Jack Goldsmith

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.

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.

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.

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.

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.

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.

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.

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 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.

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.

It never really got there, but yes, the lower courts did not find it persuasive, and conservative heads were exploding over it, of course.