The purse is not the President's to pick

Fox News reports that President Trump has deployed what is called a "pocket rescission" to cancel $810 million in congressionally approved appropriations — funds directed at refugee programs, diversity initiatives, and migrant education. A pocket rescission, as I understand it by inference from the lead, is a mechanism that allows the executive to withhold approved funds without a formal congressional vote to rescind them. If that description is accurate, the constitutional alarm it raises is not mild.

Let me be direct about the principle. In Federalist No. 78, I wrote that the judiciary held neither force nor will — only judgment. By contrast, Congress holds the power of the purse, and I argued in Federalist No. 69 and elsewhere that this power is precisely what distinguishes republican government from executive caprice. An executive who can simply refuse to disburse funds that the legislature has appropriated has, in effect, assumed a legislative veto in reverse. He has not merely declined to propose spending; he has nullified spending already enacted. That is a different thing entirely.

I was, in my day, an advocate of energetic executive power — more so than most of my contemporaries were comfortable with. But energetic does not mean unlimited. The energy I argued for was energy within the constitutional frame: swift execution of the law, forceful administration of policy, broad construction of granted powers. It was never the power to un-enact what Congress had enacted. The moment a President may spend what he likes and withhold what he dislikes, the legislature becomes a theater, and the republic becomes something else.

The specific programs at issue — refugee assistance, diversity initiatives, migrant education — are matters on which reasonable legislators will differ. That is exactly the point. Because they are contested, they were debated, funded through the deliberative process, and signed into law. The remedy for a President who objects to them is a veto at the appropriations stage, a request for formal rescission that Congress votes upon, or an appeal to the electorate. The remedy is not a pocket maneuver that substitutes executive preference for legislative decision.

There is also a practical cost worth naming. Public credit — and I spent my career building it — rests on the predictability of the sovereign's commitments. When market participants and foreign governments observe an executive who treats congressional appropriations as optional, they do not conclude that the government is efficient; they conclude that its word is conditional. A government whose word is conditional borrows at higher cost, forever. The $810 million in question is not, in the scale of a $36 trillion debt, a large sum — but the precedent is not small at all.

My recommendation is plain: Congress should assert itself. It should pass legislation clarifying the limits of rescission authority, and if it has not already done so, the courts should be asked to say whether a pocket maneuver that permanently cancels appropriated funds is consistent with the Impoundment Control Act and with the Constitution itself. The question is not whether these particular programs are wise. The question is whether the power of the purse still belongs to the branch that the Constitution assigned it to. On that question, I will not concede a point I have not first lost — and I do not believe I am wrong.