These programs have to be undone the same way they were created.

O n Thursday, a second federal court issued a preliminary injunction blocking the Trump administration from pausing federal spending. Judge John J. McConnell Jr. of the federal district court in Rhode Island issued his ruling Thursday in a 45-page opinion. He joins Judge Loren L. AliKhan, of the federal district court in Washington, D.C., who issued a similar ruling in a 39-page opinion last week.

Judges McConnell and AliKhan were appointed by Presidents Obama and Biden, respectively. How convenient it would be if we could say: These are progressive Democrats, they were put on the planet to rule against President Trump no matter what he does, and these rulings will get fixed on appeal. There’s no doubt, moreover, that the two judges derived considerable satisfaction from ruling against their party’s archnemesis; there is much in the rulings that conservatives will find grating.

Alas, when it comes to freezing domestic spending, the president’s problem isn’t the partisan affiliation of the jurists; it’s the Constitution’s bedrock separation of powers principle.

Congress decides by statute what the government will spend taxpayer money on. The president’s job is to carry out those decisions — to execute the laws faithfully. The president lacks impoundment power of the extravagant breadth the administration likes to imagine.

Back in 1985, a young legal counselor to President Reagan by the name of John G. Roberts Jr. was asked to provide information to then–White House Counsel Fred Fielding about presidential impoundment authority. In a cover memo, Roberts advised that the president steer clear of citing “inherent constitutional impoundment authority” as “a viable budget planning operation.” Explaining that “in normal situations” he thought it “clear” that the president had no such authority, the now–Chief Justice elaborated:

Our institutional vigilance with respect to the constitutional prerogatives of the presidency requires appropriate deference to the constitutional prerogatives of the other branches, and no area seems more clearly the province of Congress than the power of the purse.

This advice not to put much stock in impoundment authority was prudent. It still is. Deep down, I believe the Trump administration knows its argument for robust power in this context is weak. When called on it in ongoing litigation, rather than argue in principle that the president has some legal authority to refrain from spending the funds obligated, the administration either reopens the funding spigot or temporizes that it is simply studying the expenditures rather than canceling them.

Here, as in other contexts during the first weeks of Trump’s second presidency, we can see that political grandstanding at the White House is hurting the Justice Department’s credibility in court.

Upon taking office, the president issued an executive order directing federal agencies to pause and review funding to ensure that it comports with his policy priorities. As my friend John Yoo has compellingly written in our pages, Trump may very well have a legal basis to do that when foreign affairs are at issue. The Constitution gives the president supremacy in that realm, so he may even have authority to suspend spending that Congress has authorized. (For what it’s worth, I believe he does.)

By contrast, with respect to domestic regulation and spending, which accounts for the vast majority of federal expenditures, Congress has supremacy — meaning, as Professor Yoo elaborates, the president’s impoundment authority is limited. The president has no power, for example, to “terminate the Green New Deal” (as he purported to do in a Day One executive order) to the extent that Congress has codified aspects of the Green New Deal in spending statutes.

In the court cases, a stark disconnect has emerged. At high-profile political events, Trump announces his executive orders as if he is wholly nullifying Biden policies. But some of those policies have been codified in law — particularly in 2021–22, when Democrats controlled both houses of Congress.

In reality, the president’s nullification authority is modest. That’s why Trump DOJ lawyers are tap-dancing when asked tough questions. As a result, judges are wondering whether, based on his public pronouncements, the president is (a) just characteristically overhyping his actions for his MAGA base’s consumption, or (b) truly unaware of the limits on his power. These concerns intensify when, as happened in the case before Judge McConnell, the DOJ advised the court that the spending freeze guidance, issued by the Office of Management and Budget (OMB) to implement Trump’s above-linked executive order, had been rescinded . . . only to have White House Press Secretary Karoline Leavitt then announce that the funding freeze had not been rescinded and was still in full force. (And things got worse for the Trump DOJ when the judge realized he was being had: The administration had merely withdrawn the OMB memo, not the funding freeze that triggered the memo, in an effort to portray a very live controversy as if it were moot.)

In terms of nullifying policy, a president may undo previously issued executive orders and agency guidance memos — although even with respect to that, the Supreme Court (in its 2020 Department of Homeland Security v. Regents of the University of California ruling) has required compliance with the Administrative Procedure Act. A president, however, has no authority to negate statutes by executive order. If Trump wants spending to conform to his policy priorities, he can veto future budget bills that don’t do so (assuming that he is willing to bear the political damage of any resulting government shutdowns, and that he maintains enough support in Congress to prevent veto overrides). But if we’re talking about grants and aid that Congress has statutorily provided to states, the president has no power to “veto” that spending just because he disagrees with it.

I’m not saying presidents have no impoundment power at all — see Yoo, supra. A president may refuse to spend funds if he can establish that such spending would violate the law. (If, say, Congress authorized funding for an entity that turned out to be a front for a terrorist organization, the president would have a good argument for withholding the funds on the rationale that it’s illegal to provide material support for terrorism.) A president may also pause spending for a reasonable period of time to ensure its lawfulness, provided that doing so does not countermand Congress’s directions about when the funds should be expended — although, as we’re seeing in the ongoing cases, (a) if the president issues blanket spending freezes that are not designed in good faith to scrutinize specific, suspect funding; and (b) if such freezes cause harm because they disturb ongoing arrangements that are dependent on funding Congress has approved; then (c) courts are likely to find that the freezes are arbitrary and capricious, in violation of the Administrative Procedure Act. And it is possible that the president could refuse to spend funds if he can demonstrate that he can accomplish the tasks Congress has assigned for less money (assuming that Congress has not directed specific payments to specific beneficiaries, and that any savings go back to the treasury — they may not be diverted to presidential objectives for which Congress has not authorized funding).

Beyond those narrow exceptions, the president cannot legitimately nullify spending Congress has enacted into law. When Congress writes a domestic spending law, it tends not to add the proviso “as long as expenditures are consistent with the president’s policy priorities.” That would get the Constitution exactly backward. The president takes an oath to carry out the laws, not rewrite them; and those laws predominantly reflect Congress’s priorities. Yes, the president is a significant player in the legislative process, but the executive’s core constitutional function is to execute, not prescribe. We are in a counter-constitutional era of government-by-executive order, in which the new arrivals in the Oval Office reverse policies the last incumbent from the other party decreed. It’s a whipsaw effect because, in our governing framework, policy must be codified in statutory law if it is to be stable.

The Trump administration, especially in connection with its DOGE initiative, invokes “waste, fraud, and abuse” as if the phrase were a talisman — “Abra cadabra, that inane funding is now paused and ripe for cancelation.” That’s not how it works. If it were, the policies we conservatives favor in statutory law — e.g., strong immigration laws — would be erased the minute Democrats got back in power. (And yes, I realize Democratic presidents refuse to enforce our immigration laws, but that’s not the same as erasing them, and as we’ve just seen, such derelictions of duty tend to be punished at election time.)

The important word in “waste, fraud, and abuse” is fraud, because fraud is against the law. As we’ve observed, if there is something illegal about spending, the president has a good case for withholding it. What about waste and abuse? Well, the president can fairly invoke those terms if Congress has obligated too much spending for a task that can be accomplished for much less, or for a task that is no longer operative (if, say, there were suddenly a ceasefire in Ukraine but military aid had been allocated on the assumption of a continuing war).

All that said, though, waste is not a valid policy objection. The Green New Deal is not nullifiable waste just because Trump objects to it and — rightly — believes it’s wasteful. Many of us conservatives object to all manner of industrial policy as wasteful: It often promotes snake oil, picks winners and losers, and misallocates funds. Those are very good reasons to strip it out of the next budget (or try to get Congress to rescind it now). Nevertheless, “I don’t agree with these policy objectives” is not a lawful reason for the president to refuse to spend public money that Congress has obligated in lawfully enacted statutes.

Besides the Green New Deal, Trump’s executive orders target such other Biden-era monstrosities as the Inflation Reduction Act and the Infrastructure Improvement and Jobs Act. I take a backseat to no one when it comes to disdain for this legislation. But that’s why elections are important. If the duly elected Congress and president enact such ruinous provisions into law, the next president doesn’t get to nullify them just because he disagrees with them. The new president is not obliged to champion bad policy, but he has no power to negate existing law; he must enforce it.

There are no executive shortcuts for solving our gargantuan spending and debt problems. They have to be undone the same way they were created — by legislation. As Yuval Levin sagely observed in a Corner post this week, President Trump and Elon Musk’s DOGE operation would make more progress trying to cut spending within the existing statutory procedure than by an overly ambitious take on impoundment that the Supreme Court is no more likely to endorse than John Roberts was 40 years ago.