The Power of the Purse I: Inter-Branch Transformations

David Super

     Charles I of England did not call Parliament into session because he desired its company or because he valued its counsel.  He called Parliament into session because he desperately needed money and because, under the Stuart Constitution, he had no other means of obtaining it.  This requirement eventually led to the ultimate check on his royal powers. 

     How remarkable it would be if the contemporary U.S. Constitution gave the President more financial autonomy than an English constitution resting on a far more absolutist, and overtly royalist, ideology.  This would be all the more remarkable in an era where Originalism is ascendant:  very few of the Framers were royalists, and even fewer allowed royalism to slip into their public communications.  President Trump has not yet reached the point where his powers clearly exceed those of Charles I, but the degree to which he has wrested the Power of the Purse away from Congress, and the scale of the changes within each branch of government in how fiscal prerogatives are exercised, are quite remarkable.  As someone once said in a somewhat different context, if we wish to understand true power in Washington, we must follow the money.  This post discusses how the President has wrested the Power of the Purse away from Congress.  Tomorrow I will analyze how changes within each branch have facilitated these changes. 

     Logically, the Power of the Purse has four components:  the power to say what revenues will be collected, the power to say what revenues will not be collected, the power to say what funds will be spent, and the power to say what funds will not be spent.  President Trump has significantly expanded presidential power in all four areas. 

     His most conspicuous revenue expansion has been his unilateral tariffs.  The Supreme Court struck down his sweeping “Liberation Day” tariffs on much of the world after they had been collected for ten months.  After defiantly blasting the Court, including his own appointees, President Trump then imposed another sweeping set of tariffs under a different legal rationale.  These, too, have been held unlawful in a lower court, but the President seems intent on imposing a new set of tariffs whenever he is prevented from imposing an old one. 

     Beyond this, the President has obtained ostensibly “voluntary” contributions from numerous entities outside of the federal government to fund his agenda.  Companies seeking regulatory concessions from the Administration, for example, have contributed heavily to building the President’s desired grand ballroom.  When state or local governments leverage regulatory approvals to obtain costly concessions from private businesses, the Supreme Court has called them “exactions” and struck them down as unconstitutional takings of private property without just compensation.  These are revenues.  And under the Miscellaneous Receipts Act, they must be – but apparently have not been – deposited in the Treasury and made subject to congressional appropriation.  The Act specifically prohibits depositing such funds in a bank. 

     President Trump also used the taxpayer-funded U.S. armed forces to replace Venezuela’s president with one who allows him to take a large share of the country’s oil revenues and place them in an account controlled only by the President.  Again, the Miscellaneous Receipts Act applies.

     Charles I had little desire to forego revenues, but President Trump inherited a government with a much stronger fisc – and seems quite indifferent to the fiscal position he leaves to his successor.  He therefore has sought to reduce taxes on his affluent allies.  Congressional Republicans shared this agenda and enacted the One Big Beautiful Bill Act last summer.  Although profoundly unwise, the Act raises no sweeping challenges to the constitutional order.  But President Trump has gone farther by preventing the Internal Revenue Service from enforcing revenue laws still on the books.  Part of has come through slashing IRS’s enforcement staff, leaving the agency hopelessly outmatched against wealthy individuals and corporations with complex tax situations.  This operates not very differently from the repeal of many Code provisions designed to curb upper-income tax abuse.  Although the Code prohibits the President and his entourage from influencing tax enforcement actions, news reports suggest that the Administration may be contemplating the grant of audit exemptions under the guise of settling litigation.   

     Quite apart from the public funds he has kept outside the Treasury, President Trump has repeatedly spent large sums from the Treasury contrary to law.  No apparent principle limits his willingness to disregard limitations on appropriations. 

     His cases against the federal government, which a federal judge flagged as potentially collusive, provide another means of accessing large amounts of Treasury dollars without going through Congress.  As I explained earlier, the “settlement agreement” negotiated between Trump-controlled plaintiffs’ lawyers and Trump-controlled defendants’ lawyers holds the distinction of disregarding parts of each of the first three articles of the Constitution (the Appropriations Clause, the Take Care Clause, and the Case and Controversy Requirement) as well as one of the amendments (section 4 of the Fourteenth).  The Justice Department’s press release says Acting Attorney General Todd Blanche has chosen to provide $1.776 billion to this fund for paying the President’s political allies without their proving any of the facts that Congress has required for claims against the federal government.  But nothing stops the President from directing Mr. Blanche to provide more funds without congressional appropriation or to expand the purposes for which they may be spent.

     Although the decisions to go to war with Iran and to take military action against Venezuela, Cuba, and others are commonly discussed in terms of international relations, they are also huge fiscal decisions.  By giving Congress exclusive authority to declare war, the Constitution ensures its comprehensive control over the nation’s finances.  President Trump’s disregard of this power further arrogates the Power of the Purse.  At some point, Congress will have little practical choice but to pay for the wars that were started without its authority.  The cost likely would be sufficient to reverse the devastating cuts to Medicaid and food assistance in last summer’s One Big Beautiful Bill Act, to establish a national child care subsidy program, or to make meaningful progress in shifting our energy infrastructure away from carbon. 

     The final component of President Trump’s claiming Congress’s Power of the Purse, impounding funds appropriated by Congress.  This may be best-known but least-understood of the Administration’s fiscal efforts.  OMB Director Russell Vought returned to office asserting presidential powers unheard of since the Supreme Court unanimously rejected President Nixon’s impoundments.  He followed that up by freezing funding for many domestic programs.  This global freeze was enjoin, withdrawn, and replaced by numerous more targeted, if no more justified or lawful, freezes on particular programs. 

     The picture at this writing is complex and confused.  A few programs did indeed suffer devastating unilateral, lawless impoundments, notably the U.S. Agency for International Development and the Minority Business Development Agency.  Others suffered narrower but still significant impoundments.  For still others, the Administration reported funds obligated but found a wide variety of gimmicks to keep the money from reaching its intended beneficiaries.  Some programs have seen their funds have been diverted to the Administration’s priorities.  For others, OMB has imposed practically unmeetable conditions that must be met before the funds are spent.  For still others, OMB has delayed spending without clearly stating that it intends the delay to be permanent.  And in a wide range of programs, the Administration has leveraged the threat of impoundments to coerce state and local governments and private grantees in ways not authorized by law. 

     Litigation’s results have been mixed.  The Supreme Court has sharply curtailed the ability to bring effective litigation but has not completely shut down potential recipients’ ability to sue.  The procedural obstacles it has placed in the way of litigants, and its resistance to allowing preliminary relief in funding cases, has left the Administration a relatively free hand for now.  But the Court has not clearly repudiated its prior decisions limiting presidents’ ability to arrogate spending powers to themselves.   

     The Power of the Purse has by no means fully passed from Congress to the President.  But the President’s actions suggest few obvious limits to his seizures of prerogatives the Constitution assigns to Congress.  It is difficult to identify a significant fiscal policy that the Administration has desired that it has been prevented from implementing.  So far, at least, Charles I would be most envious.

     @DavidASuper.bsky.social @DavidASuper1

Protecting Student Speech

Guest Blogger

Ronald C. Den Otter

My new book, Education in Democracy:The Importance of Free Speech in American Public Schools, is about the value of student speech and the dangers of censorship. Coupled with distrust of government, where school authorities cannot be trusted to police student speech competently or fairly, I make an autonomy-enhancing argument, contending that the exercise of free speech rights by students is constitutionally required in the name of respecting their autonomy, both as speakers (or writers) and listeners (or readers). I also explain why this practice over time is conducive to the development of the autonomous capacities that they will need as they approach adulthood and democratic citizenship. Ultimately, I defend the perhaps counterintuitive conclusion that constitutional protection for student speech is more imperative when students are young and impressionable. Not in spite of their age, but because of their age, there ought to be few limits regarding what they can say or write outside the classroom, when they are on campus or off campus using social media. 

A Ballroom Too Far: Republicans’ Procedural Blunders

David Super

     Over the past week, the Trump Administration celebrated the completion of its trifecta of retribution against dissident Republicans, defeating Rep. Tom Massey (R-Ky.) in his primary after previously doing the same to Sen. Bill Cassidy (R-La.) and a group of Indiana state senators opposed to mid-decade partisan redistricting.  Yet rather than having grounds to celebrate, Republicans ended the week in disarray.  Much of this is the toll of accumulated public discontent over the economy, the war in Iran, a violent anti-immigrant campaign, and a host of other self-aggrandizing actions seeming disconnected from the nation’s genuine problems.  Congressional procedure, however, played its role.  This post explains how Republicans’ “strong” moves have landed them in such a mess.   

     The epidemic of violence by Immigration and Customs Enforcement (ICE), Customs and Boarder Protection (CBP), and cooperating agencies led Democrats to demand restrictions on those agencies’ actions in the Homeland Security Appropriations bill.  The White House rejected even fairly basic limits, shutting down negotiations between the two parties’ appropriators.  This led to a partial government shutdown when Democrats effectively filibustered that bill.  Democrats repeatedly offered, and forced Senate Republicans to vote down, bills appropriating funds to the rest of the Department of Homeland Security (DHS), apart from ICE and CBP. 

     The One Big Beautiful Bill Act last summer fully funded ICE for this fiscal year and beyond.  CBP was a bit less flush but also in no immediate distress.  Essential workers in other DHS agencies, however, were getting increasingly restless as they were not getting paid.  The Administration illegally paid those workers once, defying the Constitution’s Appropriations Clause, but got cold feet about doing so again. 

     With polling showing that the electorate was modestly more inclined to blame Republicans for the shutdown, Senate Republicans tired of having to vote down funding for the Coast Guard, the Transportation Security Administration, and other popular agencies.  They agreed to the Democrats’ proposal to fund the rest of DHS without ICE and CBP.  They justified this capitulation by announcing that they would fund those two agencies through a reconciliation bill that Democrats could not filibuster.  House Democrats had no comparable means of forcing awkward votes so the House Republicans were feeling less pressure.  House immigration hawks initially condemned the Senate Republicans’ capitulation but ultimately passed the Senate’s all-but-ICE/CBP appropriations bill. 

     Because they are exempt from filibusters, reconciliation bills often become “Christmas trees”, with everyone in the majority party trying to attach their own contentious items.  This bill was no exception:  the White House apparently insisted on adding $1 billion for the President’s grand ceremonial ballroom.  The President had previously promised that no public funds would go into his ballroom – and secured large donations from companies seeking favors from the Administration – Republicans argued that these funds would go entirely for security improvements adjacent to the ballroom.  Given the ballroom’s unpopularity, this raised the political cost of the bill considerably.  And the ballroom’s inclusion turned out to be a procedural disaster. 

     Because reconciliation bills are extraordinary in that they may pass on a simple majority vote, the procedures for their consideration are more formal than usual.  Before bringing a reconciliation bill to the floor, the majority must first pass a “budget resolution” through both chambers that assigns budgetary limits to each committee intended to contribute material to the final bill.  Reconciliation procedures also allow the minority to force votes that the majority could dodge on other legislation. 

     The Republicans’ budget resolution gave budgets only to the Homeland Security and Judiciary Committees, which divide jurisdiction over immigration.  They likely could have given ICE and CBP all the money they desired through the Homeland Security Committee alone.  The Judiciary Committee, however, has jurisdiction over the Secret Service, and to keep up the pretense that the ballroom funding was only for security improvements, Republicans decided to channel it through the Secret Service.  To give Judiciary Committee members political cover, Republicans had that committee create some of the ICE/CBP funds as well. 

     This all blew apart when the bill reached the floor.  First, Democrats persuaded the Parliamentarian that the White House complex well within the jurisdiction of the Environment and Public Works or Energy and Natural Resources Committees, neither of which was given any money to spend in the budget resolution.  Senate rules attribute spending to the committee with jurisdiction even if it springs from legislation reported out by another committee.  Therefore, the ballroom funding was subject to a point of order for increasing those other committees’ contribution to the deficit without permission in the budget resolution.  If Republicans did not strip the ballroom from the bill themselves, Democrats could raise a point of order that would require sixty votes for Republicans to waive. 

     The problems did not end there.  Although the White House complex is not within the Judiciary Committee’s jurisdiction, the Justice Department is.  Amendments to reconciliation bills that reduce the deficit within the jurisdiction of one of the participating committees are generally in order.  Therefore, by trying to fund the ballroom, Senate Republicans likely allowed Democrats to offer an amendment to the bill that would explicitly forbid the President’s already unlawful $1.776 billion “weaponization” compensation fund.  With half of the Republican caucus reportedly up in arms over the morality and wisdom of that fund, such an amendment would easily pass. 

     To be sure, House Republicans could add back the ballroom and delete any restrictions on the “weaponization” fund.  But with Rep. Massey and all Democrats surely opposed, that could mean that every other Republican, would have to vote for this politically toxic bill – including those facing difficult re-election battles.  By tradition, Democrats can force one floor vote, on a motion to recommit the bill to committee.  Democrats would surely force Republicans to vote on removing the ballroom, barring the “weaponization fund”, or both (by reverting to the Senate version of the bill). 

     And even if the House changed the bill to the President’s liking, that would probably force the convening of a House-Senate conference committee.  At a minimum, this would entail further delay.  And the prospects on the Senate floor of a conference bill that either funded the ballroom or allowed the “weaponization fund” would be dubious at best:  in addition to Sen. Lisa Murkowski (R-AK), who likely opposes it on substance (and who years ago showed she could survive a primary challenge), leadership would have to worry about Sen. Susan Collins (D-Me.), who is in a difficult re-election battle, as well as Sen. Cassidy, whom the President just defeated for re-nomination, Sen. John Cornyn (R-Tex.), whom the President is trying to defeat next week, and two senators forced into retirement with threats of primary challenges (Sens. Thom Tillis of North Carolina and Mitch McConnell of Kentucky).  Overzealous efforts to enforce party discipline can quickly backfire. 

     The Senate Republicans’ impasse over the ICE/CBP reconciliation bill also imperils other parts of the President’s agenda.  Democrats are unlikely to support full funding for the war in Iran that the President launched without consulting Congress – at least not unless it imposes new limits on presidential war-making powers.  Republicans had increasingly been discussing yet another reconciliation bill to fund the war and avoid a filibuster.  These discussions have stalled as Republicans may not have fifty votes for such a bill.  But if they cannot pass the comparatively easy ICE/CBP reconciliation bill, the odds of twisting enough arms to move a much more contentious war reconciliation bill seem even more remote.  Again, the President’s choice to end the careers of four Republican senators for perceived disloyalty considerably weakens his leverage. 

     This also further undermines the President’s demands that Senate Republicans abolish the filibuster to enact the voter-suppressing “SAVE Act”.  Senate Majority Leader John Thune had reported that he lacked the votes to do so even before the latest meltdowns.  Now that the President has personally alienated more senators, and forced the Republican Senate to become accustomed to resisting his agenda, the SAVE Act’s prospects have dimmed even further. 

     House rules give the Speaker near-absolute procedural control of what comes to the floor and how.  One of the few powers the minority does have, however, is the ability to advance a resolution disapproving of a President’s military engagement.  House Democrats sought to do so this past week, with Republican leadership expecting to defeat the resolution on a party lines’ vote.  They had to adjourn hurriedly, however, when they discovered that they did not have sufficient Republican votes to prevail.  This vote now awaits them upon their return.  The President can and surely would veto any anti-war resolution that actually passes, but the prospect of House Republicans in difficult districts having to choose between the President and their anti-war constituents likely is haunting many Members’ recesses.  This could be why the President suddenly seems in a hurry to announce a deal despite the Iranians apparently having capitulated on nothing. 

     Progressives commonly demand that Democrats enforce tighter party discipline and eliminate the filibuster.  It is instructive to see how fierce party discipline and the filibuster have been pummeling Republicans this year. 

     @DavidASuper1 @DavidASuper.bsky.social

R.I.P. Ran Hirschl

Mark Graber

Ran Hirschl was a pathbreaking scholar, an even better human being, and an even better friend.  Words cannot capture his impact on scholarship and on the lives of the numerous scholars he touched.  The excerpts from a letter on his behalf are a weak attempt to do justice to him and his legacy.  They remain in the present tense because through his works, example, and encouragement, Ran will always be with him.

Hirschl is the leading thinker on comparative constitutionalism in the world.   No political scientist in the public law field, no political scientists in the comparative government field, no law professor, and no member of any other discipline has come close to his achievements.  Each of Professor Hirschl’s books is acknowledged as path-breaking.  No one knows more about constitutional developments in different parts of the world.  No one has done more to inspire the contemporary renaissance in comparative constitutionalism.  No one has played a greater leadership role in this comparative constitutional revival.  You could divide Hirschl’s resume in half and probably thirds and each piece would have a powerful case for a lifetime achievement award in numerous disciplines and in numerous fields within those disciplines.

Hirschl has a stunning range of expertise, a range that dwarfs any other scholar that I know of in political science or law.  One finds in his publications a sophisticated understanding of political theory, all aspects of public law, and comparative politics.  He has clearly mastered the literature on democratic theory, on constitutional interpretation, on law and society, and on judicial politics.  He seems to have mastered the general literature on comparative constitutional law, and the specific constitutional politics of almost every country with constitutional politics.  His chapter on case studies in Comparative Matters is an extraordinary methodological piece, one I regular insist my students examine.   I have always been particularly impressed with Professor Hirschl’s capacity to both know the details of what almost every constitutional court in the world is doing and to organize those details into theoretically rich arguments.  Maybe somewhere in an obscure province in India, a constitutional development exists that Hirschl does not know about.  But neither I nor any of the numerous reviewers of his works have been able to identify this omission.  I am confident Vulcan of Star Trek fame is fiction, because Professor Hirschl has never discussed the Constitution of Vulcan.

This erudition extends far beyond law and political science.  Consider the first chapter of City, State: The Constitutionalism and the Megacity.  The chapter begins with an extensive discussion of what almost every social science field has said about cities for the past fifty years.  Hirschl seems to have a fluency in subjects ranging from sociology to architecture that would do experts in those field proud.  Perhaps I need to get out more, but I cannot think of a scholar in any field whose expertise ranges over so much political science, so much law and so much scholarship as Professor Hirschl.  The other books are similar.  Hirschl does not simply master law and political science.  He masters whatever disciplines are necessary to cast light on his subject matters.

Professor Hirschl’s forthcoming book, Constitutionalism 2050 points out that the traditional nation-state no longer serves to manage central problems.  The problems regimes face, from climate change to globalization to pandemics are now international.  Local national governance, he observes, weakens human capacity to respond to these problems.  Constitutionalism must go global for the human race to survive.  Putting aside jealously, I had two thoughts when he was presented.  Sandy Levinson accurately describes this work as the most important book on constitutionalism published in the twenty-first century.  As always the erudition is remarkable; the thesis strikingly original, and the importance speaks for itself.

Professor Hirschl is a fellow of the Royal Society of Canada, which is the equivalent of being a member of the American Academic for the Arts and Sciences in the United States (both are academic halls of fame).  He has held distinguished chairs at the University of Toronto, the University of Texas, and the Max Planck Institute in Germany, as well as holding distinguished visitor chairs at the National University of Singapore, New York University and Harvard Law School.  He has won national and global awards for scholarship and delivered addresses, often named, at almost every major university in the world.  He is a former Co-President of the International Society of Public Law and one of the founders of that organization.  He has published many edited collections and nearly one-hundred essays, many of which have been republished and translated elsewhere.  The evidence clearly indicates, I should add, that none of his works seem to have been written by Christopher Marlowe.

 Professor Hirschl excels at all facets of the academy.  He was an award-winning teacher at Toronto.  When I wrote his recommendation for the Canada Research Chair, the University of Toronto presented me with as strong a set of teaching evaluations, both for graduate students and undergraduates, as I recall seeing.  He has helped mentor the younger generation of comparativists.  You see Professor Hirschl’s name in manuscripts by junior scholars warmly thanking him for the time and energy he gave to reviewing junior manuscripts.  He has been a leader in comparative constitutionalism, not just as a scholar, but as a founder and leader of the International Society of Public Law.  Thanks in significant part to his efforts, ICON-S is probably the most important site in the world for comparative constitutionalism.  Finally, on a personal note he is a warm and trusted friend to many of us in the academy.

Professor Hirschl has a global reputation for excellence and as fine a global reputation for decency.  He is an outstanding teacher, mentor, colleague, and friend.

There will be a program at APSA honored his memory and achievements.  Others are in the works.  All we can do for the present is miss terribly this amazing scholar, human being and friend. 

Still Searching for University Democracy

David Pozen

Jan 6th as Bastille Day

Gerard N. Magliocca

I guess that's the official theory anyway. The French Revolutionary government gave the rioters medals, cash awards, and (in some cases) pensions.

By the way, while I'm sure that the so-called settlement is unlawful under the Appropriations Clause, I've not made up my mind about how Section 4 of the Fourteenth Amendment might apply. One sticking point is that Confederate veterans received state pensions for decades, though those were appropriated by state legislatures. I need to think through the relevance of that practice.

Is the New “Weaponization” Compensation Fund Lawful?

David Super

     President Trump, his older sons, and his business have filed several claims against the United States Government that he controls.  On May 18, 2026, the Department of Justice announced that plaintiffs’ lawyers, whom President Trump controls, and defendants’ lawyers, whom he also controls, have settled some claims.  Under this agreement, the Government would establish a fund to pay compensation to individuals who allege they were victims of improper “weaponization” of the federal government during President Biden’s administration.  Although widely reported to be for persons who were tried and convicted for crimes relating to the January 6, 2021, assault on Congress, the settlement agreement does not specifically mention that attack and allows anyone who feels they were victimized to file a claim.  The agreement does not designate any amount of money to go to this fund, although Acting Attorney General Todd Blanche’s announcement says it will receive $1.776 billion.  (The settlement also, unconvincingly, tries to shield the payments it makes from taxation.)  The Administration has made clear it does not intend to seek approval or an appropriation from Congress.  This post examines the legality of this arrangement.

     One simple answer is that section 4 of the Fourteenth Amendment declares that “neither the United States nor any State shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States … but all such debts, obligations and claims shall be held illegal and void.”  The unprecedented attack on Congress on January 6 was an “insurrection or rebellion against the United States”.  Any purported debts perpetrators might file likely were incurred in aid of that insurrection and therefore that are “illegal and void”.  To be sure, the purported debts are not for the costs of the insurrection itself but rather to compensate for the lawful punishment the insurrectionists subsequently suffered for their acts.  The sequence, however, should not matter:  the law long has recognized liability for acts assisting perpetrators of crimes occurring entirely after the crimes were committed. 

     To be sure, some people who did not participate in the January 6 insurrection may claim to have been victims of other federal abuses.  Section 4 would not bar relief for them.  Nonetheless, they – as well as the January 6 claimants – would be barred from receiving money from this fund for other reasons. 

     Article I, section 9, clause 7 of the U.S. Constitution provides that “No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law”.  Similarly, the Anti-Deficiency Act provides that “Except as specified in this subchapter or any other provision of law, an officer or employee of the United States Government or of the District of Columbia government may not…make or authorize an expenditure or obligation exceeding an amount available in an appropriation or fund for the expenditure or obligation”.  Violations of the Anti-Deficiency Act carry criminal penalties.  Therefore, Justice Department officials involved in creating or administering the proposed fund would face serious personal jeopardy if they cannot identify a congressional appropriation permitting these expenditures or feel confident they will be included in a future pardon. 

     Acting Attorney General Blanche’s statement declares that the Administration will make these payments under the Judgment Fund, a permanent uncapped appropriation for paying judgments against the United States Government.  The drafting of the settlement agreement, however, may preclude that.  Section IV.A directs Acting Attorney General Blanche to issue an order within 30 days of the agreement that “shall establish funding” for the program.  Section VII then states that the settlement agreement and the accompanying orders of the Attorney General “constitute[] the entire agreement of the Parties, and no prior statement, representation, agreement, or understanding, oral or written, that is not contained herein, will have any force or effect.”  Thus, the settlement agreement does not require any particular level of funding and any side agreement on the $1.776 billion figure has no legal effect.  Acting Attorney General Blanche could have fully complied with the settlement agreement by designating one dollar for the fund.  His voluntary choice to provide more than was obligated was not necessary to settle these cases and hence is not covered by the Judgment Fund. 

     Yet even without these technical blunders, the Administration’s broader theory cannot withstand scrutiny.  It is arguing, in essence, that the mere act of filing a lawsuit against the Government allows President Trump to fully circumvent the Appropriations Clause and the Anti-Deficiency Act by “settling” for any spending he desires.  He thus could file a meritless lawsuit against the Government he controls and then “settle” for taxpayers’ dollars to build his ornate ballroom, to fund his grand “Arc d’Trump”, or even to pay for foreign wars that Congress declines to fund. 

     As in the case of other Administration legal theories that purport to confer transformative powers onto the President, we should ask ourselves whether the Framers, or Congress, or the courts, have really left such a spectacular loophole in our system of checks and balances.  In some instances, the answer may be that our forebears failed to imagine presidential power being exercised with such blatant dishonesty and bad faith.  But often close examination of the controlling legal materials shows that the purported sweeping powers are a phantom. 

     The Judgment Fund provides an appropriation to pay a “judgment, award, or settlement” under any of ten specified federal laws or a decision of a board of contract appeals.  Six of the enumerated statutes are obviously inapplicable to this situation.  Section 2677 allows settlement of claims under section 1346(b), but the latter strictly limits recoveries to “injury or loss of property, or personal injury or death”, a much narrower set of harms than the settlement agreement contemplates, and further limits recoveries by persons incarcerated after felony convictions.  Section 2672 is similarly limited to claims for “injury or loss of property or personal injury or death”.  Section 2517 is limited to judgments of the Court of Federal Claims, not settlements. 

     That leaves section 2414.  That section, too, primarily addresses court judgments.  It does, however, provide that “[e]xcept as otherwise provided by law, compromise settlements of claims referred to the Attorney General for defense of imminent litigation or suits against the United States, or against its agencies or officials upon obligations or liabilities of the United States, made by the Attorney General or any person authorized by him, shall be settled and paid in a manner similar to judgments in like causes and appropriations or funds available for the payment of such judgments are hereby made available for the payment of such compromise settlements.”  This is the only possible basis for accessing the Judgment Fund here. 

     Section 2414’s permission to pay settlements of claims, however, is subject to limits in other laws.  One such federal statute is section 1359 of Title 28, which provides that “[a] district court shall not have jurisdiction of a civil action in which any party, by assignment or otherwise, has been improperly or collusively made or joined to invoke the jurisdiction of such court.”  President Trump suing the U.S. Government, which he completely controls under the Unified Executive Theory he has tirelessly invoked, would strike many as a collusive attempt to invoke the jurisdiction of the federal court to facilitate a settlement of his liking.  President Trump acknowledged that this litigation appears to be brought against himself.

     Another such statute is section 530B(a) of Title 28, which provides that “An attorney for the Government shall be subject to State laws and rules, and local Federal court rules, governing attorneys in each State where such attorney engages in that attorney's duties, to the same extent and in the same manner as other attorneys in that State.”

     Florida Bar Rule 4-3.1 prohibits meritless or frivolous litigation; Rule 4-3.3 requires candor toward the tribunal.  District of Columbia Rules 3.1 and 3.3 are similar.  Litigation in which the same individual controls both sides is inherently misleading to the court and does not call for the adversarial resolution of any questions of fact or law. 

     As the U.S. Supreme Court has said, litigation in which the same person controls both sides “is not in any real sense adversary. It does not assume the ‘honest and actual antagonistic assertion of rights’ to be adjudicated – a safeguard essential to the integrity of the judicial process”.  The Supreme Court of Florida has cautioned against “connivance in [the] defeat” of a party, which certainly occurs when the plaintiff has full control over the defense.  It warned that “[t]he fairness of the system is undermined when the alignment of interests in the litigation is not what it appears to be.”

     Acting Attorney General Blanche’s press release cites a settlement the Obama Administration made with Native Americans as precedent for its actions here.  That case, and many others, did settle litigation against the federal government with moneys from the Judgment Fund.  That settlement, however, did not result from litigation where the same individual controlled both sides of the litigation.  And that settlement was approved by a judge while the settlement of President Trump’s litigation was hustled through this week to save the parties from having to file briefs the court sought on whether they have sufficient adversity to secure federal jurisdiction.

     A series of memoranda from the Justice Department’s Office of Legal Counsel make clear that the Judgment Fund is not available to pay collusive settlements.  As summarized in a 2023 memorandum from the Associate Attorney General (with citations omitted):

A settlement must conform to any applicable statutory limitations and serve the "best interests" of the United States.  The President's constitutional obligation to take care that the laws be faithfully executed "necessarily serves to limit the exercise of the Attorney General's settlement authority so that it does not become a dispensing power." OLC has therefore concluded that the Department may compromise claims only if the Department makes a "good faith assessment" that a court could find the government liable. Further, the Judgment Fund is available for the payment of a settlement only if "the cause ofaction that gave rise to the settlement could have resulted in a final money judgment." And, relatedly, the Judgment Fund may not be used to pay for the settlement of claims that, if they resulted in a judgment against the government, would "impose costs on the government, but [would] not require the United States to make specific cash disbursements" to certain parties, such as a "judgment[] that required the United States to furnish subsidized housing, or that required the United States to correct structural defects in housing." These strictures ensure that the potential use of the Judgment Fund does not "encourage settlements that would not otherwise be in the interest of the United States."

OLC has cautioned that we should “not lightly attribute to Congress an intent to create a structure that might encourage settlements that would not be in the interest of the United States.”  Tapping the Judgment Fund to pay for settlements of non-adversarial litigation does that with a vengeance.

     When extravagant legal theories that defy logic and the Constitution seem too good to be true, they often are.

     @DavidASuper1 @DavidASuper.bsky.social