Congress appropriates funds, the executive branch ensures those funds are spent and spent wisely. That is how it works. It is not, however, how it is working right now. The Trump Administration has, in recent months, repeatedly and often successfully frozen the funds that Congress assigned to certain departments and agencies. Jobs have been lost, research shelved, life-saving care ended, budgets and plans thrown into disarray.
So why and how has this happened? Why were we funding education, science, medicine and foreign aid in the first place? Our guide to this tumult is Samuel Bagenstos, professor of law at the University of Michigan and former Chief Counsel at both the Office of Management and Budget and the Department of Health and Human Services.
Transcript
Hannah McCarthy: [00:00:00] Nick.
Nick Capodice: [00:00:01] Yes, Hannah.
Hannah McCarthy: [00:00:02] Don't it always seem to go that you don't know what you got till it's gone?
Nick Capodice: [00:00:08] Are we doing an episode about paving [00:00:10] the Rose Garden?
Hannah McCarthy: [00:00:11] We are not.
Nick Capodice: [00:00:11] I'm just checking. Do you think Joni Mitchell would let us play Big Yellow Taxi on the show?
Hannah McCarthy: [00:00:17] Tell you what. I'll have my people get in touch with her. People? [00:00:20]
Nick Capodice: [00:00:20] Who are your people?
Hannah McCarthy: [00:00:22] Me? I'm my people.
Nick Capodice: [00:00:24] Yeah.
Hannah McCarthy: [00:00:27] But the reason I quote Miss Mitchell here is because her [00:00:30] words are a truism that has applied a whole lot lately. Things have gone away. Things that make a lot of people realize just what we had. Things [00:00:40] that made me ask. Wait a minute. Why did we have that?
Nick Capodice: [00:00:45] Why do we have what exactly?
Archival: [00:00:47] Thousands of staff and contractors were fired. While [00:00:50] humanitarian aid to some of the world's most vulnerable populations was stopped.
Archival: [00:00:54] At the end of the day. What really impacts are the kids and the families. They're the ones that are depending on childcare.
Archival: [00:00:59] Not [00:01:00] just in Gaza, but around the world. A series of decisions that could have profound consequences on the well-being of so many.
Archival: [00:01:06] UCLA is losing hundreds of millions of dollars in federal research [00:01:10] funding.
Archival: [00:01:10] The cuts come from the National Science Foundation, the National Institute of Health, a whole host of federal grants.
Archival: [00:01:16] Back now, with outrage this afternoon, after the Trump administration's decision [00:01:20] to freeze billions of dollars in education grants.
Archival: [00:01:22] Congress approved these investments. They are not optional. They are the law.
Hannah McCarthy: [00:01:33] This [00:01:30] is Civics 101. I'm Hannah McCarthy.
Nick Capodice: [00:01:35] I'm Nick Capodice.
Hannah McCarthy: [00:01:36] And today we're talking about federal funds or the lack [00:01:40] thereof. Why does the federal government fund all sorts of things? And what happens when it doesn't?
Nick Capodice: [00:01:47] Huh?
Hannah McCarthy: [00:01:48] What?
Nick Capodice: [00:01:49] Why does the government [00:01:50] fund things? Is a strange question.
Hannah McCarthy: [00:01:53] Because you've taken it for granted your whole life.
Nick Capodice: [00:01:55] Yes.
Hannah McCarthy: [00:01:56] Yeah. Okay, so to better understand this, I spoke with someone [00:02:00] who really, really understands this world. Someone who has worked both at the office that helps to manage these funds, and one of the agencies that receives them. Meet Samuel [00:02:10] Bagenstos.
Samuel Bagenstos: [00:02:11] You can call me a professor at the University of Michigan, or a professor of law and public policy at the University of Michigan, whichever you prefer.
Hannah McCarthy: [00:02:19] Samuel is that. [00:02:20] And before he was that he was the general counsel for the Department of Health and Human Services, and before that, the general counsel for the Office of Management and Budget.
Nick Capodice: [00:02:29] General [00:02:30] counsel, as in the in office lawyer.
Hannah McCarthy: [00:02:32] Yeah. The person who gives legal advice and manages legal services. Now, the Office of Management and Budget is [00:02:40] what Nick.
Nick Capodice: [00:02:41] All right, the OMB. I am pretty sure it's the largest office in the executive branch. Yep. And the OMB essentially helps the president get [00:02:50] done what they want to get done. So it prepares the budget proposal. It oversees executive branch agencies. It helps with the president's policy and agenda. [00:03:00]
Hannah McCarthy: [00:03:00] Correct. And the Department of Health and Human Services, super broadly speaking, is there to implement programs that support public health. So Samuel worked for two big [00:03:10] and very important pieces of the executive branch. I mean, it's all important, but you get the picture.
Nick Capodice: [00:03:16] All right. Now, I know we're going to talk about things being funded or not funded. [00:03:20] But before we get into the details, Hannah, can you give me a very basic primer here? How does the money get from A to Z?
Hannah McCarthy: [00:03:28] All right, let's follow it. We've [00:03:30] talked about the budget quite a bit in various episodes, but the basics are this. There are two kinds of spending [00:03:40] discretionary and mandatory. Mandatory is set by a formula. It's stuff like Medicare and Social Security. I am not going to get into the current administration's approach to these [00:03:50] what we call entitlements. That is for another day. Discretionary spending is the stuff that Congress has to make decisions about.
Nick Capodice: [00:03:58] So stuff like education, [00:04:00] national defense, agriculture. All the department stuff.
Hannah McCarthy: [00:04:03] Bingo. It goes like this. And I am going to skip a few steps. Okay. Because I do want to get back to Samuel. [00:04:10]
Nick Capodice: [00:04:10] Understood.
Hannah McCarthy: [00:04:11] All right. The president drafts a budget proposal with the help of the OMB. A lot goes into that.
Nick Capodice: [00:04:18] Gotcha. But it's basically like [00:04:20] this is how the president wants to achieve their agenda and policies, basically.
Hannah McCarthy: [00:04:25] And the budget also likely has things that departments need, [00:04:30] the requests that they have made. And that proposal goes to Congress.
Nick Capodice: [00:04:34] Because Congress has the power of the purse.
Hannah McCarthy: [00:04:37] Chet Ching. And Congress doesn't have to do exactly [00:04:40] what the president suggests, and they often make changes. Okay. So Congress splits up into committees and drafts appropriations bills for the various [00:04:50] departments.
Nick Capodice: [00:04:51] The money they get and how they can spend.
Hannah McCarthy: [00:04:54] It, and for what period of time. Very broad strokes. Okay, then [00:05:00] Congress passes an omnibus bill with all of the spending laid out. Or they pass multiple minibus bills where they smush several departments together.
Nick Capodice: [00:05:09] Minibus? [00:05:10]
Hannah McCarthy: [00:05:11] Yeah. Cute word. Extremely serious process. In August, for example, after the Senate failed to agree on an omnibus, they passed three minibuses. The [00:05:20] House will have to decide on those when they get back from their recess.
Nick Capodice: [00:05:23] I passed three minibuses on my way to work this morning. And to be clear here, Congress is not constitutionally mandated [00:05:30] to pass a budget.
Hannah McCarthy: [00:05:31] They are not, which is why we get stuff like continuing resolutions and short term spending bills and government shutdowns. Right. Okay. So let's [00:05:40] say we have a budget. That tells departments how much for what and for how long. It [00:05:50] also allows for some wiggle room, like you aren't likely to read that Congress is legally mandating that HHS has to spend $10 million on a specific ply of toilet paper. Unless [00:06:00] there is already a law that requires that.
Nick Capodice: [00:06:02] Is that it?
Hannah McCarthy: [00:06:03] That is so not it. But that is it for now. Now, Nick, why [00:06:10] do we fund things?
Nick Capodice: [00:06:13] Because things cost money.
Hannah McCarthy: [00:06:16] Round and round we go. The government used to fund a [00:06:20] whole lot less stuff like defense, the mail. Big, big infrastructure projects. Now, at a point, the government decided it should fund more stuff [00:06:30] like research. Let's get back to Samuel.
Samuel Bagenstos: [00:06:33] You know, so one of the major ways in which the federal government gives money to states and [00:06:40] other organizations is to support basic scientific research. That is a function that really started during World War two, when [00:06:50] we found as a country, we needed to make dramatic scientific developments on things like medical care. You know how to manufacture [00:07:00] penicillin in a mass way. On things like developing radar, um, for our defense effort, the Manhattan Project. Obviously a big part of this. And one [00:07:10] of the things that our country learned was we as a market system, will under-produce basic scientific research. We need to [00:07:20] have a public function that's going to be financing basic scientific research. The market's really good at financing research. You know, in the last little bit [00:07:30] when when it's very close to market, when, you know, when a profit making enterprise knows that it can earn money off of it. But the basic research [00:07:40] that all of that subsequent stuff relies on won't get produced unless the government kicks in.
Nick Capodice: [00:07:46] Huh? So to get the big developments that help your country [00:07:50] establish itself as a major power, you got to get things off the ground.
Hannah McCarthy: [00:07:55] Yeah, and not just scientific research. A lot goes into building [00:08:00] the wealthiest, most powerful nation on planet Earth.
Samuel Bagenstos: [00:08:04] You know, there's also financing of education programs [00:08:10] again after World War two. People came back on the GI Bill. We had this explosion of people attending college, and the GI Bill enabled [00:08:20] folks who had served in World War Two to be able to afford college for the first time. That became an expectation that people would be able to go to college. [00:08:30] And so we started beginning in 1965, to have very significant federal aid for students who were going to college for tuition [00:08:40] assistance. Um, similarly, uh, we have significant federal aid to elementary and secondary education. And one of the lessons [00:08:50] there was that, you know, education is something that's in all of our interests. It's in all of our interests to have an educated populace.
Hannah McCarthy: [00:08:59] So if you're thinking, [00:09:00] you know, why not just leave this kind of education funding up to the states? Samuel says it's about taxes. How do you pay for education taxes? How [00:09:10] do you get more money for education? You raise taxes, but states don't want to do that. If they raise taxes, the worry is that residents and [00:09:20] industry will flee to another state. It turns into what Samuel calls a race to the bottom. So instead, the federal government collects taxes across the [00:09:30] country and distributes that money to the states. It allows states to keep local control while keeping their education systems strong.
Archival: [00:09:39] New at six. More [00:09:40] than 20 states sued the Trump administration today over billions of dollars in frozen education funding.
Nick Capodice: [00:09:46] Hannah, this reminds me a little bit of the shift from the Articles of Confederation [00:09:50] to the Constitution we have today. Under the articles, Because government was small, kind of passive. The states were doing their own thing, including not paying [00:10:00] taxes. And it was a big, big problem. So we gave the government a much bigger role.
Hannah McCarthy: [00:10:05] Yeah. Something I had never considered before was the fact that our federalist system, [00:10:10] if left only to the semi-sovereign states, would not be doing big, amazing things, or maybe even small, basic and necessary things. [00:10:20]
Samuel Bagenstos: [00:10:20] It's a story that's a little bit different in every area, but the basic idea is these are things that we can't expect the market or [00:10:30] the federalist system to do on its own. So we need the federal government to come in and provide financing for stuff that we really rely on as a society. The [00:10:40] federal government has taken a great deal of responsibility, you know, since 1965 for financing schools, paying for assistance for schools [00:10:50] where there are a lot of people who experience social disadvantages Inches increasing the payments and programs for students who have disabilities, which [00:11:00] can impose significant costs on particular school districts. And we don't want to create an incentive for school districts to drive disabled kids [00:11:10] out of the schools. And so what we want to do is make sure that they are adequately paid for the special and important services that people with disabilities may need in school [00:11:20] to benefit from education.
Archival: [00:11:21] You know, Jeremy, educators and families are concerned about the impact dismantling the department could have on all students, but especially on students who are in special [00:11:30] education classes.
Samuel Bagenstos: [00:11:31] And so we've seen a series of these programs that have developed through the years. And yeah, I mean, I think, you know, if you were to do [00:11:40] a graph, you would find the federal contribution education going up very significantly.
Nick Capodice: [00:11:45] Yeah. Isn't the Department of Education relatively new?
Samuel Bagenstos: [00:11:48] A hallmark moment [00:11:50] here was in 1979 when Congress created, under President Carter a Department of Education for the first time, which was a big deal because education [00:12:00] had been, you know, primarily a state function. It's still initially a state function. It's the states that choose curricula. It's the states that run [00:12:10] schools. But increasingly, financing education has been a federal function.
Archival: [00:12:14] Officials say Connecticut has lost $53 million that are already built [00:12:20] into school budgets.
Archival: [00:12:21] Billions of dollars for California schools held back by the Trump administration.
Archival: [00:12:25] A federal funding freeze quietly handed down from Washington, D.C., put the brakes on billions [00:12:30] of dollars meant for after school programs. Teacher training.
Archival: [00:12:33] $26 million in funding for Vermont schools is not currently available.
Archival: [00:12:39] Billion dollars [00:12:40] in grant funding for schools all across the nation is now under review.
Archival: [00:12:43] Might be saying, hey, we're going to freeze these funds and we'll see if we release them in October. We start school in less than a month [00:12:50] and our fiscal year has already started.
Hannah McCarthy: [00:12:57] So if you look at, for example, the ways the federal government [00:13:00] funds scientific research and public health initiatives and programs and education, Samuel explained, you can see how it helped to skyrocket the United States to its place [00:13:10] in the world.
Samuel Bagenstos: [00:13:11] All of the pharmaceutical advances that you've seen are initially derived from financing from the federal [00:13:20] government, from the NIH, from the from the National Science Foundation and otherwise. And that is super important for people's health. I mean, we have saved thousands and [00:13:30] thousands and thousands of lives and made even more lives much better because of those developments. We've also stimulated the economy in significant ways in [00:13:40] the areas where there are significant research facilities, including places where you'd had other parts of the economy sort of fall behind. I mean, think about a place like Pittsburgh [00:13:50] that was really revived because of its connection to research and medicine and education.
Archival: [00:13:57] The threat of National Institutes of Health funding cuts is [00:14:00] already having a ripple effect at the University of Pittsburgh. Union members met with local lawmakers to discuss how the cuts could impact jobs. Progress on critical medical [00:14:10] research and the local economy.
Samuel Bagenstos: [00:14:12] Also, I think you see that when the federal government has supported the research enterprise [00:14:20] and the academic enterprise more generally, that has been a beacon to the world. I mean, so we have seen people all over the world want to come to the United States, [00:14:30] want to pay full freight for education in the United States institutions.
Archival: [00:14:35] In the wake of President Trump's efforts to limit the number of international students at universities here in the U.S., [00:14:40] some foreign students are looking outside the U.S. to study.
Samuel Bagenstos: [00:14:44] So, yeah, I mean, I think this has redounded to our benefit. It's redounded to the benefit of individual human beings, [00:14:50] of humanity at large and of the United States.
Nick Capodice: [00:14:56] Okay. So can we talk a little bit about what's going on today, [00:15:00] Hannah, right now, because there's a lot of talk and a lot of action that is about not funding a lot of what Samuel has laid out.
Hannah McCarthy: [00:15:07] We sure can talk about it after a quick break. [00:15:10]
Nick Capodice: [00:15:10] But before that break, a reminder that Hannah and I wrote a book called A User's Guide to Democracy How America Works. And though, yes, things in America are changing, there [00:15:20] is still a whole legal system under our feet that is important to understand. So you can know when someone starts to, let's say, hop over and around what is under our feet. So [00:15:30] keep our user's guide in your backpack, at your kitchen table, in your car, in every room of your house. Give it away to friends and family. Spread the good word. You can get it wherever you get your books.
Hannah McCarthy: [00:15:39] We have [00:15:40] an audiobook too, because of course we do.
Nick Capodice: [00:15:42] Of course we do. It was so fun to make.
Nick Capodice: [00:15:44] That it was.
Hannah McCarthy: [00:15:55] We're [00:15:50] back. We're talking about federal funding, how it happens, where it goes, [00:16:00] what it's done for us and what's happening to it now. Before the break, Nick, you asked me about today. Today being a day when we are funding [00:16:10] less.
Nick Capodice: [00:16:11] Yeah. I feel like you can't swing a cat without hitting a funding freeze. Hannah and I don't even really know what a funding freeze means. Except for that the money stops.
Hannah McCarthy: [00:16:19] Yes. [00:16:20] And we do not advocate for swinging cats around here. So we talked about how Congress writes the budget. It says departments and agencies get money. But there is a very, very [00:16:30] important and very powerful middleman between that money and those establishments. Some say the most powerful thing in [00:16:40] the executive branch, the president kind of I'm talking about once again, the. Oh, I'm.
Samuel Bagenstos: [00:16:51] Before [00:16:50] I worked at the Department of Health and Human Services, I was at the Office of Management and Budget as the general counsel for a year and a half, [00:17:00] and so I worked on this a lot, and it is a really arcane process and a complex process that people don't know a lot about, but it's really important. So when Congress [00:17:10] passes a law saying that here's an amount of money we're spending, that money goes into the Treasury, but it's not available to be spent by an agency, [00:17:20] usually, unless the Office of Management and Budget does something called an apportionment apportions the money to the agency in [00:17:30] apportionment.
Nick Capodice: [00:17:31] So this is not an appropriation?
Hannah McCarthy: [00:17:34] No, the appropriation has already happened. Congress did that.
Nick Capodice: [00:17:38] Okay. So Congress says, for example, [00:17:40] the Department of Health and Human Services is getting X amount of dollars and they have to use it for Y things in Z period of time. But the money doesn't go directly [00:17:50] to the department.
Hannah McCarthy: [00:17:52] No, it's. It's like you're long lost. Great uncle left you $1 million, and that is your million dollars. But there's some money manager who isn't [00:18:00] going to give it to you unless you spend it wisely. So you don't spoil the family name.
Samuel Bagenstos: [00:18:04] So basically just issues a directive saying, okay, now you can spend this money and [00:18:10] OMB is supposed to do that in a way to make sure that an agency is spending the money prudently, doesn't overspend in the first quarter, and then have to go [00:18:20] back to Congress after that and say, oh my God, we spent all our money. We need more money. So the idea is we want to make sure that they're acting in a way that's reasonable and prudent and [00:18:30] appropriate.
Nick Capodice: [00:18:30] That makes sense. The OMB is supposed to be the level headed money manager.
Samuel Bagenstos: [00:18:36] But the problem is that we've seen [00:18:40] both in the first Trump administration and in this administration, we've seen the Office of Management and Budget not just use that authority For making [00:18:50] sure that things are carried out prudently, but using that authority to second guess the policy judgments made by Congress in laws [00:19:00] that were signed by the president. And, you know, that is something that under our constitutional system, the president and the executive branch are not allowed to do.
Hannah McCarthy: [00:19:12] Technically, [00:19:10] constitutionally not allowed to do. But it's happening anyway. [00:19:20]
Nick Capodice: [00:19:21] Is this the freezing?
Hannah McCarthy: [00:19:22] This is the freezing. Congress gave departments money and told them what to do with it. The OMB is not [00:19:30] letting them do what Congress told them to do.
Samuel Bagenstos: [00:19:33] What's happened in a lot of these cases is OMB has either issued a memo across the board to [00:19:40] to the federal government, to the executive branch saying, don't spend any of the money on this wide swath of programs until we can do a review and tell you it's okay. [00:19:50] So that happened with grant programs at the very beginning of this administration and immediately triggered lawsuits, or they've [00:20:00] gone to individual agency appropriations and in the apportionments in the orders saying to agencies, you can spend money or you can't spend money. [00:20:10] They've attached footnotes to those apportionments saying things like, you can't spend any money for this account until we tell you it's okay. [00:20:20] So as we're speaking just in the past week, OMB did this with grant programs from the National [00:20:30] Institutes of Health, said no more spending on grant programs until the end of the year.
Archival: [00:20:35] President Trump's sweeping federal budget cuts could literally mean the difference between life and death. The Trump [00:20:40] administration has so far terminated more than $1 billion in grants for the National Institutes of Health. Now, the NIH is responsible for more than 80% [00:20:50] of the world's investment in biomedical research.
Samuel Bagenstos: [00:20:55] This led to an outcry from both parties in Congress. [00:21:00]
Archival: [00:21:00] These actions threaten an entire generation of scientists. They threaten our future as a global leader in biomedical research.
Samuel Bagenstos: [00:21:09] And was immediately reversed. [00:21:10]
Archival: [00:21:10] Tonight, those affected by President Trump's federal funding freeze have a little longer to clear up. Confusion over the order of federal judge has temporarily halted it.
Hannah McCarthy: [00:21:18] And that reversal was reversed, [00:21:20] this time by the Supreme Court, which said that Trump was in fact permitted to terminate that grant funding.
Archival: [00:21:26] And the Supreme Court is allowing the Trump administration to slash hundreds [00:21:30] of millions of dollars in research funding. The court lifted a judge's order, blocking $783 million worth of cuts made by the National Institutes of Health.
Samuel Bagenstos: [00:21:38] News reports are [00:21:40] that OMB has recently done the same thing with grant programs from the centers for Disease Control and Prevention issued an apportionment footnote saying CDC, [00:21:50] you may not spend the money in these grants programs until we tell you so. And the way the process works within the executive branch is that [00:22:00] an agency cannot spend money. If OMB tells them they they can't spend money. Um, it actually would would violate federal law [00:22:10] to spend money that has not been apportioned. So this gives, you know, this is a power that's designed for efficient management of the executive branch, but [00:22:20] it can give actors who may have other ulterior motives a tool to achieve their [00:22:30] goals that may be illicit goals or goals that are inconsistent with the law.
Nick Capodice: [00:22:36] So the OMB is allowed to do this to stop the money from being [00:22:40] spent, but they're supposed to use that power to stop money from being spent in an inefficient or imprudent way, and instead they're [00:22:50] using that power to just stop the money. And Samuel was saying, they're not allowed to do this, but they are doing this.
Hannah McCarthy: [00:22:59] Well, [00:23:00] my understanding is that they're using a power they have in a way that the power was not designed for. In fact, they're using it to do the opposite [00:23:10] of what the president is tasked with doing. Congress makes the laws. The president enforces them. That is our system. The OMB has created a kind [00:23:20] of loophole.
Samuel Bagenstos: [00:23:24] This can be a tool for bad faith actors who want to defy the policy [00:23:30] judgments of Congress, to substitute the president's policy judgments for those of Congress. Our system has a pathway for a president who wants to [00:23:40] do that, you know, which is you can veto the law when it comes up the first time. You can go to Congress and get Congress to repeal [00:23:50] the law if you don't like it. But absent one of those two things, it's the president's responsibility to carry out the law. So, you know, NIH has [00:24:00] certain appropriations passed by Congress that say you should finance studies into minority health or [00:24:10] into health care disparities. This president believes that that is inappropriately woke. So this president and this administration have [00:24:20] said, we're going to stop NIH from spending the money on those grants. Well, that's not legal, but [00:24:30] they have this tool that they can use to carry out an illegal withholding of funds, which we call an impoundment of funds, by saying [00:24:40] in an apportionment, we are not going to allow you to spend this money. And that's, you know, what they have done at various points. That's led to litigation. They've been ordered [00:24:50] at various points to actually let the grants go out. Um, sometimes they've complied, sometimes they've not. But but yeah, I mean, so so it's basically [00:25:00] we, we have this procedure that's designed for efficient management of, you know, a giant executive branch, even the Department of [00:25:10] Health and Human Services, when I was there, had a $1.7 trillion budget every year. Now you want to make sure that money is spent efficiently. [00:25:20] It makes sense to have somebody who's watching to to do that. But if they're acting in bad faith and using the tools [00:25:30] they have for efficient management instead to defy the constitutional system, then that becomes something approaching a constitutional crisis.
Nick Capodice: [00:25:45] By [00:25:40] the way, everyone listen to our episode on constitutional crisis and what that means for more [00:25:50] information. All right, Hannah, what exactly happens when the OMB stops or freezes money?
Samuel Bagenstos: [00:25:58] Usaid. That is sort [00:26:00] of the classic example.
Hannah McCarthy: [00:26:01] Nick, you might remember that day one was gonna be big for President Trump.
Nick Capodice: [00:26:07] I do. You made a whole episode about it.
Hannah McCarthy: [00:26:09] And one of his [00:26:10] day one actions was an executive order freezing funding for foreign aid. So it could be evaluated and the administration could decide whether it aligned with American [00:26:20] values.
Nick Capodice: [00:26:21] And look, I know this is relevant now because it was done, but was that legal?
Hannah McCarthy: [00:26:26] As with so many things that we have seen recently, it's kind [00:26:30] of up to the courts to tell us, right? So this was challenged in court. There was a temporary restraining order. Ultimately, the administration was allowed to continue. [00:26:40] So to sum it up, Nick, what happens when an agency doesn't have the money it needs, it shuts down.
Samuel Bagenstos: [00:26:46] The fact that the United States has gone around the [00:26:50] world supporting development projects, providing, uh, health care and medical services for people who really need it, providing all sorts of other [00:27:00] services for people who really need them around the world. That has been good for the people who received the services, and it's also been good for the influence of the United [00:27:10] States. And, you know, for those who think that the United States is sort of engaged in a battle of influence with other countries around the world, it's been a really important [00:27:20] tool of ours.
Hannah McCarthy: [00:27:21] The administration says that USAID had misspent billions of dollars and had, quote, little to show since the Cold War. But [00:27:30] a recent study in the medical journal The Lancet estimated that USAID saved just over 90 million lives, including [00:27:40] the lives of 30 million kids under the age of five from programs that address HIV, Aids, malaria, and other tropical [00:27:50] diseases. A lot of countries have already closed community kitchens designed to prevent starvation and malnutrition, and have closed health centers for life saving [00:28:00] care.
Nick Capodice: [00:28:01] Hannah, has a president ever acted this way before? Frozen funds ended programs that Congress had already [00:28:10] approved money for.
Samuel Bagenstos: [00:28:12] The closest we've come is in the Nixon administration, where President Nixon, in a number [00:28:20] of programs that he thought were inappropriate, um, decided not to spend the money on those programs that had been appropriated by Congress. There [00:28:30] were a series of lawsuits that all went against President Nixon. But even there, you know, it was a particular program here, a particular program [00:28:40] there. Um, what we've seen In in the last, you know, six and a half, seven months with this new administration has been across [00:28:50] the board, basically a refusal to accept any obligation to spend money that Congress has appropriated unless this president [00:29:00] agrees with the policy underlying that appropriation, which is a fundamental shift in our constitutional system. [00:29:10]
Hannah McCarthy: [00:29:10] In fact, what came out of this fight with Nixon was Congress reminding everyone that they are the people in charge of the money.
Samuel Bagenstos: [00:29:17] The Impoundment Control Act was adopted in 1974. [00:29:20] Um, you know, part of a wave of legislation in the wake of Watergate and other Nixonian abuses designed to rein in the executive [00:29:30] branch, reassert congressional control.
Hannah McCarthy: [00:29:32] The Impoundment Control Act was in response to Nixon's refusal to spend money in certain circumstances, and there were a lot of [00:29:40] lawsuits and a lot of court cases, at least one of which went to the Supreme Court. Nixon lost all of them.
Samuel Bagenstos: [00:29:47] What the Impoundment Control Act does is it just reasserts [00:29:50] the basic constitutional order of business, which is that it's Congress that decides what money should be spent and the [00:30:00] purposes it should be spent for. And when it should be spent. And the president has to carry that out, president may have, you know, certain discretion granted to him by Congress, but he [00:30:10] doesn't get to second guess Congress's policy judgments. If you look at the reason that was given for the across the board grants freeze at the beginning [00:30:20] of the administration, um, it was, you know, in in the words of the OMB memo, it was to make sure that the that the grants were [00:30:30] consistent with the president's priorities. Well, I mean, the grants were issued pursuant to priorities set by Congress. That's you know, that's not something [00:30:40] that the president gets to second guess.
Nick Capodice: [00:30:42] So Samuel is saying that the president and the OMB are not allowed to do this, but they are doing it. And I [00:30:50] am reminded of the thing that we have said for years on this show that the rules and the laws and the Constitution, they are only as good as their enforcement. [00:31:00] They're just words. You need people to make those words real. And look, I know there have been lawsuits and I know [00:31:10] some of them have been effective, but, uh, but but but what is going on here? What has broken down? Why isn't Congress? [00:31:20] I don't know. Why isn't Congress mad?
Samuel Bagenstos: [00:31:23] You know, if you go back and read the Federalist Papers, Madison is particularly [00:31:30] adamant on this point that in our system, with separate executive, judicial, and legislative powers, each branch will check each [00:31:40] other, as he says, ambition will counteract ambition. Right. So there's this assumption that people within each branch will defend the prerogatives of their branch [00:31:50] of government. And I think the problem is that's broken down. Um, you know, when Madison wrote that, it was before we had the [00:32:00] rise of a political party system in the United States. Um, you know, and I think one of the most important changes in the last several [00:32:10] decades as the parties have become more ideologically sorted post the civil rights era, um, is that we don't really have [00:32:20] a separation of powers in the same way anymore as an effective matter. One of the most well cited [00:32:30] law review articles of the last 2025 years is one that's entitled Separation of Parties, not powers. And that's really what we have now. What we have is when [00:32:40] the The legislative branch is controlled by the same party as the executive branch. We don't see the legislative branch standing up for its institutional prerogatives.
Samuel Bagenstos: [00:32:49] In [00:32:50] my lifetime, we did. But that's really fallen apart now, because what we're seeing right now is the president and the executive [00:33:00] branch completely disregarding multiple aspects of Congress's constitutional power of the purse. Power of the purse is probably [00:33:10] the one consensus piece of the constitutional system for the framers of our Constitution. And [00:33:20] yet we have an administration that has really been taking that away on multiple fronts, and a Congress that hasn't been standing up for its prerogatives. It's not that they don't [00:33:30] have tools. They do have tools. They're just not really using them. And and I think that's because we don't we don't have a willingness anymore for [00:33:40] people to stand up to a president of their own party on behalf of the interests of their branch of government. And so that creates [00:33:50] a major problem for the constitutional system. That's kind of laid out on paper. And that we have been, you know, we've understood in [00:34:00] civics classes when we take civics 101 like this podcast is about. So maybe, maybe we should be saying this is Civics 101 today. You know, what does it really look like? [00:34:10]
Hannah McCarthy: [00:34:19] This is Civics 101. [00:34:20] I'm Hannah McCarthy.
Nick Capodice: [00:34:23] I'm Nick Capodice.
Hannah McCarthy: [00:34:26] And today, what happens when what's supposed to happen stops happening? [00:34:30]
Nick Capodice: [00:34:30] And tomorrow and tomorrow and tomorrow.
Hannah McCarthy: [00:34:33] One last thing here, Nick. We are mostly talking about two branches, the executive and the legislative. We talked a little bit about how [00:34:40] the third branch, the courts, can and have gotten involved to a certain extent. But I also asked Samuel about the other people involved in this country, we [00:34:50] the people and what the people actually want.
Samuel Bagenstos: [00:34:55] These decisions are not popular. They are, in fact, [00:35:00] you know, very much underwater in the polling when you when you look at them and, you know, usually we have expected that in our democratic system, [00:35:10] public opinion would be a check on decisions like this. Um, it's really hard to think of a set of legislative [00:35:20] decisions and executive decisions that have been so inconsistent with majority preferences, as expressed in all sorts of ways.
Archival: [00:35:30] Into [00:35:30] the streets.
Archival: [00:35:32] They are scientists turned activists.
Archival: [00:35:36] Not corporate greed.
Archival: [00:35:37] Anytime a worker or now [00:35:40] a former worker of USAID, comes out of the building with their belongings. This crowd is cheering them on.
Archival: [00:35:47] Funding freezing and chaos has to stop [00:35:50] now.
Archival: [00:35:51] Research, careers, education and lives on the line with massive funding cuts to medical research.
Samuel Bagenstos: [00:35:56] But I think part of what's going on here, too, is in [00:36:00] the elite constitutional culture in Washington, there's this sort of rise of the idea of the unitary executive that [00:36:10] the president is the only nationally elected official, and therefore we will sort of take [00:36:20] the president's election as a validation by the people of whatever the president wants to do, you [00:36:30] know. And we see that reflected in all sorts of legal decisions, and we see that reflected in the way that people talk about presidential power now. And the thing is, it's not realistic.
Archival: [00:36:39] We [00:36:40] all need a good paddling from the principal to to set our life on the right track.
Archival: [00:36:47] I'd like to see the repeal of the Roosevelt law [00:36:50] so that he can be a president for a lot more than four years. But we this country, needs a dictator. I hate to say that, but it's the truth.
Archival: [00:36:57] And they say we don't need him. Freedom. Freedom. He's [00:37:00] a dictator. He's a dictator. A lot of people are saying maybe we like a dictator.
Samuel Bagenstos: [00:37:08] I think, you know, this [00:37:10] president won a majority of of the votes. You know, he is the legitimately elected president. That doesn't mean people agreed with every one of these things. [00:37:20] And in fact, you know, I think what you'd say is people voted for him because they thought inflation was too high. They wanted to lower prices. People were concerned about issues [00:37:30] like immigration, not necessarily that they wanted to do all the things he's doing on immigration, but they were concerned about immigration. Did anyone vote? I mean, some people may have voted for, [00:37:40] for for this president because they wanted to cut public radio or public television. But, you know, is that anywhere close to a majority [00:37:50] of the people who voted, much less who voted for this president? Almost certainly not. Did people want to cut, you know, life saving Aids treatments for people in Africa? [00:38:00] Is that something people voted for? You know, that's that's the kind of thing where I think people are taking this. People within our DC based [00:38:10] elite constitutional culture are taking this unitary executive idea and Plebiscitary presidency idea too far. You know, yes, [00:38:20] people vote for the president. It is important to understand he has a Democratic warrant for significant aspects of his policy program. [00:38:30] Um, but, you know, all the laws passed by Congress have democratic legitimacy as well. And he needs to follow those. And I think we're kind of [00:38:40] losing that thread a little bit.
Nick Capodice: [00:38:42] Well, if you want to destroy my sweater, hold this thread as I walk away.
Hannah McCarthy: [00:38:48] You think Weezer would let us play Undone [00:38:50] the Sweater Song on the podcast?
Nick Capodice: [00:38:52] Tell you what, Hannah, I'll have my people get in touch with their people.
Hannah McCarthy: [00:39:18] This [00:39:10] episode was produced by me, Hannah McCarthy [00:39:20] with Nick Capodice. Our producer is Marina Henke. Rebecca Lavoie is our executive producer. Music in this episode comes from Epidemic Sound. A reminder that your representatives are [00:39:30] not required by the Constitution or other laws to attend town hall meetings and hear from you, their constituent, but you are allowed by Constitution [00:39:40] and other laws to petition them to hear you if you want to. For example, ask your representatives why they're sitting on their power of the purse hands. You can call them, email them, [00:39:50] show up to town halls. They show up to tell them what you, the people who hired them, need from them. Tell them what their nation requires to thrive. You can find information about [00:40:00] how to contact your congressional representatives and about their upcoming events on their individual websites, Facebook pages, blue sky accounts in your local newspaper, if it still exists, etc.. [00:40:10] Remember, we hired them. We can fire them and they know that and typically they want to keep their jobs. Civics 101 is a production of NHPR, New [00:40:20] Hampshire Public Radio.