Trump’s promise to use “seizure” sparks conflict with the Supreme Court

The Constitution grants Congress sole authority to appropriate a federal budget, but the sequestration theory essentially states that any president has the unilateral power to ignore Congress’s funding laws and withhold or “seize” funds appropriated for programs, agencies, or Departments that the White House deems unsuitable.

The only catch? During the Nixon administration, Congress passed a law requiring the president to spend congressionally appropriated funds.

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The law caused some headaches for President Joe Biden in the fall of 2023 after he restarted construction of a southern border wall. The Biden White House claimed at the time that after attempting to claw back funds appropriated under the first Trump administration, the president would be forced by the Congressional Budget and Impoundment Control Act of 1974 to restart border wall construction.

The Government Accountability Office found that Trump violated the Impoundment Control Act in 2019 when he tried to withhold security funds from Ukraine, which was the focus of Democrats’ first impeachment trial of the 45th president.

Trump’s team argues that the confiscation law is unconstitutional, claiming that Article II of the Constitution requires the president to “faithfully execute” the law, including an implicit obligation not to enforce unconstitutional laws. Trump’s advisers claim that presidents since Thomas Jefferson have confiscated funds when necessary.

Trump himself claims that Article II gives him “the right to do whatever I want as president” and that confiscation is a “critical tool in eliminating the deep state.”

Russ Vought, Trump’s nominee to lead the White House Office of Management and Budget, has explicitly advocated for sequestration in recent months.

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“I believe that the loss of the power of confiscation — enjoyed by presidents for 200 years — was the original sin, depriving a branch of the ability to control its spending,” he said in an interview with Fox Business earlier this year. “We’re going to need that back.”

Vought, who also served as OMB director in the second half of Trump’s first term, has worked to publicize the sequestration among conservative politicians throughout the Biden administration.

ProPublica Unearthed audio recordings of speeches Vought gave in 2023 and 2024 at events at the Center for Renewing America, the pro-Trump think tank he led during the Biden years, where he used the executive branch’s tools to combat a “Marxist takeover “described the federal government and reduce the federal bureaucracy.

“I don’t want President Trump to have to waste a moment arguing in the Oval Office about whether something is legal, doable or moral,” he said.

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Trump praised Vought in a statement announcing his nomination to the OMB.

“Russ knows exactly how to dismantle the deep state and end gun government, and he will help us return self-government to the people,” the president-elect wrote.

Trump also tapped Elon Musk and Vivek Ramaswamy to lead the Department of Government Efficiency, a new initiative to reduce federal waste. The pair signaled a looming Supreme Court battle over sweeping cuts.

“With a decisive electoral mandate and a 6-3 conservative majority on the Supreme Court, DOGE has a historic opportunity for structural cuts in the federal government. “We are prepared for the onslaught of entrenched interests in Washington,” Musk and Ramaswamy wrote in a recent editorial for The Washington Post Wall Street Journal. “We assume that we will prevail.”

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Any move by Trump to lay off large swaths of the federal workforce at DOGE’s suggestion would trigger a legal battle that ends up in the Supreme Court.

“To the extent that you could try to implement it unilaterally, you would need some kind of authority to confiscate it – just not do what Congress said you should do,” said Andrew Rudalevige, a professor at the Bowdoin College, which deals specifically with powers of the presidency. “It will lead pretty directly to a constitutional conflict, but that is, in my opinion, the only way to unilaterally impose the president’s wishes in this area.”

Trump advisers believe the Supreme Court would side with the government in a sequestration decision, a view shared by South Texas College of Law professor Josh Blackman.

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“The most relevant data point is that Chief Justice John Roberts served in the Reagan White House,” he told NPR. “I think he would find the arguments that were so influential in his earlier career very sympathetic, so I think Trump might actually have a chance here.”