Court Ruling Kills Congressional Purse Power

Newsweek

9 hours ago

Whatever happened to judges just reading the law and doing what it says? After a D.C. appellate court last week ignored a duly enacted law and gutted congressional control over spending, the late Justice Antonin "Nino" Scalia must be spinning in his grave.
It was Scalia, after all, who said: "The text is the law, and it is the text that must be observed." Apparently, not in the D.C. Court of Appeals, and our cowardly Congress will rue the day this emasculating ruling remains the law of the land.
The case was all about congressional power. Did President Donald Trump have the power to refuse to spend as mandated by the budget passed by Congress?
President Donald Trump takes a question from a reporter aboard Air Force One on Aug. 15, 2025, in flight.
President Donald Trump takes a question from a reporter aboard Air Force One on Aug. 15, 2025, in flight.Forget whether you like or dislike the things Congress chose to fund. Someday the answer will affect things you like and don't like. The point is that the Constitution says that Congress has the sole power to decide what the country spends on, and with a bit of jiggery-pokery, this court let all the air out of those words.
The jiggery was for the court to ignore how important it is for a court to rule directly on the real issue in front of it whenever possible. Rather than uphold the words of the Constitution, two of the three judges invented an idea that a party who claims the president violated a law passed by Congress can't also claim that the president violated the Constitution. Why? Beats me, but it also beat half of the claims in the lawsuit.
The pokery was even worse. To restrict presidents from grabbing congressional budget power by what's known as "impoundment," Congress passed a law creating strict rules for how a president can ask Congress to cancel spending it mandated. It also authorized the comptroller of the United States to sue presidents to stop them from ignoring the federal budget.
Again, ignoring the words of the law, the two-judge majority held that only the comptroller could sue to stop the president, not people whose lives and fortunes were destroyed by the president's impoundment decisions. Incredibly, they ignored that Congress explicitly said in the law that allowing the comptroller to sue must not be seen as "affecting in any way the claims or defenses of any party to litigation concerning any impoundment." Tell me, how does destroying those claims not affect them in any way?
Forgive them Nino! The net result of the decision is that the Constitution can't be enforced against presidents whenever they might also have violated some statute too, and stopping the president rests on the whim of a single individual—the comptroller.
And perhaps the panel knew something about the current comptroller. This comptroller, Gene Dodaro's term ends in December, and guess who gets to appoint his replacement? That's right, Donald Trump, the man the comptroller would have to sue. Game over?
Maybe not. One of the three judges wrote a blistering dissent. There are 11 judges on this court, and they could decide to rehear the case with everyone participating. They can fix it. If they don't, the Supreme Court should.
And don't expect it to automatically agree with Trump. The justices have actually been more nuanced than people give them credit for. They seem to agree that the Constitution gives the president more power over personnel issues in the executive branch than previous courts. But, when it comes to spending, the Court has repeatedly held that it's sacrosanct—it's controlled by Congress. They even overturned a law that allowed the president a line-item veto. They said it violated the separation of powers.
And this is a good time to remember this pivotal principle. We have three branches of government: the legislative, the executive, and the judicial. They are supposed to be equal, so they can keep each other's ambitions in check—and—you know—avoid a dictatorship.
If the courts want to avoid dictatorship, they need to overturn this ruling. No excuses. No tricks. Just make it clear now that there are limits to presidential power.
Think about what's at stake. Let's say you support President Trump. How will you feel if he is replaced by President Zohran Mamdani, and the man has absolute power? Is that OK with you?
Thomas G. Moukawsher is a former Connecticut complex litigation judge and a former co-chair of the American Bar Association Committee on Employee Benefits. He is the author of the book, The Common Flaw: Needless Complexity in the Courts and 50 Ways to Reduce It.
The views expressed in this article are the writer's own.