfund Act.  But the Executive Branch refuses to spend any of that money on cleanup.

Any infrastructure bill.  Billions appropriated for bridge projects, road projects, etc.  But those projects get delayed on purpose because Administration sets other priorities.

Again, the Executive branch has executive power - not Congress.  Congress fills the account.  But the President alone gets to spend (or not spend) it.  Congress doesn't control the Treasury Department.

[Maj. Bill Martin]

Yucca Mountain.  Congress appropriated money for waste storage.  The Executive Branch didn't store any waste.  They delayed and delayed.

Cold River, Mo.  Qualifies as Superfund site under the Superfund Act.  But the Executive Branch refuses to spend any of that money on cleanup.

Any infrastructure bill.  Billions appropriated for bridge projects, road projects, etc.  But those projects get delayed on purpose because Administration sets other priorities.

Again, the Executive branch has executive power - not Congress.  Congress fills the account.  But the President alone gets to spend (or not spend) it.  Congress doesn't control the Treasury Department.

In almost every one of those cases, the projects were held up by environmental challenges under the law.  Those challenges/delays may ultimately have failed, but the idea that the President can just refuse to spend money because he disagrees with it doesn't hold up.

The President is charged by the Constitution to "take care that the laws be faithfully executed".  If Congress passes a law saying that a wall shall be built, and then appropriates funds for that, the faithful execution of the laws requires the President to do that.  Now he may refuse, but that doesn't make his refusal something that can be justified by the Constitution.  It's just an extra-Constitutional assertion of power.

[Hoodat]

On one side of this argument, we have the premise that the Executive Branch alone is in charge of spending the money that Congress appropriates.  The Constitutional basis is as follows:

Article II, Section 1

The executive power shall be vested in a President of the United States of America.


On the other side of this argument, we have the premise that once Congress appropriates money, the Executive branch forfeits its executive powers and must follow through with spending any money that Congress appropriates.  The Constitutional basis is as follows:

[Hoodat]

In almost every one of those cases, the projects were held up by environmental challenges under the law.

Environmental challenges by the Executive Branch itself.  Congress says 'yes'.  The EPA says 'no'.  Money doesn't get spent.  How about that?  See how that works?

the idea that the President can just refuse to spend money because he disagrees with it doesn't hold up.

Your basis?

The President is charged by the Constitution to "take care that the laws be faithfully executed".

So if you stick something in your neighbor's mailbox, and the mail person discovers it, then the President has to charge you with felony mail tampering because Congress made a law?  Yeah, right.  No more plea deals.  If Congress says something is a crime, then the Executive Branch no longer gets any leeway in running the Justice Department.  They have to do exactly what Congress says.  Right?

If Congress passes a law saying that a wall shall be built, and then appropriates funds for that, the faithful execution of the laws requires the President to do that.

Yet there are tens of billions of dollars sitting in the EPA Superfund, with an EPA refusing to use it.  Or how about all that money that was set aside to fix our electric grid?  Yet that money continues to sit in our Treasury unspent.  Or all that Covid money?  Or the money given to the Defense Dept. to close military bases?

Again, please site that part of the Constitution that gives Congress Executive power.

[Maj. Bill Martin]

Environmental challenges by the Executive Branch itself.  Congress says 'yes'.  The EPA says 'no'.  Money doesn't get spent.  How about that?  See how that works?

You are overlooking the fact that the EPA itself is a creation of Congress to which Congress has delegated certain authority to operate under certain congressionally defined restrictions.  What you're really talking about here is a conflict between two different laws passed by Congress.   In those situations, the executive has a legal basis to not comply immediately with a spending decision because it also is required to comply with other congressional mandates or restrictions.

So again, it is not a situation where the executive is refusing to spend authorized funds simply because it disagrees with a program entirely.
 

So if you stick something in your neighbor's mailbox, and the mail person discovers it, then the President has to charge you with felony mail tampering because Congress made a law?  Yeah, right.  No more plea deals.  If Congress says something is a crime, then the Executive Branch no longer gets any leeway in running the Justice Department.  They have to do exactly what Congress says.  Right?

Depends. If a law expressly says that something "shall" be done, then there is no discretion to not do the thing being compelled.

But criminal laws are not written that way. They define what a crime is, and say what individuals may and may not do, but there is nothing in basic criminal law saying that the executive "shall" prosecute every instance of the crime.  There are a lot of obvious reasons for that, including the fact that whether or not has a crime has been committed is a judgment call that inherently requires discretion.   That being said, there are instances in the criminal law where the word "shall" doesn't leave the government with any discretion, and those mandates are routinely followed.  Mandatory sentencing guidelines, etc.

Yet there are tens of billions of dollars sitting in the EPA Superfund, with an EPA refusing to use it.  Or how about all that money that was set aside to fix our electric grid?  Yet that money continues to sit in our Treasury unspent.  Or all that Covid money?  Or the money given to the Defense Dept. to close military bases?

I've addressed this before and you did not respond to my point.  In those cases you have cited, there generally are laws Congress passed other than the spending authorization that also must be complied with. That may include permitting, or other considerations that are built into the law itself, and that must be complied with.  Going through that process may take an extraordinarily long period of time, but that process itself was created by Congress.  What you don't have is a flat refusal by the executive to proceed with the project simply because it disagrees with the project on principle.

Again, please site that part of the Constitution that gives Congress Executive power.

There isn't. The same as there isn't a provision of the Constitution giving to the Executive Branch Congressional Power.

Now personally, I believe that Obama could have been impeached for deliberately refusing to enforce immigration laws under the same "take care" provision of the Constitution I referenced previously.

But even then, Obama concocted some BS reasons about how he really was complying with the law, and exercising his right to Grant waivers, etc. He never publicly took the position that he had the right to flatly ignore laws simply because he was President.

[Kamaji]

Penumbras and emanations.  It didn't work for abortion, and it doesn't work for impoundment.

If Congress enacts a law that says the President must do X, and must spend $Y to do so, the President's only course of action under the Constitution is do faithfully execute that law by doing action X and spending $Y.

Anything else is an unconstitutional usurpation by the President of the Congress' power to make the law.

[Fishrrman]

Impoundment isn't going to work.

I have a much better plan to stop "the deep state".
Stop it dead in its tracks.

The entire leviathan could easily be brought to a dead halt in a matter of a few days. Without Congress' involvement at all...

[Hoodat]

In those situations, the executive has a legal basis to not comply immediately with a spending decision because it also is required to comply with other congressional mandates or restrictions.

In other words, Congress is not fit to engage in executive action because of contradictory legislation.  And by your own admission, the Executive branch cannot comply with contradictory orders.  Which is why our Founding Fathers decided that all Executive power rests with the Executive branch.   That's why it explicitly states this in the Constitution.

So again, it is not a situation where the executive is refusing to spend authorized funds simply because it disagrees with a program entirely.

Whoa there, Hoss.  You just introduced 'motive' into the equation.  In other words, the goal posts just moved.  It doesn't matter one iota what the Executive Branch's reason is for exercising (or not exercising) Executive power.  The Constitution explicitly reserves this power solely for the Executive Branch with zero regard for any agreement or disagreement that branch may have.

Depends. If a law expressly says that something "shall" be done, then there is no discretion to not do the thing being compelled.

Again, where can I find that written in the Constitution?  I am very interested in seeing this 'micromanagement clause'.

But criminal laws are not written that way. They define what a crime is, and say what individuals may and may not do, but there is nothing in basic criminal law saying that the executive "shall" prosecute every instance of the crime.

So the flip side of that is if Congress wrote into law that the Executive Branch had to prosecute every instance of jaywalking, that they could somehow compel the Executive Branch to do exactly that?  Seriously?  Do you have any idea how asinine that sounds?  Congress directing US Marshalls to arrest jaywalkers, and then directing US Attorneys to prosecute those cases?  Again, where in the Constitution does it grant the Legislature this Executive power?

That being said, there are instances in the criminal law where the word "shall" doesn't leave the government with any discretion, and those mandates are routinely followed.

Where can I find it written in the Constitution where the Executive Branch must spend money if Congress puts the magic word "shall" in the bill?

Mandatory sentencing guidelines, etc.

Even with mandatory sentencing, the Executive Branch has the discretion to release someone early.  That's written in the Constitution, too.

I've addressed this before and you did not respond to my point.  In those cases you have cited, there generally are laws Congress passed other than the spending authorization that also must be complied with. That may include permitting, or other considerations that are built into the law itself, and that must be complied with.

But we're talking about Executive Authority here.  Specifically when it comes to spending.  And last time I checked, there was a ton of money earmarked for Superfund cleanup that was still sitting in the Treasury unspent because the EPA didn't feel like spending it.  Add to that money for highways, bridges, electric grid improvements, employee training, pensions, etc. that is sitting unspent, usually because of bureaucratic incompetence (not that it matters why).  And there isn't anything in the Constitution that compels the Executive Branch to forfeit its Executive power to the Legislature.

Now personally, I believe that Obama could have been impeached for deliberately refusing to enforce immigration laws under the same "take care" provision of the Constitution I referenced previously.

Good luck with that one.  You would have a much stronger case pursuing Article IV, Section 4.

But even then, Obama concocted some BS reasons about how he really was complying with the law, and exercising his right to Grant waivers, etc. He never publicly took the position that he had the right to flatly ignore laws simply because he was President.

Oh, so now it only counts if one publicly takes a position?


For the umpteenth time, show me where in the Constitution it grants Executive Power to the Legislature.