McConnell’s order is significant not only because it puts a second court order between the Trump White House and its proposed spending cuts, but because of who McConnell cites to justify his decision: Justice Brett Kavanaugh, a Republican appointed to the Supreme Court by Trump in his first term. That citation suggests Trump’s effort may be on its way to being declared unconstitutional before the Supreme Court, once this legal challenge reaches the justices.
Shortly after taking office this month, Trump issued a series of executive orders seeking to reduce or end spending on a variety of issues, from foreign aid, to diversity programs, to what Trump calls “gender ideology extremism.” On Tuesday, the White House Office of Management and Budget (OMB) issued a memo purporting to implement these executive orders, which seemed to call for an absolutely sweeping pause on government funding.
Still, the current Supreme Court has a 6-3 Republican supermajority. And all six of those Republicans ruled over the summer that Trump has broad immunity from prosecution for crimes he commits using the powers of the presidency. So it’s not entirely clear whether these Republican justices will follow the consensus view.
McConnell’s order, however, quotes from a 2013 opinion by then-federal appellate Judge Kavanaugh, which rejects the idea of impoundment and even cites a 1969 Department of Justice memo written by future Chief Justice William Rehnquist that reads: “It is in our view extremely difficult to formulate a constitutional theory to justify a refusal by the President to comply with a congressional directive to spend.”
According to Kavanaugh’s opinion, “even the President does not have unilateral authority to refuse to spend” funds appropriated by Congress.
Meanwhile, another member of the Supreme Court’s Republican majority, Chief Justice John Roberts, expressed similar views when he was a lawyer working in the Reagan White House. In a 1985 memo, Roberts wrote that it is “clear” that the president cannot impound funds in “normal situations.” Roberts added that “no area seems more clearly the province of Congress than the power of the purse.”
It is, of course, possible that Roberts or Kavanaugh have changed their views on this topic. It is also possible that they will ignore their own beliefs about the law because they want to help out a Republican president. But, assuming that both justices hew to their past views, it suggests that there are at least five votes on the Supreme Court against Trump’s impoundment efforts should this case reach the highest court: Roberts, Kavanaugh, and the three Democratic justices.
And, with five Supreme Court votes, Trump’s impoundment plans would be declared unconstitutional.
