Donald Trump enters his second term with promises to cut a wide range of government services and a radical plan to do it. Instead of relying on his party to control Congress to cut the budget, Trump and his advisers intend to test an obscure legal theory that presidents have the power to withhold funding for programs they don’t like.
“We can just strangle the money,” Trump said 2023 campaign video. “For 200 years under our system of government, it was undisputed that the president had the constitutional power to stop unnecessary spending.”
His plan, known as “sequestration,” threatens to spark a major fight over presidential control over the budget. The Constitution gives Congress the sole authority to allocate the federal budget, while the role of the executive branch is to allocate money efficiently. But Trump and his advisers argue that the president can unilaterally ignore congressional spending decisions and “seize” funds if he opposes them or deems them wasteful.
Trump’s budget plans are part of his administration’s broader plan to consolidate as much power as possible in the executive branch. This month, he forced the Senate to go into recess so he could appoint his cabinet without any oversight. (So far, Republicans who control the House have not agreed to do so.) His key advisers have laid out plans to bring independent agencies such as the Justice Department under political control.
If Trump were given the authority to kill programs approved by Congress, it would almost certainly set off a fight in the federal courts and Congress and, experts say, could significantly change the basis of Congress’s power.
“It’s an attempt to take all the power out of the purse strings of Congress, and it’s just unconstitutional,” said Eloise Pasachoff, a Georgetown law professor who has written about the federal budget and appropriations process. “The president does not have the authority to go into the budget piece by piece and pull out what he doesn’t like.”
Trump’s claim of confiscating the money flies in the face of a Nixon-era law that bars presidents from blocking spending over policy disagreements, as well as a series of federal court rulings that prevent presidents from refusing to spend money unless Congress gives them flexibility.
In an article published on Wednesdaytech billionaire Elon Musk and former Republican presidential candidate Vivek Ramaswamy, who oversee the newly created nonprofit Department for Government Efficiency, have written that they plan to cut federal spending and lay off public employees. Some of their efforts could offer Trump his first Supreme Court review of the 1974 Congressional Oversight and Seizure Act, which requires the president to spend money approved by Congress. The law allows for exceptions, such as when the executive branch can achieve congressional goals by spending less, but not as a means for the president to kill programs he opposes.
Trump and his aides telegraphed about his plans for a hostile takeover of the budget process for several months. Trump vetoed the 1974 law as “not a very good thing” in his campaign video and said: “The return of the seizure will give us an important tool with which to destroy the Deep State.”
Musk and Ramaswamy took up that mantle, writing, “We think the current Supreme Court is likely to side with him on this issue.”
The once-obscure debate about forfeiture has become fashionable in MAGA circles thanks to veterans of Trump’s first administration who remain close allies. Russell Vaught, Trump’s former budget director, and Mark Paoletta, who served under Vaught as general counsel at the Office of Management and Budget, worked to popularize the idea from Vought’s Trump-founded think tank, the Center for American Renewal.
on friday Trump announced that he had chosen Vought lead OMB again. “Russ knows exactly how to dismantle the Deep State and end the armed government, and he will help us bring self-government back to the people,” Trump said in a statement.
Vaught was also the chief architect of the controversial Project 2025. In private remarks to the MAGA luminaries meeting revealed by ProPublicaVaught boasted that he was assembling a “shadow” office of legal counsel so that Trump would be armed on day one with the legal rationale to implement his agenda.
“I don’t want President Trump to waste time arguing in the Oval Office about whether something is legal, enforceable, or moral,” Vaught said.
Spokesmen for Trump and Vought did not respond to requests for comment.
The prospect of Trump gaining broad control over federal spending is not just about shrinking the size of the federal government, a longtime conservative goal. It also fuels new fears about his vows of revenge.
Such a power grab led to his first impeachment. During his first term, Trump withheld nearly $400 million in military aid to Ukraine, putting pressure on President Volodymyr Zelensky to launch a corruption investigation into Joe Biden and his family. The US Government Accountability Office later ruled on his actions violated the Forfeiture Control Act.
Pashoff predicted that if it were profitable, the incoming Trump administration would try to achieve the sequestration goal without starting such a high-profile fight.
Trump has been testing incremental ways beyond the armed conflict in Ukraine to cut off federal funding as a means of punishing his perceived enemies, said Bobby Kogan, a former OMB adviser under Biden and senior director of federal budget policy at the left-leaning think tank American Progress. After devastating wildfires in California and Washington, Trump delayed or refused to sign disaster declarations that would have unlocked federal aid because no state voted for him. He targeted so-called sanctuary cities, making federal grants conditional on the willingness of local law enforcement to cooperate with mass deportation efforts. The Biden administration eventually reversed the policy.
Trump and his aides claim that the forfeiture of presidential elections dates back to Thomas Jefferson.
Most of the historical examples involve the military and cases where Congress has expressly authorized presidents to exercise discretion, said Zachary Price, a professor at the University of California, San Francisco College of Law. Jefferson, for example, decided not to spend the money appropriated by Congress for gunboats – a decision of the law that appropriated money for “a number not exceeding fifteen gunboats” using “a sum not exceeding fifty thousand dollars” allowed him to do .
President Richard Nixon took confiscation to a new extreme, using the concept to siphon billions of dollars from programs he simply opposed, such as highway improvements, water treatment, drug rehabilitation, and disaster relief for farmers. He faced stunning pushback from both Congress and the courts. More than a half-dozen federal judges and the Supreme Court ultimately ruled that the appropriations bills under consideration did not give Nixon the ability to cut individual programs.
Vaught and his allies argue that the limits imposed by Congress in 1974 are unconstitutional, saying that the clause in the Constitution that requires the president to “faithfully execute” the law also implies his power to prohibit its execution. (Trump likes to describe Article II, where this clause is located, as giving him “the right to do whatever I want as president.”)
The Supreme Court has never directly decided whether an arrest is constitutional. But in the case of 1838 it added offense to this reasoning, Kendall v. United Stateson paying off the federal debt.
“To claim that the president’s duty to ensure the strict implementation of laws includes the right to prohibit their implementation is a new construction of the constitution and is completely unacceptable,” the judges wrote.
During his crackdown, Nixon’s Justice Department argued much the same.
“Regarding the assumption that the president has the constitutional authority to refuse to spend appropriated funds,” warned a 1969 legal memo. William Rehnquist, head of the Office of General Counsel, whom Nixon later appointed to the Supreme Court, “we must conclude that the existence of such a broad power is not supported by reason or precedent.”
