Civics: Our three part federal government
The first category includes the Administration’s decision to pause discretionary spending to ensure it complies with the President’s priorities. Democratic state Attorneys General say this is illegal, and Judge John McConnell on Monday agreed. The Administration is appealing, and judges can’t force a President to spend money that Congress has left to his discretion.
Most of these spending programs don’t include concrete disbursement deadlines. If Mr. Trump is violating the law, so was the Biden Administration, which delayed disbursing grants under the 2021 infrastructure bill and 2022 Inflation Reduction Act to review applications and attach conditions. What Mr. Trump is doing is no different.
Government unions are challenging Mr. Trump’s buyout offers for federal workers on grounds that Congress hasn’t funded them, but this doesn’t make them illegal per se. If Mr. Trump later doesn’t pay these workers, they could sue in federal claims court.
Unions are also challenging Mr. Trump’s Schedule F reform, which removes civil-service protections for some high-ranking career employees. Here, too, Mr. Trump is on strong legal ground. The Civil Service Reform Act of 1978 exempts positions “determined to be of a confidential, policy-determining, policy-making or policy-advocating character.”
Mr. Trump has expanded these exempt positions to employees who supervise investigations, develop regulations and exercise power under an agency’s discretion. Congress has expanded the discretion of agencies such that federal workers now boast far more power than they did 50 years ago. A President should be able to hold them accountable for performance to ensure laws are faithfully executed.
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Harvard law professor Hal Scott recently argued in these pages that the CFPB is operating illegally because Congress funded the agency with earnings from the Federal Reserve. Because the Fed has incurred losses since September 2022, Mr. Scott says the bureau should close unless Congress appropriates money for it. This argument is plausible.
