‪Sam Bagenstos‬: The delay OMB has ordered specifically contradicts the Impoundment Control Act

[Dennis Donovan]

‪Sam Bagenstos‬ ‪
@sbagen.bsky.social‬
53m
I see some suggestions, in the reporting regarding the OMB impoundment order, that a mere delay in spending appropriated funds is legal. But that's not really true. The delay OMB has ordered specifically contradicts the Impoundment Control Act. A thread.

‪Sam Bagenstos‬ ‪
@sbagen.bsky.social‬
53m
The ICA does not just cover a total refusal to spend. It covers "withholding *or delaying* the obligation or expenditure of budget authority (whether by establishing reserves or otherwise) provided for projects or activities" and ...

‪Sam Bagenstos‬ ‪
@sbagen.bsky.social‬
53m
... "any other type of Executive action or inaction which effectively precludes the obligation or expenditure of budget authority, including authority to obligate by contract in advance of appropriations as specifically authorized by law." 2 U.S.C. 682(1).

‪Sam Bagenstos‬ ‪
@sbagen.bsky.social‬
53m
The ICA calls either of these actions a "deferral of budget authority." And the statute specifically says that "[d]eferrals shall be permissible only" in 3 circumstances: "to provide for contingencies"; for efficiency; or "as specifically provided by law."

‪Sam Bagenstos‬ ‪
@sbagen.bsky.social‬
53m
To underscore the point, the ICA says: "No officer or employee of the United States may defer any budget authority for any other purpose."

‪Sam Bagenstos‬ ‪
@sbagen.bsky.social‬
53m
Note what's not included among the permissible purposes for delaying spending money Congress appropriated -- making sure the spending is consistent with the President's policies.

‪Sam Bagenstos‬ ‪
@sbagen.bsky.social‬
53m
A spending law, passed by Congress and signed by the President, sets the policy per Article I of the Constitution. A new President can't unilaterally override that policy, even temporarily. And that's the point of this provision of the ICA -- to enforce Congress's power of the purse.

‪Sam Bagenstos‬ ‪
@sbagen.bsky.social‬
53m
Yet the OMB memo makes clear that the whole point of the pause is to make sure the spending appropriated by Congress is consistent with "the President's priorities." That's an impermissible reason to delay spending.

‪Sam Bagenstos‬ ‪
@sbagen.bsky.social‬
53m
Note the key language: "Career and political appointees in the Executive Branch have a duty to align Federal spending and action with the will of the American people as expressed through Presidential priorities. Financial assistance should be dedicated to advancing Administration priorities ...."

‪Sam Bagenstos‬ ‪
@sbagen.bsky.social‬
53m
This is all about a new President trying, on his own, to override the policies adopted through the constitutional process by Congress, and signed into law by a previous President. That flouts the congressional power of the purse and violates the ICA, even though it's temporary.

‪Sam Bagenstos‬ ‪
@sbagen.bsky.social‬
53m
Cc:
@bbkogan.bsky.social

Sam Bagenstos
‪@sbagen.bsky.social‬
Adding: If President Trump wants to propose a recission of certain funds under the ICA's procedures, identifying precisely what he wants to rescind and why, he can delay spending for 45 days. See 2 USC 683. But this blunderbuss order doesn't come close to meeting those requirements.
January 28, 2025 at 7:54 AM

https://bsky.app/profile/sbagen.bsky.social/post/3lgsitipl6w24

[kerouac2]

1. Trump mo includes tying things up in court

So I imagine all his executive orders could end up being litigated while still enacted?

So damage can continue while we wait for his rigged court to decide...

[Midnight Writer]

2. Well, someone should sue. Our Courts should get this sorted in about 8 to 10 years.

[obamanut2012]

3. Project 2025 stated ICA would be repealed

[Irish_Dem]

4. I am sure the DOJ and American judiciary will get right on this.

[Happy Hoosier]

5. That's great. Who is going to stop him? NT

[raging moderate]

6. Remember that Twilight Zone episode about a vicious boy with supernatural powers?

Rod Serling envisioned a terrible time when a little psychopathic boy with supernatural powers took charge of the world. The only remedy his family could find for his many misdeeds was to gently ask him, concerning his latest victim, to "send him to the cornfield."

[Happy Hoosier]

7. It feels kind of like that, doesn't it?

All those who could oppose him instead choose to flatter him. "It's GOOD that your shredding the Constitution!"

[Wiz Imp]

8. I encourage everyone to watch this short video

It's Sen. Patty Murray's questioning of OMB Director nominee Russell Vought during his confirmation hearing and is directly relevant to this subject.

[Wiz Imp]

9. Another video from the confirmation hearing. Sen Blumenthal questioning on the Impoundment Control Act