Jack Goldsmith
speaker
462 appearances
2 recordings
1 series
first heard Apr 2025
last heard 10 Sep
Jack Goldsmith’s voice in public audio — every appearance, attributed to the second.
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Appearances
There's something called programmatic delays, which give any administration discretion to delay spending because there may be some legal thing you have to consider over here or some new policy over there. A lot of it has been breaching contracts that they claim they have the authority to do under relevant statutes.
So most of what they've been doing, as far as I can tell, is taking advantage of their super planning and knowledge of the appropriation process, taking advantage of weaknesses in that, And kind of what they're doing on the firing side, they're doing on the spending side.
So the argument you were talking about, the empowerment argument, was the one that both President Trump and Russell Vogt, who's the head of the Office of Management and Budget and a hugely influential person in the administration— This is the argument that the president has a constitutional power, regardless of what the statutes say.
And there's a statute called the Impoundment Control Act that purports to tell the president that he has to spend monies with a few exceptions that are hard to meet.
After Nixon, because Nixon tried to assert the constitutional impoundment authority that Trump is trying to assert now. Congress said no and wrote a statute. Vote, and the president has said, we have the Article II power to do this, i.e., we have power under Article II to not spend money if we don't want to. They haven't, as best I can tell, made this argument squarely yet in the litigation.
I might be wrong, but I have not been able to find an instance where they've made this argument squarely. I'm not sure why. I think it's a clear loser of an argument at the Supreme Court. So maybe that's why.
The Impoundment Control Act is clearly constitutional. and the president has a duty to enforce it and comply with it, and he doesn't have any Article II power to not comply with it, there might be an exception. If you look at historical practice and a memo Roberts wrote when he was in the White House in 1985, there might be an exception for military spending.
There's going to be an argument about that.
A war could end, or the president might think this spending demand is just inconsistent with my battlefield needs. There are a whole cluster of arguments, and Throughout history, presidents, there has been a history of impoundment throughout American history. Not clear if it was a constitutional argument or a statutory argument, but they were more aggressive in the defense context.
So the argument for a constitutional impoundment is, I would say, slightly stronger there. But outside of that context, and frankly, I don't think it'll even work there, there's just not really a good argument that, I mean, the appropriation power is given to Congress quite clearly. It's its core power. President has a duty to take care to faithfully execute the law.
The argument is going to be, and they're pushing this, this is the TikTok case, that the discretion to enforce the law is discretion not to enforce the law. And that is an argument that builds on precedents in other administrations, the Obama administration with its marijuana policy and with DAPA and DACA.
And so basically what they did was a exercise enforcement discretion policy. to make the statute be something that it wasn't. Now, typically, the Obama administration had some fancy arguments, and they were closer to the law than what Trump is doing, who doesn't care about that. They said, well, we've got conflicting priorities and their resource constraints.
And those kinds of arguments are kind of legitimate arguments. I did not find what they did there successful.
It never really got there, but yes, the lower courts did not find it persuasive, and conservative heads were exploding over it, of course.
Yeah, and the TikTok, let me just explain this. The government's refusal for no reason other than they don't like it to enforce the TikTok ban is a more extreme version. It's basically saying we have a policy objection, therefore we're not going to enforce.
And a cousin of that would be what the impoundment argument is, is that they would rely on a historical practice that doesn't give them what they want. And they would say that they have enforcement discretion that they can exercise as they want. And that argument, I just really feel very strongly that argument's not going to work.
Like, would they try and find some kind of... I haven't seen... The level at which Vogt and his general counsel have made this argument have not drawn those distinctions. They've been at the level of Article II. And let me just say, the Supreme Court has... you know, been tentative here. They've been sensitive to the idea that in some context, the president has to make enforcement decisions.
There are resource constraints. He can't comply with every directive that Congress gives him. Therefore, there has to be some non-enforcement discretion. And how far that goes, we don't know. But they also said in those cases, if it ever came to just not enforcing the law, period, basically for a policy reason, that would go too far.
Yes, but let me emphasize, so would non-enforcement generally. I mean, the TikTok decision, the TikTok precedent is really... just as if not more dangerous, because it applies across the board. They just said the ban was clear, the Supreme Court upheld it, and the president said, don't enforce it, attorney general, and tell the private companies they don't need to comply.
That is a more broad-based threat if that took hold. So it's happening on many dimensions. Right.
Showing 401–420 of 462 · page 21 of 24
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