This Time Trump's DAMAGE Will Be Permanent | Shield of the Republic
by Eliot A. Cohen and Eric Edelman
The Bulwark
Feb 16, 2025 Shield of the Republic Podcast
Eric and Eliot try to parse the fire hose of news emanating from the Trump Administration. They discuss Eliot's Atlantic article on the American antecedents and causes of Trump's ascendancy and whether there is still some point in looking at the European autocrats like Viktor Orban on whom some Trumpists model themselves, as well as Ruy Texeira's article in the Free Press arguing that defending USAID is not the hill to die on for Democrats. They also discuss Richard Danzig's Washington Post article on how Elon Musk's DOGE might constructively help reform DoD's broken and dysfunctional acquisition process. They discuss the problems with Trump's Gaza proposal as well as the fact that it highlights how all other approaches to the issue of Gaza's relations with Israel have heretofore failed. They discuss Trump's executive order on Iran as well as General Keith Kellogg's preparations for negotiations to end the war in Ukraine and Trump's offer to resettle White Afrikaaners who have been disadvantaged by majority rule in South Africa.
Transcript
have you had any of those conversations which begin with somebody saying look I
really hate Trump but
no I have not had any of those [Music]
conversations welcome to Shield of the Republic a podcast sponsored by the bullwark and the Miller Center of public
affairs at the University of Virginia I'm Eric Edelman and I am a non-resident fellow at the
Miller Center and a contributor to the bullwark and I'm joined from sunny I
hope espia by my partner in all things strategy Grand and not so Grand Elliot
Cohen who is professor emeritus of strategy at the Johns Hopkins University
School of advanced international studies and a contributing writer for the uh
Atlantic Elliot how how is P oh you know I mean after a while the
unremitting sunshine the temperature at you know about 60 the thick hot
chocolate the the Cherry the oranges I mean it wears on you after a while you know I I can imag I can imagine way
how's how's the weather where you are it's actually sunny right now although
it's about to I we're about to enter into several days of uh possible snow
storms so you you know um I I I will be thinking of you and the Sun and you know
sipping tempero and um and trying not to feel too jealous well actually we're
flying back into that so I I I hope we'll be able to make it so
plenty of stuff uh to discuss um uh Eric as as usual I will be faintly less
pessimistic than you are but that's a really low bar so why don't you just
start with your dark visions of how the world is getting you know just really about to go off the
cliff um yeah look I I I I think that you know um we're in a very dangerous
place right now um but look you you had a piece in the Atlantic I wanted to start us off on which uh basically said
look all these people like me uh have been comparing Trump to various authoritarians around the
world whether it's Putin whether it's Victor Orban or my personal favorite reie Ty erdogan in Turkey um and that uh
your point was that Trump is a very American phenomenon and there are plenty of antecedants in America for for Trump
you know Andrew Jackson um you know father cogin uh you know various uh
demagogues uh at the turn of the in the turn of the century South in the United States which I spent some of my misspent
youth as a graduate student actually studying um and and of course Eugene I
mean not Eugene I'm sorry uh Joseph McCarthy and um and I certainly agree
with the latter in particular I mean I think there is a lot of uh you know
McCarthyism in in trumpism and there's also kind of a you know a
genealogical uh element there because of course McCarthy's um emmanu Roy Cohen was also
sort of uh Trump's consiliary early in his career as a New York real estate
developer so I I guess I you know I'm I happy to concede the point that there are plenty of American antecedants I
guess what I would would just say is though I think that we should bear in mind that that while that is certainly
true some of these comparisons to uh you know European autocrats are
you know also still important to keep in mind in part because uh some of these
people like vice president Vance Have You Know spoken about their enormous admiration for Victor
orbon um there was um you know Vance was just quoting uh uh Harvard law professor
Adam verule who uh was tweeting about why we should disregard the decisions of
Judges ver mule like like Vance is a kind of wants a kind kind of Catholic
theocracy um you know there's there's some other antecedants there I mean the
Neo reactionary movement that Curtis yarvin uh you know has written about a
lot of that is rooted in this sort of kind of weird anarcho fascist Phenomenon
with Murray rothbard writing about um his admiration for musolini I you know
there just a lot of elements there and just over the week and you know the fact that um president Trump stripped Mark
Zade who's a lawyer does National Security work in DC on security clearances a lot of our former students
have actually used his services and when dealing with some complicated you know
clearance issues uh had his clearance stripped because he's been suing uh the
Trump Administration and watching him go after lawyers that's a very you know
Putin likee step so anyway I I I just see you know uh elements of both here so
so in what I suspect is going to be a series of attempts by made to explain
myself um let me push um so you know on the one hand I I
think there is some sort of there's some commonality with things that are happening elsewhere in the west which is
a general kind of revulsion against let's call them liberal Elites
but Mo I guess most broadly I would say you know that what what is the what is our task now obviously if there are
particular things that are going that we think are bad that we can fight we should fight them but I think the task
for intellectuals first figure out well how do we get here why is it that we're in the circumstance that we're in and I
really don't think comparisons with musolini or Victor Orban or any of these people
is of any use whatsoever I mean there
there has been a particular um I think kind of cultural evolution in the United
States um there's a particular history in the United States I I think certainly there a way of think about our future
it's crazy because you're dealing with countries that are completely different histories in the United States you know
you begin talking about viar Germany or even you know orban's Hungary places you
know Hungary traumatized by 50 years under the Russian boot bimar Germany
having gone through World War I um you know Turkey having always had
this conservative large conservative religious population that rebelled against the hypers secularism of OT Turk
none of these analogies are helpful in understanding why we are where we are
which I think is really the first thing that that is of importance and I think the smartest
Democrats understand that as I said I can see that there are some
elements of commonality here in what are the underlying phenomena but I think there's as I point out in the article
there's some very big differences between what the Trump people are trying to do and what you see
other autocrats doing one is um Al although on the one hand you're
quite right Trump wants to expand executive power in ways that are illegitimate and dangerous on the whole
the Enterprise is an attempt to destroy the government it's not to make it
stronger it it is you know to dismantle agencies not to create them and I think
that's actually quite significant I point to some other very to my mind very
substantial differences I I also think that um although I agree with you we're
in a we're in a dangerous time you know sooner in some ways than I
expected we're going to begin to see whether the rails will hold particularly if they decide simply to disregard court
orders now that it seems to me those will a lot of the things we're talking about ending Birthright citizenship or
even deciding you know trying to decide the federal govern that the executive branch can decide not to spend money that Congress is appropriate that's
going to end up at the Supreme Court I think all of those and we'll see um I
actually think it's a mistake to think that this Supreme Court will go along with that you know I I mean as I point
out in the article the the justices who've been most trumpy if that's a word
have been Alo and to some extent Clarence Thomas I
I don't think the others are going to go along with that and I also think that uh
you know the fact is this was a 50-50 kind of election although Trump is has
gotten a bit is to some extent popular because people like the idea of not spending money on Farm grenade and you
know taking down Dei and and stuff like that um I don't think that a lot of what
they're doing is very popular and it's not going to be popular um you know you stop spending money you know farmers are
getting upset tariffs are not going to do any good whatsoever for their own um
people so I I just think you know the laws of gravity are going to operate that's not I'm not trying to downplay
the dangers because I think the dangers are are real but but I I do think that
we make a mistake first by really whipping ourselves into a frenzy because they like that among other things but
but I also think just in terms of diagnosis and long-term repair to the
system you know what we need to do is we need to look as I say at the end of the the article we need to look at ourselves
in the mirror rather than look out the window and and in a certain way I I have to say I I feel that the analogy to the
orbons and the uh let alone to the molinis and then you know the argument at Hitler is
always a sign that you've you know you've run out of arguments it it's actually an excuse for inaction because
you say oh my God oh my God All Is Lost there's nothing we can do it's terrible
and okay all you're left with is reaching for the cyanide pills U as opposed to saying no maybe actually some
of the things that we did helped lead to this situation and maybe they're concrete things we can do to help fix it
I mean there's I I you know as I think I said very early on after the election if
there's one thing that I think is a mistake right now it's for people who are as opposed to this Administration as
you and I are is to get hysterical it's counterproductive and it just makes them happy yeah I agree look
I agree with a lot of what you said first of all but there are some areas that I I think I U have some minor
disagreements I agree that you know we need to look at
you know the United States to understand this phenomenon and and as I said the McCarthy phenomenon is probably the
closest in a lot of ways that we've come to this although there there elements of father cogin and and and and there's a
Jacksonian element you know as you argue as well
um I do think there's something you know to be gained from looking at the um you
know recent uh European uh uh experiences with some of this because as you say it is a global phenomenon and
some of the techniques and tactics that are being used are being either copied or borrowed from others and that's
important to understand not not least and this is maybe an area where I
disagree with you I agree they're trying to weaken the government but that doesn't mean that they're trying to weaken their own hold on power quite the
contrary of the the weakening of the government actually goes hand inand with
you know asserting their control and power over you know what in the in the
European context would be called the power Ministries and so you see these loyalty Oaths being um you know imposed
or or loyalty tests being imposed on people they're putting into um you know
into senior positions in the intelligence community and in in the uh
you know government um um National Security elements of the
government where people are being asked to it's you know orwellian you know you know the president said yesterday that
January 6th you know it was the people who were arrested who were being brutalized and people are now being
asked to say yes January 6 was an inside job if you want to be in the senior ranks of intelligence or elsewhere so
that is it is and it's outrageous it isn't change the fact that it's the states that are going to run
the elections not the federal government government it doesn't change the fact that you have a federal that you have a
federal system it doesn't change the fact that this guy is almost 80 years old and he is not you know despite kind
of joking to get People Like Us upset he's not going to run for a third term I
mean that you know I I I and I I think I really push back on the orbon and other
analogies because allo say is they they point out the things that we see are going on we don't we don't need the
analogies we don't need the analogy to Orban or erdogan to see what they're doing you could just have to read the
news but but the point of these analogies is Orban and erdogan have
succeeded and it's not part of a handbook of what do you do to unspool
this and what you need to be thinking about is how do we unspool this we we
know what's going on and we don't have to we can get it from our own papers yes it's a good point and I I mean actually
one of the other things I wanted to talk about was uh um article in the Free Press by ruie
tahara uh who's written a lot of very good stuff about you know how the Democrats ought to think about their
problems this article I had a lot little bit of a problem with as well I mean he he basically says don't fight and die on
the hill of us ID um and I kind of get that because what he's basically saying
is look this is the kind of political terrain that the Trump is want you to fight on because Americans don't like
foreign assistance they think you know they have got uh highly based on polling
data highly distorted ideas of how much we spend on foreign assistance uh you know it's one less
than 1% of the federal budget but they you know if you ask people in The Blind how much do you think we spend on you
know foreign assistance in the federal government they'll tell you 15% of the budget 25% of the budget it's very
outlandish so it's an easy target you know there's not a well there are some
domestic constituencies but there are weak domestic constituencies for this and I get the point that um you know
that fighting for uh you know you know to preserve
usaid is politically probably not the greatest ground for Dems to stand on
however I don't think that means we shouldn't object to it and I think there's a way to describe it and discuss
it that I think does get at some larger problems we talked a couple of weeks ago
about what you know we thought about the first few weeks or the first week or so of of trump and I said I thought the
thing that distinguished it was the lawlessness and the recklessness well this is an an area where this is you
know I'm perfectly happy as you know a former Ambassador who had Aid missions
in his embassies to say there are lots of things that you know we can talk about and debate about usid and
reforming it and there's an argument that I've made it myself that it should be in the state department not an
independent agency however there is a statute on the books passed by the Congress in the late 1990s that says it
is an independent agency and to have Elon Musk swoop in with a bunch of 22y
old um you know Mal you know maladjusted um you know incel white
supremacist you know computer nerds who know nothing about you know foreign assistance and have them you know not
doing any kind of review um you know not kind of deciding what
needs to be kept what needs what needs to be closed down and outside the normal budget process without any kind of you
know legal hook on it you know violating multiple laws um not just the law that
establishes usaid but the administrative procedures act the Privacy Act um you
know the foreign assistance act um you know I think there's plenty to push back on is because I don't think Americans
want their government to be run that way so I I I mean look I agree with that by the way it's not just Roy toer who I
agree with you I think is a very acute analyst who's been enormously frustrated at trying to get get the Democrats to
understand what just happened to them but also Rah Emanuel who I think is a very sophisticated politician and
internationally minded who also said this is not the hill to die on um you know I I don't have enough expertise on
domestic politics to know uh to know how to do that look I think think we're we're you know you and I are both kind
of instinctively revolted at the a lot of the foreign policy stuff more than most
people um I where I think we're probably in agreement unfortunately
is I think this stuff is not going to stop in some ways it's going to get worse and this time around unlike the
last time I think the damage to the to the nature of American Global Leadership
will be permanent and and you know but but the way I mean here maybe you know
you can call me a defeatist if you like but my view is okay so what's my job now
is it is there any chance we're going to reverse that no short of not just Trump
you know having uh a an aneurism but JD Vance
also having an aneurism um this is what the kind of stuff we're going to do Vance would be a
little bit smoother but I agree with you he's he's in some ways even more dangerous uh and he is in isolation
um so we're going to have to think out think about you know you know what
exactly is the Ned States going to do because there's a conundrum and you and I have talked about Michael beckley's
recent pieces in the Foreign Affairs which and you know we'll probably get them on on the show uh the United States
will remain probably prosperous and very powerful so what you know how will we
exert ourselves in the world but this is the final I I and here maybe I I do have
a dark view although I I don't know um I
this is the end of the world order that you and I grew up with and that you in particular grew up serving I did in a a
smaller way I you know I spent most of my career expounding it and it's
shocking to have it blown up in this respect though by the way I think
that Trump is partly cause and partly manifestation of deeper things I mean
that's the you know the more I think about this the more I'm I'm inclined to step back and say okay H how much of
this is the result of having had pretty awful leadership since at
least the Reagan Era um and how much of this is a result
of both parties including the party that you and I were part of being willing to
give the president Unholy amounts of power you know and I I mean I remember from our time in government you know the
the the view that people had of executive power which made me uneasy then and Obama ran with that and Biden
ran with that so now Trump's running with it some more I mean for example I think one of the biggest challenges we're going to face I'm I have no idea
whether we'll beet it or not is when the wreckage is cleared from this can we
create a system that puts more constraints on the president because I think that's really clearly
needed uh it's it's I think it's one of the most essential things that we need
to do as we think about our constitutional structur we need to find a way to reign in executive power well I
think we need to find a way to make the Constitutional structure work the way it was intended to work right which is that
the founders when they you designed uh the government and then explicated in
the Federal papers uh did not anticipate the rise of political parties they they anticipated
faction but they didn't anticipate political parties they certainly didn't
U anticipate the kind of uh polarized
political situation we have although they dealt with something close to it very early on in the Republic as we know
from our discussion with Lindsay trinsky um but what they counted on was and and
what got them through that period was people's attach institutional
attachments a triumphing over partisanship at some level and in other
words the Congress acted to offset powers of the executive or you know
Reign them in and that has been true more or less you know throughout our
government's history and right now we do we we we have a congress and and you
could make the argument I think as you have been making that Congress over a long period of time has been yielding power to the executive but um we now
have a Congress that is like willingly giving up its its power even though they
know it's being taken away and they kind of know it's not right yeah I I I agree
with that um look I think they but it's true the founders also thought that there were other things that would keep
the United States going part of it was simply it's great extent you know one of the big arguments that they have to make
is I mean when everybody thinks of democracy in 1776 they think oh Greek city states
those are really unstable tiny yeah and and or or they think well democracy yeah
of course it can work if if you know if it is a city state as unstable as they
are and part of the genius of the argument was that no actually you know you can create a republic which will be
and they called it an Empire um and that actually the extent of it
and the variety of the people in it and all that would help so let me let me
shift things a little bit and this is I'm walking on thin ice here but have
you had any of those conversations which begin with somebody saying look I really
hate Trump but no I have not had any of those
conversations well I'm sure you have so so do
tell you run in more close-minded circles than I do I'm absolutely sure of
it yeah well I no I have had some um and
they are over things like uh the end of Dei um which I think is actually you
know I'm signed up for that too uh I mean having having seen up close how those bureaucracies functioned
in the academic world um you know the kind of frontal assault on identity
politics that that's fine with me uh I will give the devil his due I
think on Gaza you know of course he characteristically blew blew himself up
but he I think he did actually get a deal which brought a few of the host Israeli hostages back
actually more by threatening Netanyahu than than uh Hamas because he doesn't
really have anything to threaten Hamas with um and you can even say that his
utterly outlandish you know wrongheaded uh inhumane immoral
illegal um War criming statement that well War crime okay you know take out
your thesaurus uh I'll mash it against mine um you know he's at least
recognizing the man magnitude of the problem that you have in Gaza which is you know as you and I have discussed you
know having seen that firsthand it is it is devastating you know it's interesting
that he said that economic sanctions on Russia are at three out of
10 uh in intensity and you know the other this is just a little thing um in
the clutching and straws Department we we just just flew a rivet joint
aircraft about 140 kilm from Crimea so rivet joint is a manned aircraft it's
our premium signals intelligence collector it's usually escorted by
fighter jets and I may be mistaken but I don't think we've done that since the
Invasion the Biden Administration was they at one point I think they even pulled back some of the unmanned systems
that we've been flying in kmia to have done that you know I suspect that that's
trying to muscle them a bit in any case I actually um I I've never thought that
they he was simply going to dump Ukraine um I think he may be some kind
of crazy you know he may have in mind some crazy deal with you know lithium and you
know rarus and stuff like that but um you know um he's he's been so far
he's been better on that than I I would have expected I mean again in in the uh I
love Trump but uh Department um I don't know if you saw this article by our
mutual friend Richard danig in the Washington Post so this former Secretary of the Navy in the Clinton
Administration uh I think it was Clinton administration saying yep well I I actually wouldn't mind if those Doge
people would you know tackle the Pentagon acquisition system so now of course I should just explain to our
listeners that my personal view is that Those whom the gods would make mad they first get interested in reforming the
defense Department's acquisition system but I know it's a subject that's near and dear to your heart Eric so perhaps
you could hold forth on that one so well let me let me start at the end there about Richard's article in the post
about you know Doge getting into um the um interstices of the Pentagon and
reforming the um much deservedly maligned procurement
system so um first Richard's a very smart guy um and very
thoughtful uh and I agree that um you know if there is one area where it would be helpful you know to to reform the
system uh it is in you know Pentagon procurement in fact that is the grain of
a lot of the um a lot of the recommendations we made
in the National defense strategy commission that I co-chaired with Jane Haron but I I worry though that about a
couple of things one is you know the president said the other day that you know doge is going to tackle DOD and
both he and uh Heth secretary Heth have said there's hundreds of billions of
dollars they're going to find in waste well having looked at this you know very
carefully not only in this commission but in its three predecessors uh and we had in one of the three
predecessor commissions uh all the really
um uh you know expert folks who've looked at this and who think there is
lots of money to be gained by reforming different elements of the Pentagon the
highest number we could get from any of them about okay what what what's the
order of magnitude of savings you're talking talking about here it was $150 billion over 10 years
yeah which is not what they're talking about it's not what they're talking about and and and um it it's not enough
to you know do what we need to do as a nation um you know even if you took all
those savings 15 billion a year and you know plowed them back into the the
building you know to to buy the kinds of things we would like to see them buy you know
Etc and that would be if you were doing a good faith effort you know I I don't have much confidence that uh you know
Elon who has um you know invade against the um the F35 for instance you know
look the F-35 is an aircraft that's got its limits on the other hand the Israelis have just proven how valuable
valuable an aircraft that is because it was the you know lead element and um the
very successful raid they launched after the October Iranian missile attack on on
Israel so you know I'm afraid he'll go after a lot of the wrong things I mean one of the reason they'll go after F-35
is because there's a big bucket of money there uh for procurement of F35 because it's a hundred million dollars a copy
and so they'll instead of saying look what we need to do is augment you know F35 with a lot of Cheaper atable systems
as the force is trying to do which is h i mean which is happening a lot of those programs are right there so that's
that's one thing but let me just let me just finish on that uh because the the
the other element of this is that um you can't break the system while you're
trying to you know uh reform it I mean I think that is a very bad you know
approach to doing this and that's what you know elon's approach is and then finally the man is
massively conflicted I mean he he's got you know billions of dollars in SpaceX
contracts with elements of the Department of Defense and the intelligence Community how how is that
not going to end up being a you know conflict of interest that is you know which only he can resolve according to
the White House I'll get back to you on on you know um you know the statesmanship in Gaza and Ukraine in a
minute but go ahead no I I I I guess you know what strikes me what strick me
about the piece uh as you say Richard is a very smart very thoughtful guy there's
no question where his heart is he's a sort of a center Democrat and it's it's an echo of
something that I heard the first time that Trump ran in 2015 from very sophisticated
professional I knew was a doctor not a not in our world so well you know maybe it's about time
that somebody shook things up and and you know it is curious that that I me in
a way that was I mean Richard was wrote a much more sophisticated version of
that argument but but there was an argument there that you know things really need shaking up and and I think
that is part of what is carrying Trump along that an enormous number of people
want to see things shaken up and you know as I was saying you know
I I I think it behooves us to understand well what did they want to have shaken up and and why the somebody else who
wrote I thought a very good piece about this was Tyler Cowan this you know very interesting polymath um at George Mason
who said that he thinks that you know what what Trump really cracked was that this is basically about
a cultural conflict and that so many of the things he does are in way sending signals
about um sort of a pretty large and deep culture War over a whole range of issues
and that's what people like about him and that's the source of his appeal you
know I'm sure there's more to with than that but but I thought that that's there's a lot to be said for that interpretation I I do want to get us to
talk about fore policy though because I mean here it I in some ways I am baffled
you know like on Gaza for example I I think it's indisputable he recognizes the magnitude of the problem Gaza is a
complete and total wreck two-state solution is really not in the cards
anytime in the foreseeable future um but then he has a completely
crazy idea we're going to move all the Gins out to Saudi Arabia or puntland or
Egypt or Jordan and we're going to redevelop it and it is like you know the lunacy of his ideas about Greenland
about Panama about Canada and and it's they're so crazy
that they're self-destructive at a certain level um at least that's how it seems to
me and and so I I find it hard to understand what's going on there I mean because it at first I thought okay this
is just him sort of flim flamming people distracting them getting them off balance trolling them but now there's a
piece of me no he actually may be serious about some of this but what's your view so my experience with you know
um elected you know senior officials presidents vice presidents Etc is that
when they get there um they don't change you know who they are they they become
more of what they've always been and in Trump's case the man's formative experiences have been as a real estate
developer and he sees the world through that lens and it's location location
location um and I think he's dead serious about all of this um you know as as U I've
thought that since the beginning um this is as Justin Trudeau has you
know said you know um on on a you know hot mic privately he thought um
you know um Trump's serious about this he he thinks you know Canada should
become the 51st state and
um he uh Trump reiterated it uh to Brett Bear last night in his uh you know Super
Bowl pre Super Bowl interview um and uh same with Greenland and I
think now with Gaza I mean it it is kind of uh you know crazy I me because he first of all he's his staff are telling
everybody well we're not going to spend any American money on this or put boots on the ground but he's saying we're
going to buy it and own it and you know then rebuild it and he he says well I haven't decided whether I'm going to put
boots on the ground well if he actually bought it which I mean I don't even know how you would do that but um he would
have to put boots on the ground because there's no other way to secure it so um
and already I think there are some you know uh Ram ifications to all this I'm I'm sure this is all pulsing through
jihadist uh you know networks online for recruiting uh
purposes um you look I think he thinks the path to Greatness his path you know
not only to a Nobel Peace Prize but to Mount Rushmore is to you double the size
of the United States the way you know Thomas Jefferson did with the Jeff with the Louisiana
Purchase and um you know I think his staff is going to spend the rest of
their four years trying to you know maneuver this into something where they
can actually you know find use in it and yes as you say I mean what he said is
about Gaza is um you know a recognition of how you
know you know completely everything else that's been tried there has failed you know okay fair enough um but the people
who've been most pleased by this is you know the extrem rightwing in Israel who
think this is just great because they're committed to removing the Palestinian population Ergo that you know no problem
after that yeah no I agree um How likely
do you think it is that he will actually get us into a war well you mean
inadvertently or advertently I mean I I think actually he uh is you know
very um disinclined to use military force um and we've seen that in his
first term and you've seen it in the comments he made when he signed the executive order on Iran you know he made
made a point that um you know he
um you would much prefer to negotiate and have a deal with Iran than to go
down any of the military paths and he's also tweeted or truthed on Truth social
that um that the reports that the US and and Israel are going to collaborate in
bombing Iran into Smither as he said are greatly exaggerated now of course that
that formulation you know leaves open the possibility may be exaggerated but at least they've been discussions going
on so you know it's not a not a completely happy message for the supreme
leader but um but I think he's very reluctant to do that what what I do
think Could Happen though is we could get into a conflict because of misperceptions and uh miscommunication I
think that is very you know there's a huge potential for that and in particular I worry that a lot of the
back and forth and the tariffs and the alienating of allies and whatnot could come back to roost uh if xianping
decides he wants to you know U that he wakes up and decides this is the day he wants to reunify uh China and bring
Taiwan back into the fold yeah I I mean I I agreee with that and I look do
think uh I I have always thought and maybe I'm just clinging to this that we
will make it through this period which will be disruptive which I think will actually
yield some positive things but mainly is quite negative I mean if we strengthen
our constitutional system if we kind of Escape identity politics bunch of other things would be
good but I just think the international wreckage is going to be
terrible uh and I don't and I think um it's going to it is going to be
a real challenge how do you think about you know how does American conduct itself in a world where people really no
longer trust our leadership and they no longer uh give us any kind of moral
Authority I mean now you know truth is people have always exaggerated the extent to which you know people than
Americans thought of us as a uh beacon on a hill
um but still we did have a certain moral Authority and this guy is blowing it and
in some ways once and for all because you know the first time around you could say it was an accident nobody knew
second time around you can't say any of this is an accident you know we we clearly knew what we were doing and we
gave him a conclusive Victory you know I think uh
that is certainly one you know possible world that we may be you know moving
into um perhaps the most likely one on the other hand you know you mentioned
Michael Beckley and I I we do need to get Michael on I mean he is he has been writing for some time about
um he wrote a book called unrivaled and he's written for some time in a vein that I you know wrote about earlier
about with regard to us um Primacy and and uh the way it's being
contested now and he basically argues that you know the United States Still Remains exceptional
economically uh it still has enormous you know sources of power that nobody else has in the International
System um it's you know ironic that his article appeared roughly around the same
time that Marco Rubio said oh you know we got to get over it we're not you know not not living in a unipolar world
anymore more which is fair enough but you know Marco makes it sound like we're now back in the 19th century you know
and it's just competing imperialism um so I I kind of take all
that you know but you know look one thing that's Remains the case I
think uh our allies whether in Asia or in Europe have great difficulty
organizing anything themselves yes we have been the convening power and the
organizing power and I think if we get an admin and one of the Biden administration's great strengths
actually and you know God knows you've heard me criticize them for the last four years but one of their great
strengths was um you know doing a pretty good job of organizing the Allies to
provide assistance to Ukraine even if it wasn't enough or fast enough and we have criticism of that um but also the Asian
allies you know in terms of OAS and the quad and various other things at trilateral with uh Japan and and the
Republic of Korea so you know we uniquely can provide the organizing organizing framework for all that
because of our military and economic Global reach no one else can do it so I
you know I think if you provide that service again in the future there's a chance that maybe you bring some will
never be you know all the way back but you can bring a lot of the sort of authority and you know gravitas of the
US in the system back I think so let me both agree and disagree you know I think
the it'll be easier in Asia where the I think the Asian states have always had a very transactional they they can deal
with the transactional United States um for the Europeans it's harder
they've got their own set of challenges but I think
um so you know look one of the minor transgressions but still a pretty severe
transgression of this Administration is Trump Delights in taking away the security clearances of everybody from
Joe Biden to Jake Sullivan to Tony blink and he hasn't gotten around to you yet but I'm sure you're on the list um and
it's at one level people might say well that's doesn't really make a difference well actually for some people it makes a
financial difference because it means you can't sit on you know corporate boards uh that that do business with the
government but there's a deeper thing which is you know we were able to navigate our
way through World War II up to the very recent past by having a foreign policy National
Security Elite which was more or less bipartisan where people spoke with each
other people were at least superficially polite with each other uh you know we've all been at
those kinds of gatherings and we all complain about them but you know at the end of the day it's it that was a good
thing I find it inconceivable that when the Democrats come back that there won't be
payback I mean I I I would suspect you know Mike Walt should not expect to keep
his net his security clearances one day longer than a republican Administration
and certainly most of the staffers the you know the under secretaries the assistant secretaries many of whom
really are trumpers uh through and through they're going to find out that the wheel
turns and uh uh they will have made themselves sufficiently unpleasant in a
variety of ways that everybody say yeah that's right you know strip them of their clearances plus there'll be a
whole generation of missing normal Republican foreign policy
National Security people and we both know people who are say in their 40s now
who should be in responsible position positions in government getting groomed
you know for the really uh big jobs uh by having an early go for it well that
that's not happening because you know as I said in an earlier article and as you pointed out in order to get into this
Administration you have to lie you have to say that Trump won um in 2020 and that January 6 wasn't
a insurrectionary riot so that I I think in some way and I
I you know this will sound snoody but societies need Elites and for
sure um if you're talking about something as large and complex as the foreign policy of the United
States you need a cohesive Elite where there's certain shared assumptions and
there's a certain kind of Comedy um and you know you and I have both experienced it uh you know say
somebody like mine Albright was always very gracious to me okay it really didn't make a difference
I think that I was a republican although she did offer to throw a party if I became a Democrat
um but we won't have that and I guess I feel that's consequential don't you I do
and I think I think what they've done is very shortsighted um you know there may well
come a time where they're going to want to consult with people about some problems that they've got where it would be very helpful to them to have a little
bit of bipartisan support and you they've just poisoned the well they've made it
impossible for them I mean as you know there you know there any number of times
in the government where you're confronted with these you know what what um one of my former bosses who was a
secretary of defense said you know most of the decisions that come here are you know if they get to your level My Level
he said they're 51 49 you know go either way you know they're hard the hard ones
um there are times when you've got to make hard decisions and it may not be clear to people outside the government why you're doing
what you're doing and and you need to bring them in and show them um you know
as uh as happened for instance during the Cuban Missile Crisis you know Etc so
um I think it's very shortsighted I think it's you know bad governance you
know frankly um I I always made sure when I was under secretary that you know for
instance Walt slokum who was one of my Democratic predecessors that he you know remained a consultant to the
office of the Secretary of Defense under secretary defense for policy so we could bring him in and have him talk about
stuff K Kennedy made a point of Consulting with Eisenhower yeah uh
Kissinger and Nixon made a point of keeping Johnson thoroughly briefed on what was going on it was just
understood that that's right that's how you behave I I wasn't surprised that you
know Trump uh you know cut Biden off from uh intelligence briefings after all
Biden had done that to him you know in the aftermath of January
6th um I'm sure on the assumption that Trump was you know finished
politically um I was surprised to see them do it to blinkin and and um and Jake Sullivan you
know because that was to me is just gratuitous yeah it's and now what I can't figure out is whether all this is
somehow linked to his sense that he was persecuted over that Russian dossier and
that these guys were part of it or if it's just a kind of a part of a larger plan to really cut off anybody who
disagrees with him um well it's a tool he thinks he has I
think that he can wield because the president does have broad discretion I mean what's ironic about this is
you know you've got people who have devoted themselves to government service for many many years who have been
cleared you know through the normal process uh which is you know pretty exacting having you know gone through it
myself you know many you know over the years and but now You' got all sorts of
people who aren't cleared at all are just being given clearances willy-nilly who have uh connections to Russia
through telegram channels and companies they own and this that and the other thing and uh and these other people are
getting their clearances pulled I mean it's really um it's really appalling honestly
yeah well there'll be plenty to talk about I'm afraid um um I do want to get back
to Ukraine before we wrap up and we we are running short on time and and and there was one final issue I wanted to
touch on with you so on Ukraine we had um while you were vacationing in Spain
with your family we had um uh our SC colleague Eugene finlon talking about
his uh very good book on Russia and Ukraine I guess I'll repeat something I
said you know with Eugene about you know my kind of sense of uh kind of where
Trump is and it's informed a little bit by things that I heard last week from people
um so my sense is number one Trump has been repeatedly briefed by people that
Xin ping and but certainly Putin are trying to play him and then he needs to be careful not to be played because I
think those people rightly understand that Trump does not like the idea that he's
being played by anybody um and that's probably a useful thing uh he's also
been briefed I think extensively on uh Russia's weaknesses
economically and his comments clearly reflect the fact that he is in you know internalized that and that um if there's
anything he understands it's leverage and that you know this is something that gives him leverage with with Putin and
that's all to the good um he's also
internalized um what um was in uh a very
good oped by our friend General Jack Keane and Mark T of of AEI in the post a couple of
weeks ago which was that you know additional Aid to Ukraine can and should be provided collateralized by Future
access to Ukrainian uh raw materials whether it's oil and gas or Rare Earth minerals about
you know of which uh Ukraine has you know quite a bit um and
you know that's also in been part of uh zelinsky's Victory plan it's something I
think zalinsky talked to him about when they met in the fall and zilinsky just reiterated it uh in an interview he gave
with Reuters over over the weekend that is all to the good
um what I worry about is when you hear you know General Kellogg talk about this
it also is mixed in with other things like uh well first we have to have
elections in Ukraine you know because they haven't had them because Ukraine's under martial law and then we can get
down to the business of negotiating and so a lot is going to depend on how these various steps get sequenced like
additional sanctions elections in Ukraine ceasefire
negotiations Etc and I worry a little bit um I'm not sure how well they've
thought through the sequencing of all this and I worry a little bit that there will be there certainly going to be some
in the administration who just want to get rid of this problem and therefore their idea is going to be let's you know
let's elect a Putin friendly government in keev and then you know we'll negotiate and problem
solved yeah I think maybe although I you know my reading of this uh for what it's worth is I think uh Trump really wants
the Nobel Peace Prize think he he has to be irritated that Obama got it after was
it like four days and off office or something um and I agree with absolutely with you
know your assessment of his disl being played I think that he thinks the Russians are weak I think he he is aware
of how people have always described his relationship to Putin and he's going to show them that they're wrong uh the
Russians are weak you know they have not been able to make uh advances the ukrainians have
actually taken a bit more out of KK um there's actually a l lot of indications that economically they're in
trouble one thing that's quite interesting is the Russians are are putting on this kind of big uh information Blitz to tell everybody that
their economy is doing just great and actually I was on another TV show with a
Russian immigrate so to speak who was basically trying to say no no no the Russian economy is very strong and I you
know it doesn't make any sense to me um
I do think he wants to he's going to go for a big deal I I think it is such an intricate intricate problem in some ways
I don't think any sequencing would you know make a huge difference I do think
what's going to happen is he'll try he I think he has a vision of how of how this
thing ends basically ceasefire in place uh policed by the Europeans but with an
American guarantee uh that's sort of in the background and you know various other
things um I think Russ Putin doesn't want that
uh I don't know that he's been brought around so I think actually what we're likely to see is that we muscle the
Russians uh I think the rivet joint thing was a signal uh at least partly
because we haven't we really haven't done that in a long time and it's it's saying you know don't you dare try
anything and I think the sanctions talk was revealing too so I would not be at all surprised if we ratchet that stuff
up and I don't know whether Putin will back down over those things
because as imperfect as Donald Trump's grip of the world is I'm not sure
Vladimir Putin's is any better I mean I tend to think that he you know the information that he's getting makes him
think that he's still winning this war um so I think there this is actually
headed to some sort of some sort of crisis
How It Ends I I don't know although I think at the end of the day it will look something like a ceasefire in place and
you know security guarantees of some sort not NATO membership but a a Ukraine
that can develop and look given where we thought this was going to be it it's unsatisfactory it's
unfair um but given where we thought this was going to
be yeah I mean I I I find it hard to believe that Putin is
going to relent I mean I think he wants to just extrap Pate Ukraine and and I don't think he's accept anything less
but before we close out um I just had ask you one quick question about that
great and good Statesman Donald Trump um so you know Donald Trump has made it
clear that we're full up we can't take any more refugees we don't need any more immigration Etc but he just signed a
executive order um about South Africa and said oh we will take white South
Africans if they want to immigrate because they're being treated so poorly in um majority rule South Africa today
and I just just throwing that out there and wonder what your take is on that first I think a lot of this is Elon
Musk um you know his father and I think his grandfather actually had some
pretty um ugly connections and Views coming out of
uh right-wing africom um I
think you know look there is there is an issue of sort of how the africanas are
surviving in in South Africa as it is today but I think it's another example
of self harm and it's what goes back to why at the end of the day you know I
don't think this guy is nearly as clever as Orban I you know Orban is a very smart guy Orban reads lots of books I
actually met met him very early on when he was still supposed to be a good guy he's a very smart
fellow um I met him while he was transitioning into being a bad
guy only one half of the face was covered with scales and uh one-handed claws I I think um you
know look part of what he was part of what Trump was able to do was
to convince a lot of African-Americans that he was better for
them and that he wasn't a racist now is this you know of itself
going to turn things around no but it's an example of of being kind of Reckless about some of this stuff and not
thinking through you know how if if I do a a may lead to B and B will probably
lead to C and that leads to D is not a good thing for me I just don't think he he thinks that way and therefore I think
a lot of the people around him don't don't think that way I I you know I think in many ways a more significant
thing is he's deciding to have a bunch of tariff Wars with all kinds of people
which are going to hurt his voters or you know Elon Musk is going to go charging through and say oh we can cut
billions and billions and billions from Medicaid right right yeah we're 75
million Americans get their healthare yeah I mean I I look do I want
to put my faith uh for the future of the great Republic on Donald Trump's
infinite capacity for self harm no but but I think you know the the
worried listeners of Shield of the Republic can take some comfort in the fact that you know
he really does screw a lot of stuff up and you know as you say because presidents tend to become more of what
they were before he's going to screw more stuff up feel better well well you know um as
you say we we range all the way in our opinion on on children of the Republic from you know Gloom to to doom and this
week I think we've inclined more maybe a little bit to the Gloom side so you know
I you know I think you should take your victories where you can yeah okay I'll deal with that
that'll have to do it for this episode we'll be back next week
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Trump: I’ll Break Any Law I Want | MapQuest Resists “Gulf Of America” | Kennedy Center Dishonored
The Late Show with Stephen Colbert
Feb 17, 2025 #Colbert #Comedy #Monologue
Stephen employs a metaphor to explain President Trump’s tyrannical behavior over the past week, MapQuest is resisting the president’s order to rename the Gulf of Mexico, and we have a preview of the entertainment Trump has planned as he takes control of an esteemed American cultural institution.
Transcript
welcome welcome one and all to The Late
Show I'm your host stephen colbert. it's
good to be back with a week
off here. It is President's Day yeah
so to those who
celebrate,
why? when I was a kid probably some of
y'all when I was a kid on
President's Day we celebrated Washington
and Lincoln's birthdays, okay. Every
February we would hang our stockings and
wait for Abraham Lincoln
to fill them with wooden
teeth now we celebrate all the
presidents and Donald Trump is one of
them.
Now I
just I just took a week off and
while I was gone he did a
lot. And it's hard to figure out among
all the things he did which is the
most, the most -- which is the most of what
he did in each one of the things he did,
individually, which seemed so criminal, and so
catastrophic traic that sometimes you
you can't see the forest for the trees.
Jim, do we have a shot of the forest? yeah
there you go. There you go.
Okay I have another metaphor. I have a lot of
metaphors. I don't like them, but that's
all I have right now. For instance, I hear
a lot of people using the old metaphor
of the frogs and the slowly boiling
water, except I don't think that metaphor
really captures the situation that we're
in right now. Yes there is a pot, but
we're all frogs; we're all in the water;
and we know that it's going to boil, and
half of us are screaming, "Let's get out
of the pot!," and half of us are screaming,
"Crank up the heat; make the stove great
again!" And we say, "But wait, no, no, you're in
here too. You're going to boil." They go,
"Good, I don't care as long as you die
too." And the chef is leaning over the pot
saying, "Technically, none of you are being
boiled; you're being
poached. I'm going to adjust your legs; I'm
just going to take the legs, yeah, and
the meat is going to fall right off of
America's bones."
And the thing is, we're not the
only ones who know he's breaking the law,
so does he. Because if he didn't know
that, why this weekend would he post, "He
who saves his country does not violate
any law." That is wild! That
was a wild thing he did in a tweet. Do we have
video of him saying that?
No, no, no, no, Jim,
the current
president.
[Stephen Colbert] There you go. There -- that's him.
Now to be clear, Trump is
pre-announcing that he's going to break
any law he wants, to get whatever he
wants. Now I'm no revolutionary -- I can't
grow the beard -- but that is a tyrannical
Declaration of power! And as an American
Patriot, I just have to say, "The British
are coming; the British are coming."
Seriously, John Oliver is our guest
tonight. There you go. He can't grow the beard either -- they
can't throw the beard either.
And by the way, that Trump tweet, like
everything he does, is stolen from
someone else, right? The phrase, "He who
saves his country does not violate any
law," is attributed to Napoleon Bonapart,
although it is apparently a fake
quote. Yes, we all know what Napoleon
actually said,
He wrote that; he wrote that.
Trump does have some good qualities.
For instance, he's petty and vindictive.
Nope, sorry, that's bad again. But
remember that stupid thing where Trump
unilaterally renamed the Gulf of Mexico
the Gulf of America, and said now
everybody's going to say it like he says
it? Well, the Associated Press keeps
calling it the Gulf of Mexico, cuz that's
what it's called.
So on Friday, the AP were banned from
the Oval Office, and Air Force 1.
Indefinitely.
You can't get mad at the AP
for not using your stupid name! The thing
you should get mad at the AP about is
not using the Oxford comma in their
style guide, okay? And we all know what the
Oxford comma is. Say it with me: "it is the
comma before the final conjunction in a
list of three or more things." For
instance, if I invited Sam, Sally and Tom
to a party, without the Oxford comma in,
how do I know if Sally and Tom
are a couple? They're artificially
grouped together, okay? Or if
they're individual in a list
with Sam, Sally and Tom, Sam needs to
know -- he doesn't
know -- he needs to know if he can flirt
with Sally without Tom getting all weird
about it. Or does Sam have to get with
Sally and Tom together? Are they cool
with that, cuz Sam
is.
What I'm saying is, do you have any
idea how many thrumples have been destroyed
by the lack of an Oxford comma? I'm
looking at you AP, you sick, twisted,
and kink shaming freaks!?
come on now I'm losing
my voice we're one day back and I'm
losing my voice now a lot of online
Outlets out there have they've crumbled
under the Gulf of America pressure
including Google Apple and axios but
ladies and gentlemen A Lone Hero Stands
Tall because Map Quest continues to list
it as the dul of
Mexico yes
hell yeah pack up the Buick lasaber
we're going back to
1996 grab your collection of Beanie
Babies and get ready to dip Frost your
dunkaroos because MapQuest is showing us
The Shining path to Revolution and it is
an 8 page print out that you
accidentally did in full color and your
mom's going to kill you for it toner
doesn't grow on trees
Skyler now let's see this outrageous Act
of rebellion yeah baby
okay there it is now I want to believe I
deep in my heart I want to believe that
this stand they're taking is because of
the noble convictions of everyone at
mapquest. net no one
knows but it is possible that there
aren't enough people still working at
map quest to update
anything and I'm being told we have a
live feed of their headquarters right
now somebody's using Map Quest how to
get from Buffalo New York to Six Flags
Great Adventure okay buffalo buffalo
buffalo buffalo screw it i'm GNA use way
buffalo buffalo the important thing
ladies and gentlemen is is is not to
lose hope you got to take the Long View
whatever happens at least to have your
health okay about that.
[RFK omitted]
But in a time when lies
are the coin of the realm never forget
that we can take soless in the truth and
the beauty of the Arts
unfortunately Trump also knows that so
last week he named himself chairman of
the Kennedy Center for the Performing
Arts and will dictate all future
programming now there's a president
who's focused on what really matters
Elon you go fire anyone you want here's
everyone's Social Security numbers I got
to go pick the plays spoiler alert it's
all
cats we are going to make skimble Shanks
jelal
again and no I have no idea what any of
those words
mean Trump purged the Kennedy Center
Board of everyone appointed by President
Biden and replaced them with his own
political allies donors and their wives
including second lady usance well if her
husband has any input get ready to see
kiss me couch diddler on the poof and of
course the sound of meat pork in the
sofa
he never did any of that but I can lie
too come on now Trump declared
himself
I Trump uh Trump declaring himself
emperor of all culture did not sit well
with some of the artists a bunch of them
cut ties with the Kennedy Center and
canceled shows including actor and
writer iser producer Sean under rymes
and musician Ben Folds but Trump will
easily replace them with future Kennedy
Senator luminaries Kid Rock Kevin Sorbo
and
truckasaurus we got a great show for you
tonight my guest is John Oliver but when
we come back I call a family meeting
don't don't you go anywhere Young
[Music]
The Late Show with Stephen Colbert
Feb 17, 2025 #Colbert #Comedy #Monologue
Stephen employs a metaphor to explain President Trump’s tyrannical behavior over the past week, MapQuest is resisting the president’s order to rename the Gulf of Mexico, and we have a preview of the entertainment Trump has planned as he takes control of an esteemed American cultural institution.
Transcript
welcome welcome one and all to The Late
Show I'm your host stephen colbert. it's
good to be back with a week
off here. It is President's Day yeah
so to those who
celebrate,
why? when I was a kid probably some of
y'all when I was a kid on
President's Day we celebrated Washington
and Lincoln's birthdays, okay. Every
February we would hang our stockings and
wait for Abraham Lincoln
to fill them with wooden
teeth now we celebrate all the
presidents and Donald Trump is one of
them.
Now I
just I just took a week off and
while I was gone he did a
lot. And it's hard to figure out among
all the things he did which is the
most, the most -- which is the most of what
he did in each one of the things he did,
individually, which seemed so criminal, and so
catastrophic traic that sometimes you
you can't see the forest for the trees.
Jim, do we have a shot of the forest? yeah
there you go. There you go.
Okay I have another metaphor. I have a lot of
metaphors. I don't like them, but that's
all I have right now. For instance, I hear
a lot of people using the old metaphor
of the frogs and the slowly boiling
water, except I don't think that metaphor
really captures the situation that we're
in right now. Yes there is a pot, but
we're all frogs; we're all in the water;
and we know that it's going to boil, and
half of us are screaming, "Let's get out
of the pot!," and half of us are screaming,
"Crank up the heat; make the stove great
again!" And we say, "But wait, no, no, you're in
here too. You're going to boil." They go,
"Good, I don't care as long as you die
too." And the chef is leaning over the pot
saying, "Technically, none of you are being
boiled; you're being
poached. I'm going to adjust your legs; I'm
just going to take the legs, yeah, and
the meat is going to fall right off of
America's bones."
And the thing is, we're not the
only ones who know he's breaking the law,
so does he. Because if he didn't know
that, why this weekend would he post, "He
who saves his country does not violate
any law." That is wild! That
was a wild thing he did in a tweet. Do we have
video of him saying that?
[Richard Nixon] "When the president does it, that means
that it is not illegal."
No, no, no, no, Jim,
the current
president.
[Dennis Hoppe]] I'll fuck anything that
moves."
[Stephen Colbert] There you go. There -- that's him.
Now to be clear, Trump is
pre-announcing that he's going to break
any law he wants, to get whatever he
wants. Now I'm no revolutionary -- I can't
grow the beard -- but that is a tyrannical
Declaration of power! And as an American
Patriot, I just have to say, "The British
are coming; the British are coming."
Seriously, John Oliver is our guest
tonight. There you go. He can't grow the beard either -- they
can't throw the beard either.
And by the way, that Trump tweet, like
everything he does, is stolen from
someone else, right? The phrase, "He who
saves his country does not violate any
law," is attributed to Napoleon Bonapart,
although it is apparently a fake
quote. Yes, we all know what Napoleon
actually said,
[Singing] "Waterloo!
Couldn't escape if I wanted to!
A-whoa. A-whoa.
A-whoa."
He wrote that; he wrote that.
Trump does have some good qualities.
For instance, he's petty and vindictive.
Nope, sorry, that's bad again. But
remember that stupid thing where Trump
unilaterally renamed the Gulf of Mexico
the Gulf of America, and said now
everybody's going to say it like he says
it? Well, the Associated Press keeps
calling it the Gulf of Mexico, cuz that's
what it's called.
So on Friday, the AP were banned from
the Oval Office, and Air Force 1.
Indefinitely.
You can't get mad at the AP
for not using your stupid name! The thing
you should get mad at the AP about is
not using the Oxford comma in their
style guide, okay? And we all know what the
Oxford comma is. Say it with me: "it is the
comma before the final conjunction in a
list of three or more things." For
instance, if I invited Sam, Sally and Tom
to a party, without the Oxford comma in,
how do I know if Sally and Tom
are a couple? They're artificially
grouped together, okay? Or if
they're individual in a list
with Sam, Sally and Tom, Sam needs to
know -- he doesn't
know -- he needs to know if he can flirt
with Sally without Tom getting all weird
about it. Or does Sam have to get with
Sally and Tom together? Are they cool
with that, cuz Sam
is.
What I'm saying is, do you have any
idea how many thrumples have been destroyed
by the lack of an Oxford comma? I'm
looking at you AP, you sick, twisted,
and kink shaming freaks!?
come on now I'm losing
my voice we're one day back and I'm
losing my voice now a lot of online
Outlets out there have they've crumbled
under the Gulf of America pressure
including Google Apple and axios but
ladies and gentlemen A Lone Hero Stands
Tall because Map Quest continues to list
it as the dul of
Mexico yes
hell yeah pack up the Buick lasaber
we're going back to
1996 grab your collection of Beanie
Babies and get ready to dip Frost your
dunkaroos because MapQuest is showing us
The Shining path to Revolution and it is
an 8 page print out that you
accidentally did in full color and your
mom's going to kill you for it toner
doesn't grow on trees
Skyler now let's see this outrageous Act
of rebellion yeah baby
okay there it is now I want to believe I
deep in my heart I want to believe that
this stand they're taking is because of
the noble convictions of everyone at
mapquest. net no one
knows but it is possible that there
aren't enough people still working at
map quest to update
anything and I'm being told we have a
live feed of their headquarters right
now somebody's using Map Quest how to
get from Buffalo New York to Six Flags
Great Adventure okay buffalo buffalo
buffalo buffalo screw it i'm GNA use way
buffalo buffalo the important thing
ladies and gentlemen is is is not to
lose hope you got to take the Long View
whatever happens at least to have your
health okay about that.
[RFK omitted]
But in a time when lies
are the coin of the realm never forget
that we can take soless in the truth and
the beauty of the Arts
unfortunately Trump also knows that so
last week he named himself chairman of
the Kennedy Center for the Performing
Arts and will dictate all future
programming now there's a president
who's focused on what really matters
Elon you go fire anyone you want here's
everyone's Social Security numbers I got
to go pick the plays spoiler alert it's
all
cats we are going to make skimble Shanks
jelal
again and no I have no idea what any of
those words
mean Trump purged the Kennedy Center
Board of everyone appointed by President
Biden and replaced them with his own
political allies donors and their wives
including second lady usance well if her
husband has any input get ready to see
kiss me couch diddler on the poof and of
course the sound of meat pork in the
sofa
he never did any of that but I can lie
too come on now Trump declared
himself
I Trump uh Trump declaring himself
emperor of all culture did not sit well
with some of the artists a bunch of them
cut ties with the Kennedy Center and
canceled shows including actor and
writer iser producer Sean under rymes
and musician Ben Folds but Trump will
easily replace them with future Kennedy
Senator luminaries Kid Rock Kevin Sorbo
and
truckasaurus we got a great show for you
tonight my guest is John Oliver but when
we come back I call a family meeting
don't don't you go anywhere Young
[Music]
- admin
- Site Admin
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Re: Anti-Anti-Nazi Barbarian Hordes are Knocking Down the Ga
by admin » Tue Feb 18, 2025 11:15 pm
Pennsylvania Gov. Josh Shapiro Sues Trump Administration To Release Over $3 Billion in Federal Funds
by Courtney Cohn
DemocracyDocket
February 13, 2025
https://www.democracydocket.com/news-al ... ral-funds/
Pennsylvania Gov. Josh Shapiro delivers his budget address for the 2025-26 fiscal year to a joint session of the state House and Senate at the Capitol, Tuesday, Feb. 4, 2025, in Harrisburg, Pa. (Matt Rourke/AP)
Pennsylvania Gov. Josh Shapiro (D) sued President Donald Trump’s administration Thursday to get them to unfreeze over $3 billion of federal funding allocated to his state’s agencies over the next several years.
Trump’s Office of Management and Budget issued a Jan. 27 memo announcing a funding freeze for federal government agencies and quickly rescinded the memo two days later. However, the administration clarified that the funding freeze was still in effect, pursuant to the previous executive orders Trump issued regarding federal department and agency spending.
In the following week, two federal judges in Rhode Island and Washington, D.C. granted requests for temporary restraining orders, which halted the funding freeze while litigation continues in the lawsuits.
“While multiple federal judges have ordered the Trump Administration to unfreeze this funding, access has not been restored, leaving my Administration with no choice but to pursue legal action to protect the interests of the Commonwealth and its residents,” Shapiro said in a Thursday statement.
The congressionally-approved funding to Pennsylvania helps agencies in “protecting public health, cutting energy costs, providing safe, clean drinking water, and creating jobs in rural communities,” Shapiro said.
He explained in the lawsuit that one grant program designates billions of dollars to Pennsylvania’s Department of Environmental Protection over the next 15 years to repair former mining sites because if left abandoned, they can cause sinkholes which can and have caused significant property damage and deaths.
Additionally, the funding is used to maintain over a dozen water treatment systems that deal with toxic runoff from abandoned mines. The department also has funding dedicated to plugging abandoned oil and gas wells, which create greenhouse gas emissions and could even cause explosions.
Two other grant programs each allocate $126 million to allow 28,000 low-income households to perform work on their homes to lower utility bills.
Shapiro said in the lawsuit that he and members of Pennsylvania’s agencies “have been working with federal partners and legislators to try to fully restore access to these funds,” but their efforts have been unsuccessful.
He argued that federal agencies have violated the Administrative Procedure Act because they “possess no authority to refuse to disburse funds authorized and appropriated by Congress and obligated to Pennsylvania agencies.”
Also, Shapiro claimed the Trump administration is not properly performing its constitutional duty to “take Care that the Laws be faithfully executed.” He argued the Executive Branch is not properly implementing spending bills passed by the Senate appropriating federal funds.
He asked a federal district court in Pennsylvania to block the Trump administration from “freezing, pausing, conditioning, or otherwise interfering with” federal funding dedicated to Pennsylvania agencies.
************************
Gov. Josh Shapiro sues Trump administration over federal funding freeze, alleging Pennsylvania hasn’t received $2 billion: The move comes after Republican Attorney General Dave Sunday declined to join other states in suing the administration over the federal funding freeze.
by Gillian McGoldrick
The Philadelphia Inquirer
Updated Feb. 13, 2025, 4:29 p.m. ET
Published Feb. 13, 2025, 11:36 a.m. ET
https://www.inquirer.com/news/pennsylva ... 50213.html
Speaker of the House Joanna McClinton (left) and Lt. Gov. Austin Davis (right) are seated behind Gov. Josh Shapiro as he delivers his third budget address to a joint session of the state House and Senate at the State Capitol Tuesday, Feb. 4, 2025. Tom Gralish / Staff Photographer
HARRISBURG — Gov. Josh Shapiro took the rare step Thursday of suing President Donald Trump’s administration over its alleged failure to disburse more than $2 billion in federal funds to Pennsylvania, calling the move illegal and unconstitutional in the wake of a federal court ordering the White House to restore the funding.
Shapiro, a Democrat and former state attorney general, filed the federal suit in his official capacity as governor of Pennsylvania — an action typically taken by the state’s top prosecutor. But Republican Attorney General Dave Sunday declined to take legal action regarding the funding freeze, instead delegating matters to Shapiro, who sued after weeks of working with Pennsylvania’s congressional delegation in Washington to try to restore the funds.
The lawsuit comes after Trump’s administration issued and then rescinded a temporary pause on federal financial assistance last month, sending state and local officials into a panic. Despite federal courts ordering the Trump administration to restore federal funds, state governments and nonprofits have reported they are still unable to access some federal grants that Congress had allocated.
“While multiple federal judges have ordered the Trump administration to unfreeze this funding, access has not been restored, leaving my administration with no choice but to pursue legal action to protect the interests of the commonwealth and its residents,” Shapiro said in a news release announcing the suit.
In the suit, Shapiro alleges that Pennsylvania has not been able to draw from several federal grant-funded programs in recent weeks, including projects to reclaim former mine lands, to plug abandoned wells, and to provide funding for energy-efficient projects for low-income families to reduce their utility bills.
The federal government has also restricted Pennsylvania’s access to $3.1 billion in funds obligated to the state for fiscal years 2022 to 2026, Shapiro asserts in the lawsuit, filed in U.S. District Court for the Eastern District of Pennsylvania. That includes $1.2 billion in congressionally appropriated funds the state was expecting to receive, and $900 million that is on hold during an undefined review process, the lawsuit says.
Approximately 40% of Pennsylvania’s annual spending comes from the federal government. Pennsylvania is already projected to spend more than it collects in revenue this year, with a budget shortfall of $4.5 billion, meaning that any cuts to federal funding would deepen that deficit.
Federal Government Contributes the Largest Share of Funds to Pennsylvania’s Budget. The federal government is expected to contribute $53 billion to Pennsylvania’s budget, or 40% of all funding, according to Gov. Shapiro’s proposed budget for fiscal 2025-26. Dollar figures are in billions.
Shapiro said Trump’s administration is breaking its contract with Pennsylvania by failing to release federal funds to the state, “and it’s my job as governor to protect Pennsylvania’s interests.”
Harrison Fields, a White House deputy press secretary, said in a statement that the Trump administration is ready to face Shapiro and other Democrats challenging Trump’s work in court.
“Radical Leftists can either choose to swim against the tide and reject the overwhelming will of the people, or they can get on board and work with President Trump to advance his wildly popular agenda,” Fields added.
Pa. Departments That Receive the Majority of Funding From the Federal Government. Pennsylvania's Department of Environmental Protection, one of the plaintiffs listed in the lawsuit filed by Gov. Josh Shapiro, receives 83% of its funding from the federal government, one of seven state departments that get a majority of its funding from Washington. The figures below are anticipated federal funds, in billions, as part of Shapiro's 2025-26 budget proposal. Table: John Duchneskie / Staff Artist Source: Gov. Josh Shapiro Budget in Brief, 2025-26
Shapiro, who served as Pennsylvania’s attorney general during Trump’s first term before he was sworn in as governor in 2023, is no stranger to suing Trump, and often joined other Democratic attorneys general in taking legal action against the first administration. Since Trump took office again in January, Democratic attorneys general, including New Jersey Attorney General Matthew Platkin, have similarly stepped in to sue over the administration’s many executive actions that they see as unconstitutional.
But Pennsylvania has notably stayed out of those lawsuits, with a new GOP attorney general who has a conservative view of the office and a chief priority of enforcing state laws.
Sunday, Pennsylvania’s Republican attorney general, who was sworn in last month, said in a statement that Shapiro requested that the attorney general’s office delegate the case to the governor after Sunday did not sue, as is allowed under state law. Sunday said his office granted the request because of Shapiro’s familiarity with the state agencies that have not received the disputed funds.
“My office is taking a deliberate and calculated approach in response to recent federal orders and actions,” Sunday added. “I am a firm believer in the Rule of Law, and that these matters will be resolved by the courts and that Pennsylvania will be incorporated in those court proceedings.”
Shapiro previously vowed to work with Trump but promised to challenge any efforts to infringe on residents’ rights. And his decision to step over Sunday to sue the Trump administration marks a significant development in how Shapiro will navigate a second Trump term.
While some Democrats, including Philadelphia State Sens. Vince Hughes and Christine Tartaglione, praised Shapiro’s suit, at least one Republican member of Pennsylvania’s congressional delegation criticized the move.
“The Trump administration’s funding pause is entirely legal and an absolutely necessary action to ensure taxpayer dollars serve America’s real priorities — not the left’s extreme agenda,” said U.S. Rep. Dan Meuser (R., Pa.), who told The Inquirer in December he was considering running for governor in 2026.
Shapiro did not sue Trump himself. Rather, the lawsuit names several secretaries of agencies that he alleges have failed to release funds to Pennsylvania, including the Environmental Protection Agency and the Department of Energy. The lawsuit also names Russell Vought, an architect of the controversial Project 2025 and the new secretary of the Office of Management and Budget, which originally issued the White House’s now-rescinded memorandum to freeze federal funds until they are reviewed to be in line with certain executive orders.
Shapiro is asking for a judge to rule that the Trump administration’s failure to release federal funds to the state is unconstitutional, to block the administration from doing so again, and to cover the state’s attorneys’ fees.
Gillian McGoldrick: I write about Pennsylvania's state government and how it impacts the lives of its residents.
by Courtney Cohn
DemocracyDocket
February 13, 2025
https://www.democracydocket.com/news-al ... ral-funds/
UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
JOSH SHAPIRO, IN HIS OFFICIAL CAPACITY AS GOVERNOR OF THE COMMONWEALTH OF PENNSYLVANIA; PENNSYLVANIA DEPARTMENT OF ENVIRONMENTAL PROTECTION; PENNSYLVANIA DEPARTMENT OF CONSERVATION AND NATURAL RESOURCES; PENNSYLVANIA DEPARTMENT OF TRANSPORTATION; AND PENNSYLVANIA DEPARTMENT OF COMMUNITY AND ECONOMIC DEVELOPMENT,
Plaintiffs,
v.
U.S. DEPARTMENT OF THE INTERIOR; DOUG BURGUM, IN HIS OFFICIAL CAPACITY AS SECRETARY OF THE U.S. DEPARTMENT OF THE INTERIOR; U.S. ENVIRONMENTAL PROTECTION AGENCY; LEE ZELDIN, IN HIS OFFICIAL CAPACITY AS ADMINISTRATOR OF THE U.S. ENVIRONMENTAL PROTECTION AGENCY; U.S. DEPARTMENT OF ENERGY; CHRIS WRIGHT, IN HIS OFFICIAL CAPACITY AS SECRETARY OF THE U.S. DEPARTMENT OF ENERGY; U.S. DEPARTMENT OF TRANSPORTATION; SEAN DUFFY, IN HIS OFFICIAL CAPACITY AS SECRETARY OF U.S. DEPARTMENT OF TRANSPORTATION; OFFICE OF MANAGEMENT AND BUDGET; AND RUSSELL VOUGHT, IN HIS OFFICIAL CAPACITY AS DIRECTOR OF OFFICE OF MANAGEMENT AND BUDGET,
Defendants.
Case No. 25-cv-763
Filed 02/13/25
COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF
Pennsylvania Gov. Josh Shapiro delivers his budget address for the 2025-26 fiscal year to a joint session of the state House and Senate at the Capitol, Tuesday, Feb. 4, 2025, in Harrisburg, Pa. (Matt Rourke/AP)
Pennsylvania Gov. Josh Shapiro (D) sued President Donald Trump’s administration Thursday to get them to unfreeze over $3 billion of federal funding allocated to his state’s agencies over the next several years.
Trump’s Office of Management and Budget issued a Jan. 27 memo announcing a funding freeze for federal government agencies and quickly rescinded the memo two days later. However, the administration clarified that the funding freeze was still in effect, pursuant to the previous executive orders Trump issued regarding federal department and agency spending.
In the following week, two federal judges in Rhode Island and Washington, D.C. granted requests for temporary restraining orders, which halted the funding freeze while litigation continues in the lawsuits.
“While multiple federal judges have ordered the Trump Administration to unfreeze this funding, access has not been restored, leaving my Administration with no choice but to pursue legal action to protect the interests of the Commonwealth and its residents,” Shapiro said in a Thursday statement.
The congressionally-approved funding to Pennsylvania helps agencies in “protecting public health, cutting energy costs, providing safe, clean drinking water, and creating jobs in rural communities,” Shapiro said.
He explained in the lawsuit that one grant program designates billions of dollars to Pennsylvania’s Department of Environmental Protection over the next 15 years to repair former mining sites because if left abandoned, they can cause sinkholes which can and have caused significant property damage and deaths.
Additionally, the funding is used to maintain over a dozen water treatment systems that deal with toxic runoff from abandoned mines. The department also has funding dedicated to plugging abandoned oil and gas wells, which create greenhouse gas emissions and could even cause explosions.
Two other grant programs each allocate $126 million to allow 28,000 low-income households to perform work on their homes to lower utility bills.
Shapiro said in the lawsuit that he and members of Pennsylvania’s agencies “have been working with federal partners and legislators to try to fully restore access to these funds,” but their efforts have been unsuccessful.
He argued that federal agencies have violated the Administrative Procedure Act because they “possess no authority to refuse to disburse funds authorized and appropriated by Congress and obligated to Pennsylvania agencies.”
Also, Shapiro claimed the Trump administration is not properly performing its constitutional duty to “take Care that the Laws be faithfully executed.” He argued the Executive Branch is not properly implementing spending bills passed by the Senate appropriating federal funds.
He asked a federal district court in Pennsylvania to block the Trump administration from “freezing, pausing, conditioning, or otherwise interfering with” federal funding dedicated to Pennsylvania agencies.
************************
Gov. Josh Shapiro sues Trump administration over federal funding freeze, alleging Pennsylvania hasn’t received $2 billion: The move comes after Republican Attorney General Dave Sunday declined to join other states in suing the administration over the federal funding freeze.
by Gillian McGoldrick
The Philadelphia Inquirer
Updated Feb. 13, 2025, 4:29 p.m. ET
Published Feb. 13, 2025, 11:36 a.m. ET
https://www.inquirer.com/news/pennsylva ... 50213.html
Speaker of the House Joanna McClinton (left) and Lt. Gov. Austin Davis (right) are seated behind Gov. Josh Shapiro as he delivers his third budget address to a joint session of the state House and Senate at the State Capitol Tuesday, Feb. 4, 2025. Tom Gralish / Staff Photographer
HARRISBURG — Gov. Josh Shapiro took the rare step Thursday of suing President Donald Trump’s administration over its alleged failure to disburse more than $2 billion in federal funds to Pennsylvania, calling the move illegal and unconstitutional in the wake of a federal court ordering the White House to restore the funding.
Shapiro, a Democrat and former state attorney general, filed the federal suit in his official capacity as governor of Pennsylvania — an action typically taken by the state’s top prosecutor. But Republican Attorney General Dave Sunday declined to take legal action regarding the funding freeze, instead delegating matters to Shapiro, who sued after weeks of working with Pennsylvania’s congressional delegation in Washington to try to restore the funds.
The lawsuit comes after Trump’s administration issued and then rescinded a temporary pause on federal financial assistance last month, sending state and local officials into a panic. Despite federal courts ordering the Trump administration to restore federal funds, state governments and nonprofits have reported they are still unable to access some federal grants that Congress had allocated.
“While multiple federal judges have ordered the Trump administration to unfreeze this funding, access has not been restored, leaving my administration with no choice but to pursue legal action to protect the interests of the commonwealth and its residents,” Shapiro said in a news release announcing the suit.
In the suit, Shapiro alleges that Pennsylvania has not been able to draw from several federal grant-funded programs in recent weeks, including projects to reclaim former mine lands, to plug abandoned wells, and to provide funding for energy-efficient projects for low-income families to reduce their utility bills.
The federal government has also restricted Pennsylvania’s access to $3.1 billion in funds obligated to the state for fiscal years 2022 to 2026, Shapiro asserts in the lawsuit, filed in U.S. District Court for the Eastern District of Pennsylvania. That includes $1.2 billion in congressionally appropriated funds the state was expecting to receive, and $900 million that is on hold during an undefined review process, the lawsuit says.
Approximately 40% of Pennsylvania’s annual spending comes from the federal government. Pennsylvania is already projected to spend more than it collects in revenue this year, with a budget shortfall of $4.5 billion, meaning that any cuts to federal funding would deepen that deficit.
Federal Government Contributes the Largest Share of Funds to Pennsylvania’s Budget. The federal government is expected to contribute $53 billion to Pennsylvania’s budget, or 40% of all funding, according to Gov. Shapiro’s proposed budget for fiscal 2025-26. Dollar figures are in billions.
Shapiro said Trump’s administration is breaking its contract with Pennsylvania by failing to release federal funds to the state, “and it’s my job as governor to protect Pennsylvania’s interests.”
Harrison Fields, a White House deputy press secretary, said in a statement that the Trump administration is ready to face Shapiro and other Democrats challenging Trump’s work in court.
“Radical Leftists can either choose to swim against the tide and reject the overwhelming will of the people, or they can get on board and work with President Trump to advance his wildly popular agenda,” Fields added.
Pa. Departments That Receive the Majority of Funding From the Federal Government. Pennsylvania's Department of Environmental Protection, one of the plaintiffs listed in the lawsuit filed by Gov. Josh Shapiro, receives 83% of its funding from the federal government, one of seven state departments that get a majority of its funding from Washington. The figures below are anticipated federal funds, in billions, as part of Shapiro's 2025-26 budget proposal. Table: John Duchneskie / Staff Artist Source: Gov. Josh Shapiro Budget in Brief, 2025-26
Shapiro, who served as Pennsylvania’s attorney general during Trump’s first term before he was sworn in as governor in 2023, is no stranger to suing Trump, and often joined other Democratic attorneys general in taking legal action against the first administration. Since Trump took office again in January, Democratic attorneys general, including New Jersey Attorney General Matthew Platkin, have similarly stepped in to sue over the administration’s many executive actions that they see as unconstitutional.
But Pennsylvania has notably stayed out of those lawsuits, with a new GOP attorney general who has a conservative view of the office and a chief priority of enforcing state laws.
Sunday, Pennsylvania’s Republican attorney general, who was sworn in last month, said in a statement that Shapiro requested that the attorney general’s office delegate the case to the governor after Sunday did not sue, as is allowed under state law. Sunday said his office granted the request because of Shapiro’s familiarity with the state agencies that have not received the disputed funds.
“My office is taking a deliberate and calculated approach in response to recent federal orders and actions,” Sunday added. “I am a firm believer in the Rule of Law, and that these matters will be resolved by the courts and that Pennsylvania will be incorporated in those court proceedings.”
Shapiro previously vowed to work with Trump but promised to challenge any efforts to infringe on residents’ rights. And his decision to step over Sunday to sue the Trump administration marks a significant development in how Shapiro will navigate a second Trump term.
While some Democrats, including Philadelphia State Sens. Vince Hughes and Christine Tartaglione, praised Shapiro’s suit, at least one Republican member of Pennsylvania’s congressional delegation criticized the move.
“The Trump administration’s funding pause is entirely legal and an absolutely necessary action to ensure taxpayer dollars serve America’s real priorities — not the left’s extreme agenda,” said U.S. Rep. Dan Meuser (R., Pa.), who told The Inquirer in December he was considering running for governor in 2026.
Shapiro did not sue Trump himself. Rather, the lawsuit names several secretaries of agencies that he alleges have failed to release funds to Pennsylvania, including the Environmental Protection Agency and the Department of Energy. The lawsuit also names Russell Vought, an architect of the controversial Project 2025 and the new secretary of the Office of Management and Budget, which originally issued the White House’s now-rescinded memorandum to freeze federal funds until they are reviewed to be in line with certain executive orders.
Shapiro is asking for a judge to rule that the Trump administration’s failure to release federal funds to the state is unconstitutional, to block the administration from doing so again, and to cover the state’s attorneys’ fees.
Gillian McGoldrick: I write about Pennsylvania's state government and how it impacts the lives of its residents.
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- Site Admin
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Re: Anti-Anti-Nazi Barbarian Hordes are Knocking Down the Ga
by admin » Tue Feb 18, 2025 11:53 pm
UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
JOSH SHAPIRO, IN HIS OFFICIAL CAPACITY AS GOVERNOR OF THE COMMONWEALTH OF PENNSYLVANIA; PENNSYLVANIA DEPARTMENT OF ENVIRONMENTAL PROTECTION; PENNSYLVANIA DEPARTMENT OF CONSERVATION AND NATURAL RESOURCES; PENNSYLVANIA DEPARTMENT OF TRANSPORTATION; AND PENNSYLVANIA DEPARTMENT OF COMMUNITY AND ECONOMIC DEVELOPMENT,
Plaintiffs,
v.
U.S. DEPARTMENT OF THE INTERIOR; DOUG BURGUM, IN HIS OFFICIAL CAPACITY AS SECRETARY OF THE U.S. DEPARTMENT OF THE INTERIOR; U.S. ENVIRONMENTAL PROTECTION AGENCY; LEE ZELDIN, IN HIS OFFICIAL CAPACITY AS ADMINISTRATOR OF THE U.S. ENVIRONMENTAL PROTECTION AGENCY; U.S. DEPARTMENT OF ENERGY; CHRIS WRIGHT, IN HIS OFFICIAL CAPACITY AS SECRETARY OF THE U.S. DEPARTMENT OF ENERGY; U.S. DEPARTMENT OF TRANSPORTATION; SEAN DUFFY, IN HIS OFFICIAL CAPACITY AS SECRETARY OF U.S. DEPARTMENT OF TRANSPORTATION; OFFICE OF MANAGEMENT AND BUDGET; AND RUSSELL VOUGHT, IN HIS OFFICIAL CAPACITY AS DIRECTOR OF OFFICE OF MANAGEMENT AND BUDGET,
Defendants.
Case No. 25-cv-763
Filed 02/13/25
COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF
INTRODUCTION
1. Congress has authorized and appropriated billions of dollars for programs that are currently being carried out across the Commonwealth of Pennsylvania. The Commonwealth’s executive branch relies on these funds to provide essential services to people across Pennsylvania.
2. For example, one current federal grant program provides Pennsylvania’s Department of Environmental Protection (PaDEP) more than $3 billion over 15 years to meet the multi-billion dollar need to repair abandoned mine lands (meaning former sites of ore and mineral mining) throughout Pennsylvania and the waterways impacted by those former mine sites. Abandoned mine lands can cause land to cave in, which can be—and in recent months has been—fatal. Proactively repairing abandoned mine lands and responding to emergencies they cause is a critical public safety service. This grant funding would allow for reclamation of around 24,000 acres of abandoned mine land, for construction or maintenance of 16 water treatment systems that deal with toxic runoff from abandoned mines, and for responding to about 60 emergency events per year.
3. PaDEP also currently has about $76 million of federal funding available to plug abandoned oil and gas wells, which are both a significant source of greenhouse gas emissions and possible sources of gas migrations that can cause explosions. That funding will allow the Commonwealth to plug over 500 abandoned wells.
4. Two more grant programs allocate about $126 million each to Pennsylvania for programs that will allow up to 28,000 low-income households to perform work on their homes that will lower their utility bills.
5. The Pennsylvania agencies that run these programs have entered into agreements with their federal partners that obligate those funds to Pennsylvania and define the terms of the money’s use.
6. Nevertheless, federal agencies are now unilaterally and arbitrarily suspending or restricting Commonwealth agencies’ access to the congressionally appropriated grant funds that that have been committed to them.
7. Since around January 27, 2025, federal agencies have restricted Pennsylvania agencies’ ability to access funding for grant programs that, in total, obligated over $3.1 billion to Pennsylvania for fiscal years 2022 to 2026. In addition to funding for the programs described above (and many more), these include around $800 million in funding authorized and appropriated for Pennsylvania to provide grants for investment in clean water infrastructure, nearly $400 for a program that would allow manufacturing and industrial companies throughout Pennsylvania to mitigate their greenhouse gas emissions, and tens of millions for a program that supports resilient and reliable electric service in rural communities.
8. Pennsylvania agencies have over $2.5 billion remaining under grant programs that are now suspended or for which reimbursement of authorized expenses now requires some federal agency review that is not contained within the terms of Congress’ statutes or any funding agreements, and which has not been described to Commonwealth agencies. Over $1 billion of the $2.5 billion of available money has already been obligated, including to subrecipients performing work under the various grants now at risk.
9. In addition, about $2.69 billion has been appropriated to Pennsylvania for fiscal years 2027 to 2037 for the currently suspended abandoned mine program. In all, then, federal agencies’ recent funding suspensions have jeopardized at least $5.5 billion that has been committed to Pennsylvania.
10. Governor Josh Shapiro and members of Pennsylvania’s agencies have been working with federal partners and legislators to try to fully restore access to these funds. Despite that work, and despite two temporary restraining orders requiring federal agencies to restore access to suspended funds, federal agencies continue to deny Pennsylvania agencies funding that they are entitled to receive.
11. So, Governor Shapiro and several Pennsylvania executive agencies now seek relief from the federal agencies’ flagrantly lawless actions.
12. Indeed, in executing the ongoing funding suspensions, federal agencies have asserted the power to suspend and restrict access to appropriated money without regard for whether they have any legal authority to do so. Rather, federal agencies have restricted Pennsylvania’s ability to use appropriated and obligated funds merely when agencies believe that President Trump dislikes the purpose of Congress’s appropriation.
13. Of course, no statute, regulation, or anything else gives any federal agency power to unilaterally refuse to spend congressionally appropriated funds that have already been committed to Pennsylvania merely because the agency (or even the President) has policy disagreements with the appropriations Congress has made.
14. Here, the federal agency defendants have not only exceeded any legitimate authority, but they have also suspended access to billions in funding without supplying a plausible explanation as to why certain funds are being suspended, giving any consideration to the harm their action would cause, or considering how Commonwealth agencies have relied on receiving that committed funding.
15. Unilaterally suspending funds as federal agencies have done also violates the U.S. Constitution. Nothing in the Constitution empowers agencies—nor the President—to arrogate to themselves the power to suspend states’ access to money that Congress appropriated or to impose new conditions on money already appropriated and obligated. In fact, the Constitution specifically requires otherwise.
16. Governor Shapiro and the Commonwealth agencies bring this action to restore law and order by preventing the federal agency defendants from violating statutes under which billions in federal funds have been authorized, appropriated, and obligated to Pennsylvania agencies. Clear and unequivocal judicial orders are necessary to remedy federal agencies’ unlawful conduct.
JURISDICTION AND VENUE
17. This Court has subject matter jurisdiction pursuant to 28 U.S.C. § 1331. Jurisdiction is also proper under the judicial review provisions of the Administrative Procedure Act. See 5 U.S.C. § 702.
18. Venue is proper in this district under 28 U.S.C. § 1391(b)(2), (e)(1). Defendants are United States agencies or officers sued in their official capacities. A substantial part of the events giving rise to this Complaint occurred and continue to occur within this district.
PARTIES
A. Plaintiffs
19. Josh Shapiro is the Governor of Pennsylvania. He brings this case in his official capacity.
20. The Pennsylvania Constitution vests “[t]he supreme executive power” in the Governor. Pa. Const. art. IV, § 2.
21. The Governor oversees all executive agencies in Pennsylvania.
22. Pennsylvania Department of Environmental Protection (PaDEP) is an executive agency within the Commonwealth of Pennsylvania. 71 P.S. § 510-1.
23. The Pennsylvania Department of Conservation and Natural Resources (PaDCNR) is an executive agency within the Commonwealth of Pennsylvania. 71 P.S. § 1340.301.
24. The Pennsylvania Department of Community and Economic Development (PaDCED) is an executive agency within the Commonwealth of Pennsylvania. 71 P.S. § 1709.301.
25. The Pennsylvania Department of Transportation (PennDOT) is an executive agency within the Commonwealth of Pennsylvania. 71 P.S. § 511.
B. Defendants
26. Defendant U.S. Environmental Protection Agency (EPA) is an independent agency within the executive branch of the United States government.
27. Defendant Lee Zeldin is the Administrator of the EPA, and that agency’s highest ranking official. He is sued in his official capacity.
28. Defendant U.S. Department of the Interior (DOI) is a cabinet agency within the executive branch of the United States government. 43 U.S.C. § 1451.
29. Defendant Doug Burgum is the Secretary of DOI, and that agency’s highest ranking official. 43 U.S.C. § 1451. He is sued in his official capacity.
30. Defendant U.S. Department of Energy (DOE) is a cabinet agency within the executive branch of the United States government. 42 U.S.C. § 7131.
31. Defendant Chris Wright Kolb is the Secretary of DOE, and that agency’s highest ranking official. He is sued in his official capacity. 42 U.S.C. § 7131.
32. Defendant U.S. Department of Transportation (U.S. DOT) is a cabinet agency within the executive branch of the United States government. 49 U.S.C. § 102.
33. Defendant Sean Duffy is the Secretary of U.S. DOT, and that agency’s highest ranking official. He is sued in his official capacity. 49 U.S.C. § 102.
34. Defendant the Office of Management and Budget (OMB) is office within the Executive Office of the President. OMB is responsible for oversight of federal agencies’ performance and the administration of the federal budget. 31 U.S.C. § 501.
35. Defendant Russell Vought is the Director of OMB, and that agency’s highest ranking official. He is sued in his official capacity.
FACTS
36. Since taking office, President Trump and his Administration have issued a slew of directives that federal agencies immediately pause the disbursement of money that Congress has appropriated, and which in many cases has subsequently been obligated to Commonwealth agencies.
37. The various directives have been vague, beyond any statutory or constitutional authority, and the cause of immediate harm.
38. The agencies implementing these directives have done so arbitrarily and without authority.
A. President Trump’s Executive Orders
39. The day he was inaugurated, President Trump signed several executive orders (EOs).
40. Unleashing American Energy was among the day-one EOs.
41. In that order, the President directed that “All agencies shall immediately pause the disbursement of funds appropriated through the Inflation Reduction Act of 2022 (Public Law 117-169) or the Infrastructure Investment and Jobs Act (Public Law 117-58), including but not limited to funds for electric vehicle charging stations made available through the National Electric Vehicle Infrastructure Formula Program and the Charging and Fueling Infrastructure Discretionary Grant Program.” EO 14154, 90 Fed. Reg. 8353 (Jan. 20, 2025).
42. The Inflation Reduction Act (IRA), which was passed by Congress and signed by the President in 2022, appropriated $891 billion in spending over the following decade.
43. The Infrastructure Investment and Jobs Act (IIJA), which was enacted in 2021, appropriated $1.2 trillion.
44. Since each statute was passed, federal agencies have disbursed billions of dollars to states, including Pennsylvania. Pennsylvania agencies have executed funding or grant agreements that govern the terms under which the state agencies are receiving and may use the federally appropriated funds.
45. Ordering that all funding appropriated through these two statutes be paused caused immediate harm to Commonwealth agencies, as well as their subrecipients.
46. Specifically, Commonwealth agencies cannot draw from federal accounts, which means that agencies are stuck incurring debts and obligations in ongoing projects that cannot be reimbursed. While agencies have some reserves and discretionary dollars to cover small unexpected debts, the scope of the federal freeze will far exceed those reserves.
47. With respect to subrecipients of IRA and IIJA grants, Commonwealth agencies find themselves in an untenable position. Grant subrecipients are performing in accordance with the existing terms of their agreements with the state, which were executed in accordance with federal law. Yet, federal agencies are threatening not to reimburse Commonwealth agencies if the federal agency does not support some activity of the subrecipient. The Commonwealth thus either violates its obligations to subrecipients by withholding money, or it risks being denied reimbursement later by the federal government.
48. The day after the Unleashing American Energy EO was signed, OMB’s Acting Director published a memo (called OMB Memorandum M-25-11) asserting that the funding pause ordered under that EO “only applies to funds supporting programs, projects, or activities that may be implicated by the policy established in Section 2 of the [executive] order.”1
49. Section 2 of that EO vaguely announced several broad policy ambitions of the new presidential administration. Relevant here, those include: (1) encouraging energy exploration on federal land and water; (2) establishing the United States as a leading producer of non-fuel minerals; (3) ensuring an abundant energy supply; (4) eliminating “the electric vehicle mandate”; and (5) promoting consumer choice generally and specifically with respect to appliances.
50. Other EOs similarly sought to withhold, or condition, disbursement of federal money appropriated by Congress. An EO called Ending Radical and Wasteful Government DEI Programs and Preferencing directed that each federal agency head shall, among other things, terminate “all ‘equity action plans,’ ‘equity’ actions, initiatives, or programs, ‘equity-related’ grants or contracts.” EO 14151, 90 Fed. Reg. 8339 (Jan. 20, 2025).
51. In an EO called Ending Illegal Discrimination and Restoring Merit-Based Opportunity, President Trump directed that every contract or grant award include a term requiring the recipient to certify that they do not operate any programs that promote diversity, equity, and inclusion. EO 14173, 90 Fed. Reg. 8633 (Jan. 21, 2025).
52. An EO called Defending Women from Gender Ideology Extremism and Restoring Biological Truth to the Federal Government required that “Federal funds shall not be used to promote gender ideology. Each agency shall assess grant conditions and grantee preferences and ensure grant funds do not promote gender ideology.” EO 14168, 90 Fed. Reg. 8615 (Jan. 20, 2025).
B. OMB Directives and Agency Funding Suspensions
53. Following release of these EOs, Commonwealth agencies started receiving communication from federal agencies about their plans to implement the EOs.
54. Late on January 27, 2025, Commonwealth agencies learned that the OMB Acting Director had sent a directive (called OMB Memorandum M-25-13) to the head of every federal executive department and agency regarding a “Temporary Pause of Agency Grant, Loan, and Other Financial Assistance Programs.”
55. The OMB directive stated that “Career and political appointees in the Executive Branch have a duty to align Federal spending and action with the will of the American people as expressed through Presidential priorities.”
56. It continued that “Financial assistance should be dedicated to advancing Administration priorities, focusing taxpayer dollars to advance a stronger and safer America, eliminating the financial burden of inflation for citizens, unleashing American energy and manufacturing, ending ‘wokeness’ and the weaponization of government, promoting efficiency in government, and Making America Healthy Again.” The OMB directive did not define what “stronger and safer America,” “wokeness,” “weaponization,” “efficiency,” or “Making America Health Again” mean.
57. Conversely, the directive claimed, federal resources should not be used “to advance Marxist equity, transgenderism, and green new deal social engineering policies.” The OMB directive did not define what any of these terms mean.
58. The Acting Director directed that all federal agencies review federal financial assistance programs to ensure that they are consistent with presidential policies. In the interim, all agencies were instructed that they “must temporarily pause all activities related to obligation or disbursement of all Federal financial assistance, and other relevant agency activities that may be implicated by the executive orders, including, but not limited to, financial assistance for foreign aid, nongovernmental organizations, DEI, woke gender ideology, and the green new deal.”
59. The OMB directive did not cite a legal basis to pause any obligation or disbursement of federal funds, let alone a basis to pause all of them.
60. The pause was to be effective on January 28, 2025, at 5:00 PM.
61. That next day, OMB issued a question-and-answer document, an inadequate attempt to clarify its January 27 directive.
62. That Q&A document stated that the pause is “limited to programs, projects, and activities implicated by the President’s Executive Orders, such as ending DEI, the green new deal, and funding nongovernmental organizations that undermine the national interest.”
63. At the same time OMB issued its directive and subsequent Q&A document, federal agencies started communicating that disbursement of certain federal funds would be paused.
64. On January 27, 2025, Commonwealth agencies received a memo from DOE stating, “DOE is moving aggressively to implement” President Trump’s Ending Radical and Wasteful Government DEI Programs and Preferencing EO by directing the suspension of DEI activities, community benefits plans, and Justice40 Requirements authorization under “any loans, loan guarantees, grants, cost sharing agreements, contracts, contract awards, or any other source.” DOE’s memo did not identify what programs, activities, contracts, or loans would be terminated. Nor did it identify any legal authority.
65. On January 28, 2025, PaDEP received an email from [email protected] stating that, “EPA is working diligently to implement President Trump’s Unleashing American Energy Executive Order issued on January 20 in coordination with the Office of Management and Budget. The agency has paused all funding actions related to the Inflation Reduction Act and the Infrastructure Investment and Jobs Act at this time. EPA is continuing to work with OMB as they review processes, policies, and programs, as required by the Executive Order.” The email did not identify what funding related actions would be paused. Nor did it identify any legal authority.
66. PENNVEST, Pennsylvania’s Infrastructure Investment Authority, received a memo from the EPA dated January 27, 2025, that stated “unobligated funds (including unobligated commitments) appropriated by the Inflation Reduction Act of 2022 (P.L. 117-169) and the Infrastructure Investment and Jobs Act (P.L. 117-58) are paused.” The memo also stated that “all disbursements for unliquidated obligations funded by any line of accounting including funds appropriated by the Inflation Reduction Act of 2022 (P.L. 117-169) and the Infrastructure Investment and Jobs Act (P.L. 117-58), are paused.” The memo did not identify what specific funds would be paused. Nor did it identify any legal authority.
67. On January 29, 2025, the U.S. Department of Health and Human Services (HHS) sent a letter to recipients of grant awards from the Center for Disease Control and Prevention stating that grant recipients must terminate all activity that promotes “‘diversity, equity, and inclusion’ (DEI) at every level and activity, regardless of your location or the citizenship of employees or contractors, that are supported with funds from this award. Any vestige, remnant, or re-named piece of any DEI programs funded by the U.S. government under this award are immediately, completely, and permanently terminated.” HHS’s letter did not identify what programs, activities, contracts, or loans would be terminated. Nor did it identify any legal authority.
68. On January 31, 2025, the Pennsylvania Department of Health received an email from the Health Resources & Services Administration, an agency within HHS, stating that “Effective immediately, HRSA grant funds may not be used for activities that do not align with Executive Orders (E.O.) entitled Ending Radical and Wasteful Government DEI Programs and Preferencing, Initial Rescissions of Harmful Executive Orders and Action, Protecting Children from Chemical and Surgical Mutilation, and Defending Women from Gender Ideology Extremism and Restoring Biological Truth to the Federal Government (Defending Women). Any vestige, remnant, or re-named piece of any programs in conflict with these E.O.s are terminated in whole or in part.” The email did not identify what programs, activities, contracts, or loans would be terminated. Nor did it identify any legal authority.
C. Litigation Over Federal Agencies’ Funding Suspension
69. Agencies’ freeze of federal funds were immediately the subject of two lawsuits.
70. In the first of those, an action that non-profit organizations filed against OMB, the District Court for the District of Columbia entered the following order shortly before the OMB memo’s January 28 at 5:00 PM deadline:
See Order, Nat’l Council of Nonprofits v. OMB, No. 25-239 (D.D.C. Jan. 28, 2025) (ECF No. 13).
71. The second of those, filed in the District of Rhode Island by 22 states and the District of Columbia, sought a temporary restraining order of the pause on disbursement of federal funds. See generally New York v. Trump, No. 25-39 (D.R.I.).
72. A few hours before a hearing on the motion for a temporary restraining order was set to begin, OMB released a new memo that purported to rescind Memorandum M-25-13.
73. But the Trump Administration quickly clarified that it rescinded only the memorandum and not the actual directive to pause federal funding. After the recission memo was released, President Trump’s Press Secretary tweeted that the recession memo was “NOT a recission of the federal funding freeze.” She added that “The President’s EO’s on federal funding remain in full force and effect, and will be rigorously implemented.”2
74. The Press Secretary made clear that the rescission of the OMB directive was a clumsy attempt to circumvent federal district court orders. Her tweet stated the recission memo was meant to “end any confusion created by the [District of Columbia] court’s injunction.” Further, the Trump Administration later argued in Rhode Island district court that the challenge to federal policy was moot after the rescission because enjoining the memorandum was not the same as enjoining the policy set forth in the memorandum.
75. On January 31, the Rhode Island district court granted the States’ request for a temporary restraining order. That court noted that the Defendants identified no authority that allows them to unilaterally suspend the payment of federal funds, and that the Court was not aware of any. See Order at 5, New York v. Trump, No. 25-39 (D.R.I. Jan. 31, 2025) (ECF No. 50). Further, the Court concluded, imposing conditions on appropriated funds that are beyond what Congress has authorized is contrary to law. Id.
76. After concluding that withholding money from States inflicts irreparable harm, the Court entered a temporary restraining order stating, “Defendants shall not pause, freeze, impede, block, cancel, or terminate Defendants’ compliance with awards and obligations to provide federal financial assistance to the States, and Defendants shall not impede the States’ access to such awards and obligations, except on the basis of the applicable authorizing statutes, regulations, and terms.” Id.at 11.
77. On February 3, 2025, Commonwealth agencies started receiving a notice of the temporary restraining order from federal agencies. That notice was drafted by the U.S. Department of Justice for federal agencies.
78. The notice stated that “Federal agencies cannot pause, freeze, impede, block, cancel, or terminate any awards or obligations on the basis of the OMB Memo, or on the basis of the President’s recently issued Executive Orders.” The notice added that the prohibition “applies to all awards or obligations—not just those involving the Plaintiff States in the above-referenced case—and also applies to future assistance (not just current or existing awards or obligations).”
79. Yet, the notice also stated that “Agencies may exercise their own authority to pause awards or obligations, provided agencies do so purely based on their own discretion—not as a result of the OMB Memo or the President’s Executive Orders—and provided the pause complies with all notice and procedural requirements in the award, agreement, or other instrument relating to such a pause.”
80. Also on February 3, 2025, the District Court for the District of Columbia granted a temporary restraining order in the non-profits’ action. See Memorandum Opinion & Order, NCN v. OMB, No. 25-239 (D.D.C. Feb. 3, 2025) (ECF No. 30).
81. That court concluded the executive branch’s immediate suspension of money that Congress had appropriated was likely arbitrary and capricious and unconstitutional. Id. at 23-26.
82. The order entered in NCN enjoined Defendants “from implementing, giving effect to, or reinstating under a different name the directives in OMB Memorandum M-25-13 with respect to the disbursement of Federal funds under all open awards.” Id. at 29.
83. On February 7, 2025, Plaintiffs in New York v. Trump filed an emergency motion to enforce the temporary restraining order, supplying the court with evidence that defendants were not fully compliant with the clear terms of the restraining order. Motion, New York v. Trump, No. 25-39 (D.R.I. Feb. 7, 2025) (ECF No. 66). That motion was granted, with the court reiterating that defendants must immediately restore the states’ access to funds frozen or paused based on the OMB directive, President Trump’s EOs, or guidance and agency action implementing either. Order, New York v. Trump, No. 25-39 (D.R.I. Feb. 7, 2025).
84. On February 11, 2025, the United States Court of Appeals for the First Circuit denied a motion from defendants in New York v. Trump to enter an administrative stay and a stay pending appeal while defendants appealed the temporary restraining order and the order to enforce it. Order, New York v. Trump, No. 25-1138 (1st Cir. Feb. 11, 2025).
D. Harm to Pennsylvania
85. Pennsylvania’s agencies receive billions in federal funding every year. For the 2023-24 state fiscal year, Pennsylvania agencies received about $46 billion, which was roughly 40% of the total revenue needed to operate Pennsylvania’s programs that year. For the 2024-25 state fiscal year, Pennsylvania agencies expect to receive about $49 billion, which likewise will be about 40% of the total revenue needed to operate Pennsylvania’s programs for the year.
86. Much of this money comes from grants awarded to Pennsylvania.
87. Congress authorizes, and appropriates money for, federal grants through its powers under the Appropriations and Spending Clauses of the U.S. Constitution.
88. Congress can authorize, and appropriate funds for, different types of grants. As just some examples, Congress may create grants of a defined amount that every state is entitled to receive. Congress may also create “formula grants” through which Congress legislatively determines the formula it wants an agency to use to allocate appropriated funds among states. Congress also can create competitive grants in which an agency is afforded more discretion to identify grant recipients consistent with the factors Congress has identified.
89. For most federal grants, when a Commonwealth agency is to receive federal funds, the Commonwealth agency grantee enters a funding agreement with the federal agency grantor that commits the money to the Commonwealth agency and defines the terms and conditions for receipt and use of the funds. The grantee then begins performing, either by directly conducting work consistent with the agreement or by entering into subrecipient agreements with third parties who will perform consistent with the agreement.
90. Pennsylvania agency grantees typically access federal funding by incurring expenses authorized under the grant agreement and then seeking reimbursement from the federal agency grantor.
91. Pennsylvania agencies make frequent—typically weekly but sometimes daily—drawdowns from federal funds that have been awarded to them.
92. Shortly after OMB issued its January 27 memo, and even before that memo’s January 28, 2025, 5:00 PM deadline, Pennsylvania agencies were frozen out from nearly every platform used to drawn down committed federal funds.
93. Suspension of access was not limited to platforms for seeking reimbursement for expenses under a grant award, but also included platforms for accessing funding for some of the most essential programs, such as Medicaid and Head Start.
94. Once OMB released its January 28 Q&A document, certain accounts that the Commonwealth accesses to receive federal funds obligated to it slowly reopened to Pennsylvania agencies. Many, however, including accounts for more than a dozen grant programs authorized under the IIJA or IRA, remained frozen.
95. A few more accounts that Commonwealth agencies access to seek reimbursement for authorized expenses became available after temporary restraining order were entered in the District of Rhode Island and the District of the District of Columbia.
96. But even after those orders were entered, access to the reimbursement platform for other grant accounts remained suspended.
97. Still more accounts included a note on the reimbursement platform that any requests for reimbursement of authorized expenses were subject to further agency review. This appears to be a funding freeze by a different name. Despite the appearance of those notes, in no case has a federal agency communicated with a Commonwealth agency to report that reimbursements requests for certain grant programs will be subject to further agency review, what that further review entails, or why certain programs now require further review before reimbursements are paid.
98. After January 27, 2025, congressionally appropriated funds that have been obligated to Pennsylvania agencies, totaling at least $3.36 billion, were frozen or marked as subject to undescribed further agency review.
99. As of February 13, 2025, by which point the federal agency defendants’ funding suspensions were already subject to two temporary restraining orders, Commonwealth agencies still had funding over $1.2 billion in grant funding suspended, and more than $900 million in granting funding that is now marked as requiring further (but unarticulated) federal agency review before reimbursement requests can be approved.
100. Much of the affected grant funding was appropriated under either the IIJA or IRA.
101. Commonwealth agencies have entered funding agreements with federal agencies that govern the term and conditions of the Commonwealth agency’s receipt and use of federal grant funds.
102. Further, Commonwealth agencies have spent months preparing to apply for and implement each grant award. In many cases, the Commonwealth agency has executed an agreement for a subaward. For example, of the $156 million Solar for All grant, an agreement is in place with the Philadelphia Green Capital Corporation to subaward about $70 million.
103. Many of these grant programs have deadlines by which Commonwealth agencies must use their grant award.
104. As one example of a now suspended account, the IIJA appropriated $11.2 billion to the Abandoned Mine Reclamation Fund. See 30 U.S.C. § 1231a(a). By statute, that money “shall be used to provide, as expeditiously as practicable, to States and Indian Tribes described in paragraph (2) annual grants for abandoned mine land and water reclamation projects.” Id. § 1231a(b)(1).
105. The IIJA directed that the Secretary of the Interior “shall allocate and distribute amounts made available for grants under subsection (b)(1) to States and Indian Tribes on an equal annual basis over a 15-year period beginning on November 15, 2021, based on the number of tons of coal historically produced in the States or from the applicable Indian land before August 3, 1977.” Id. § 1321a(d)(1).
106. Consistent with what the IIJA requires, Pennsylvania, through PaDEP, receives an annual grant of roughly $245 million from DOI and will do so until 2037.
107. This money funds work needed to reclaim abandoned mine land, which Pennsylvania has more of than any other state in the country. When abandoned mine land is left unaddressed it can, among other things, cave in, causing injury and even death and ruining property, including homes, that may be near an abandoned mine. This money also funds work to address acid mine drainage, which occurs when heavy metal leach from mines into waterways.
108. PaDEP’s access to these annual grant awards was suspended after January 27, 2025.
109. DOI has not identified, and does not possess, any authority to suspend access to these appropriated and obligated funds. DOI did not state that it was suspending funds under any statutory authority or other legal authority.
110. As another example, the IRA appropriated $4.75 billion for the Administrator of the EPA to award competitive grants to state entities to implement plans to reduce greenhouse gas air pollution. 42 U.S.C. § 7437(a)(2), (c).
111. The IRA also appropriated $250 million to the EPA to fund the costs incurred to develop the implementation plan. Id. § 7437(a)(1), (b).
112. PaDEP received $3 million as a planning grant and, in July 2024, was awarded a $396 million implementation grant for its plan to create a statewide industrial decarbonization program.
113. PaDEP has entered funding agreements with the EPA that govern these grant awards.
114. After January 27, 2025, PaDEP’s access to both the $3 million planning grant and the $396 million implementation grant was suspended.
115. EPA has not identified, and does not possess, any authority to suspend access to these appropriated and obligated funds. EPA did not state that it was suspending funds under any statutory authority or other legal authority.
116. As another example, the IIJA created a program for plugging, remediating, and restoring orphaned well sites around the country. See 42 U.S.C. § 15907. Orphaned wells are unproductive oil and gas wells that are a significant source of toxic emissions, including methane emissions.
117. Congress appropriated $4.675 billion to DOI to allocate for well plugging programs created under the IIJA. Id.§ 15907(h)(1).
118. That included $2 billion to be provided as grants consistent with a formula created under the IIJA. Id. § 15907(h)(1)(C). That formula requires that the Secretary of Interior make grant awards based on a formula that considers oil and gas industry job losses and the number of documented orphaned wells in a state. Id. § 15907(c)(4)(A)(iii).
119. PaDEP was awarded over $260 million under this program. DOI already has authorized PaDEP to use more than $100 million of that funding, of which about $76 million remains available for PaDEP to obligate in support of its well plugging programs.
120. After January 27, 2025, PaDEP’s ability to submit reimbursements for authorized uses of this available grant funding became subject to DOI’s undefined further review. DOI has not indicated what it will be reviewing for or how quickly it will review and approve reimbursement of PaDEP’s lawful costs, if DOI will do so at all.
121. DOI has not identified, and does not possess, any authority to unilaterally restrict, or impose new conditions on, PaDEP’s ability to be reimbursed for authorized expenses incurred against these appropriated and obligated funds. DOI has not stated it is imposing new conditions on PaDEP’s use of money for this grant award under any statutory authority.
122. By conditioning, and possibly freezing access to appropriated and obligated funding, DOI has jeopardized work that is necessary to, for example, eliminate toxic emissions that result from unplugged and unproductive oil and gas well and to curtail stray gas from migrating into private homes and water wells, which risks home explosions.
123. Similarly, after January 27, 2025, DOE subjected two grants DEP received (each for about $127 million) for improving energy efficiency in low-income homes to unidentified agency review before DOE will approve reimbursement claims. DOE did the same with a $186 million grant that the Pennsylvania Department of Community and Economic Development (PaDCED) received for its weatherization assistance program, which helps low-income families perform work on their home that reduced energy costs.
124. DOE has not indicated what it will be reviewing for or how quickly it will review and approve reimbursement of either PaDEP’s or PaDCED’s lawful costs, if DOE will do so at all.
125. DOE has not identified, and does not possess, any authority to unilaterally impose new conditions on PaDEP’s or PaDCED’s ability to be reimbursed for authorized expenses incurred against these appropriated and obligated funds. DOE has not stated it is imposing new conditions on PaDEP’s or PaDCED’s use of money for this grant award under any statutory authority.
126. As another example, when Congress passed the IIJA, it appropriated the following amounts to each of the Safe Water State Revolving Fund and Drinking Water State Revolving Fund: $2.4 billion for fiscal year 2022; $2.75 billion for fiscal year 2023; $ 3 billion for fiscal year 2024, and $3.25 billion for each of fiscal years 2025 and 2026. Additional funds were appropriated to each revolving fund to address emerging water contaminants.
127. These appropriations are for investments in infrastructure needed to provide Americans access to safe, clean, and healthy water. Congress has authorized use of these funds and defined how they should be allotted among states. 33 U.S.C. §§ 1384, 1385, 1389; see also 42 U.S.C. § 300j-12(a)(1)(D)-(E), (h).
128. PENNVEST, which is the Pennsylvania entity responsible for administering such capitalization grants for Pennsylvania, has entered funding agreements with the EPA for its allotment of these appropriations.
129. After January 27, 2025, EPA suspended PENNVEST’s ability to access about $803 million in available funds from these capitalization grants for fiscal years 2020 through 2024.
130. The EPA has not identified, and does not possess, any authority to suspend access to these appropriated and obligated funds. EPA has not stated it is suspending funds under any statutory authority.
131. The EPA has also suspended, or conditioned use of, grant awards made to the Pennsylvania Department of Conservation and Natural Resources (PaDCNR). The EPA has not identified, and does not possess, any authority to suspend access to funds appropriated by Congress and obligated to PaDCNR. The EPA did not state that it was suspending funds under any statutory authority or other legal authority.
132. U.S. DOT has also suspended, or conditioned use of, grant awards made to PennDOT. U.S. DOT has not identified, and does not possess, any authority to suspend access to funds appropriated by Congress and obligated to PennDOT. U.S. DOT did not state that it was suspending funds under any statutory authority or other legal authority.
133. If the federal agency defendants’ suspension of federal funds continues, Pennsylvania could be required to furlough employees across state agencies. A furloughed employee could be rehired later, but he or she might seek alternative new employment, causing Pennsylvania to permanently lose the benefit of that employee’s service.
134. Commonwealth agencies have been contacted by subgrantees and contractors who have stated they will not continue performing work under the terms of their agreement unless it is certain that the federal government will fulfill its obligations to provide funding.
CLAIMS FOR RELIEF
Count I – Violation of the Administrative Procedure Act Contrary to Law
135. Plaintiffs incorporate by reference the allegations contained in the preceding paragraphs.
136. Under the Administrative Procedure Act, a reviewing court shall hold unlawful agency action that is “not in accordance with law,” “contrary to constitutional right, power, privilege, or immunity,” or is “in excess of statutory jurisdiction, authority, or limitations.” 5 U.S.C. § 706(2)(A)-(C).
137. Defendants are agencies under the APA. 5 U.S.C. § 551(1).
138. Executive agencies must follow the laws that govern their conduct and may not engage in any conduct not authorized by law.
139. Congress has authorized and appropriated funds, including under the IRA and IIJA, that have since been obligated to the Commonwealth agencies.
140. Defendant agencies possess no authority to refuse to disburse funds authorized and appropriated by Congress and obligated to Pennsylvania agencies.
141. Defendant agencies possess no authority to terminate funding agreements with Pennsylvania agencies for reasons not identified in statute or a funding agreement between the federal and state agencies.
142. Defendant agencies possess no authority to impose new conditions on funds that already have been obligated to Pennsylvania agencies beyond the conditions that exist under statute or the existing funding agreement.
143. Defendant agencies’ duty is to execute the laws that Congress has passed, including laws appropriating funds, rather than amend or repeal them.
144. By refusing to disburse congressionally authorized and appropriated funds that have been obligated to the Commonwealth agencies, the Defendant agencies are acting in violation of the law.
Count II – Violation of the Administrative Procedure Act
Arbitrary and Capricious
145. Plaintiffs incorporate by reference the allegations contained in the preceding paragraphs.
146. Under the Administrative Procedure Act (APA), a reviewing court shall hold unlawful agency action that is “arbitrary” or “capricious.” 5 U.S.C. § 706(2)(A).
147. Agency action is arbitrary or capricious where it is not “reasonable and reasonably explained.” Ohio v. Environmental Protection Agency, 603 U.S. 279, 292 (2024). This standard requires that agencies provide “a satisfactory explanation for its action[,] including a rational connection between the facts found and the choice made.” Id.
148. The pause of the disbursement of federal money is arbitrary and capricious.
149. Defendant agencies are withholding federal money that Congress has authorized and appropriated and which has been obligated to Commonwealth agencies without providing any discernable standard or reasonable basis by which the decisions to freeze the disbursement of federal funds are being made.
150. The EOs that the Defendant agencies have referenced in support of their withholding funds cannot modify the statutory requirement to disburse already obligated funds nor amend the conditions under which funds have already been awarded to Commonwealth agencies.
151. The EOs that Defendant agencies have referenced in support of their withholding funds do not provide a reasoned standard for why or when agencies should refuse to disburse appropriated, obligated funds.
152. Defendant agencies’ decisions to immediately suspend billions of dollars in federal funds committed to Pennsylvania failed to consider reliance interests Pennsylvania’s agencies have in receiving those funds or the harm caused by such suspensions.
153. Additionally, subjecting disbursement of appropriated, obligated funds to unspecified and indeterminate agency review is arbitrary and capricious.
154. By refusing to disburse congressionally appropriated funds that have since been obligated to the Commonwealth agencies, without any reasoned standard for their decisions, the Defendant agencies are acting arbitrarily and capriciously.
Count III – Unconstitutional Withholding of Funds
155. Plaintiffs incorporate by reference the allegations contained in the preceding paragraphs.
156. Under the U.S. Constitution, it is the President’s and the Executive Branch’s duty to “take Care that the laws by faithfully executed.” U.S. Const. art. II, § 3. Of course, the laws that must be faithfully executed are those that have “passed the House of Representatives and the Senate” and then “presented to the President of the United States.” U.S. Const. art. I, § 7.
157. Where Congress passes a law through its power under the Spending Clause of the U.S. Constitution, any conditions it imposes on the receipt of federal funds must be “unambiguous[]” and cannot “surprise[] participating States with post acceptance or ‘retroactive’ conditions.” Pennhurst State Sch. & Hosp. v. Halderman, 451 U.S. 1, 17, 25 (1981).
158. Once a State has accepted funds pursuant to a federal spending program, the Federal government cannot alter the conditions attached to those funds so significantly as to “accomplish[ ] a shift in kind, not merely degree.” Nat’l Fed’n of Indep. Bus. v. Sebelius, 567 U.S. 519, 583-84 (2012). Further, whatever conditions Congress imposes on the receipt of funding funds must be “reasonably related to the purpose of the expenditure.” New York v. United States, 505 U.S. 144, 172 (1992) (citing Mass. v. United States, 435 U.S. 444 (1978)).
159. Neither the President nor any executive branch agency has the power to unilaterally enact, amend, or repeal any statute. That is as true of a statute appropriating funds as it is any other statute.
160. New conditions may not be added to the receipt of federal funds after a state has already accepted those funds. Nor can federal funds be terminated for reasons not specifically articulated by law or in a funding agreement entered into by state and federal agencies.
161. The President and executive branch agencies have an obligation to execute the laws that have been properly enacted.
162. Defendant agencies’ withholding of appropriated, obligated funds violates these fundamental constitutional tenets and is therefore unconstitutional.
163. By seeking to impose new conditions on funds that have already been appropriated and obligated to the Commonwealth agencies, and by terminating federal funds for reasons not clearly articulated in statute or at the time Commonwealth agencies received funds, Defendant agencies have violated the U.S. Constitution’s Spending Clause.
PRAYER FOR RELIEF
Plaintiffs respectfully ask that this Court enter the following relief:
a. Declare that Defendant agencies’ implementation of President Trump’s executive orders, or of OMB’s directives implementing those executive orders, by withholding congressionally appropriated federal funds that have been obligated to the Pennsylvania agencies is contrary to law;
b. Declare that Defendant agencies’ withholding of congressionally appropriated federal funds that have been obligated to the Pennsylvania agencies is contrary to law;
c. Declare that Defendant agencies’ implementation of President Trump’s executive orders, or of OMB’s directives implementing those executive orders, by withholding congressionally appropriated federal funds that have been obligated to the Pennsylvania agencies is arbitrary and capricious;
d. Declare that Defendant agencies’ withholding of congressionally appropriated federal funds that have been obligated to the Pennsylvania agencies is arbitrary and capricious;
e. Declare that Defendant agencies’ implementation of President Trump’s executive orders, or of OMB’s directives implementing those executive orders, by withholding congressionally appropriated federal funds that have been obligated to the Pennsylvania agencies violates the U.S. Constitution;
f. Declare that Defendant agencies’ withholding of congressionally appropriated federal funds that have been obligated to the Pennsylvania agencies violates the U.S. Constitution;
g. Enjoin the Defendant agencies from freezing, pausing, conditioning, or otherwise interfering with, the disbursement of any congressionally appropriated funds that have been obligated to the Pennsylvania agencies where Defendant agencies have no specific statutory to do so;
h. Award plaintiffs’ costs and reasonable attorneys’ fees, as appropriate; and
i. Grant any other relief the Court deems just and appropriate.
February 13, 2025
Respectfully submitted,
s/ Jacob B. Boyer
Jacob B. Boyer (Pa. No. 324396)
Michael J. Fischer (Pa. No. 322311)
Stephen R. Kovatis (Pa. No. 209495)
Office of General Counsel
30 North Street, Suite 200
Harrisburg, PA 17101
[email protected]
(717) 460-6786
Counsel for Plaintiffs
_______________
Notes:
1 Available at: https://www.whitehouse.gov/briefings-st ... o-m-25-11/.
2 Available at: https://x.com/PressSec/status/1884672871944901034.
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
JOSH SHAPIRO, IN HIS OFFICIAL CAPACITY AS GOVERNOR OF THE COMMONWEALTH OF PENNSYLVANIA; PENNSYLVANIA DEPARTMENT OF ENVIRONMENTAL PROTECTION; PENNSYLVANIA DEPARTMENT OF CONSERVATION AND NATURAL RESOURCES; PENNSYLVANIA DEPARTMENT OF TRANSPORTATION; AND PENNSYLVANIA DEPARTMENT OF COMMUNITY AND ECONOMIC DEVELOPMENT,
Plaintiffs,
v.
U.S. DEPARTMENT OF THE INTERIOR; DOUG BURGUM, IN HIS OFFICIAL CAPACITY AS SECRETARY OF THE U.S. DEPARTMENT OF THE INTERIOR; U.S. ENVIRONMENTAL PROTECTION AGENCY; LEE ZELDIN, IN HIS OFFICIAL CAPACITY AS ADMINISTRATOR OF THE U.S. ENVIRONMENTAL PROTECTION AGENCY; U.S. DEPARTMENT OF ENERGY; CHRIS WRIGHT, IN HIS OFFICIAL CAPACITY AS SECRETARY OF THE U.S. DEPARTMENT OF ENERGY; U.S. DEPARTMENT OF TRANSPORTATION; SEAN DUFFY, IN HIS OFFICIAL CAPACITY AS SECRETARY OF U.S. DEPARTMENT OF TRANSPORTATION; OFFICE OF MANAGEMENT AND BUDGET; AND RUSSELL VOUGHT, IN HIS OFFICIAL CAPACITY AS DIRECTOR OF OFFICE OF MANAGEMENT AND BUDGET,
Defendants.
Case No. 25-cv-763
Filed 02/13/25
COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF
INTRODUCTION
1. Congress has authorized and appropriated billions of dollars for programs that are currently being carried out across the Commonwealth of Pennsylvania. The Commonwealth’s executive branch relies on these funds to provide essential services to people across Pennsylvania.
2. For example, one current federal grant program provides Pennsylvania’s Department of Environmental Protection (PaDEP) more than $3 billion over 15 years to meet the multi-billion dollar need to repair abandoned mine lands (meaning former sites of ore and mineral mining) throughout Pennsylvania and the waterways impacted by those former mine sites. Abandoned mine lands can cause land to cave in, which can be—and in recent months has been—fatal. Proactively repairing abandoned mine lands and responding to emergencies they cause is a critical public safety service. This grant funding would allow for reclamation of around 24,000 acres of abandoned mine land, for construction or maintenance of 16 water treatment systems that deal with toxic runoff from abandoned mines, and for responding to about 60 emergency events per year.
3. PaDEP also currently has about $76 million of federal funding available to plug abandoned oil and gas wells, which are both a significant source of greenhouse gas emissions and possible sources of gas migrations that can cause explosions. That funding will allow the Commonwealth to plug over 500 abandoned wells.
4. Two more grant programs allocate about $126 million each to Pennsylvania for programs that will allow up to 28,000 low-income households to perform work on their homes that will lower their utility bills.
5. The Pennsylvania agencies that run these programs have entered into agreements with their federal partners that obligate those funds to Pennsylvania and define the terms of the money’s use.
6. Nevertheless, federal agencies are now unilaterally and arbitrarily suspending or restricting Commonwealth agencies’ access to the congressionally appropriated grant funds that that have been committed to them.
7. Since around January 27, 2025, federal agencies have restricted Pennsylvania agencies’ ability to access funding for grant programs that, in total, obligated over $3.1 billion to Pennsylvania for fiscal years 2022 to 2026. In addition to funding for the programs described above (and many more), these include around $800 million in funding authorized and appropriated for Pennsylvania to provide grants for investment in clean water infrastructure, nearly $400 for a program that would allow manufacturing and industrial companies throughout Pennsylvania to mitigate their greenhouse gas emissions, and tens of millions for a program that supports resilient and reliable electric service in rural communities.
8. Pennsylvania agencies have over $2.5 billion remaining under grant programs that are now suspended or for which reimbursement of authorized expenses now requires some federal agency review that is not contained within the terms of Congress’ statutes or any funding agreements, and which has not been described to Commonwealth agencies. Over $1 billion of the $2.5 billion of available money has already been obligated, including to subrecipients performing work under the various grants now at risk.
9. In addition, about $2.69 billion has been appropriated to Pennsylvania for fiscal years 2027 to 2037 for the currently suspended abandoned mine program. In all, then, federal agencies’ recent funding suspensions have jeopardized at least $5.5 billion that has been committed to Pennsylvania.
10. Governor Josh Shapiro and members of Pennsylvania’s agencies have been working with federal partners and legislators to try to fully restore access to these funds. Despite that work, and despite two temporary restraining orders requiring federal agencies to restore access to suspended funds, federal agencies continue to deny Pennsylvania agencies funding that they are entitled to receive.
11. So, Governor Shapiro and several Pennsylvania executive agencies now seek relief from the federal agencies’ flagrantly lawless actions.
12. Indeed, in executing the ongoing funding suspensions, federal agencies have asserted the power to suspend and restrict access to appropriated money without regard for whether they have any legal authority to do so. Rather, federal agencies have restricted Pennsylvania’s ability to use appropriated and obligated funds merely when agencies believe that President Trump dislikes the purpose of Congress’s appropriation.
13. Of course, no statute, regulation, or anything else gives any federal agency power to unilaterally refuse to spend congressionally appropriated funds that have already been committed to Pennsylvania merely because the agency (or even the President) has policy disagreements with the appropriations Congress has made.
14. Here, the federal agency defendants have not only exceeded any legitimate authority, but they have also suspended access to billions in funding without supplying a plausible explanation as to why certain funds are being suspended, giving any consideration to the harm their action would cause, or considering how Commonwealth agencies have relied on receiving that committed funding.
15. Unilaterally suspending funds as federal agencies have done also violates the U.S. Constitution. Nothing in the Constitution empowers agencies—nor the President—to arrogate to themselves the power to suspend states’ access to money that Congress appropriated or to impose new conditions on money already appropriated and obligated. In fact, the Constitution specifically requires otherwise.
16. Governor Shapiro and the Commonwealth agencies bring this action to restore law and order by preventing the federal agency defendants from violating statutes under which billions in federal funds have been authorized, appropriated, and obligated to Pennsylvania agencies. Clear and unequivocal judicial orders are necessary to remedy federal agencies’ unlawful conduct.
JURISDICTION AND VENUE
17. This Court has subject matter jurisdiction pursuant to 28 U.S.C. § 1331. Jurisdiction is also proper under the judicial review provisions of the Administrative Procedure Act. See 5 U.S.C. § 702.
18. Venue is proper in this district under 28 U.S.C. § 1391(b)(2), (e)(1). Defendants are United States agencies or officers sued in their official capacities. A substantial part of the events giving rise to this Complaint occurred and continue to occur within this district.
PARTIES
A. Plaintiffs
19. Josh Shapiro is the Governor of Pennsylvania. He brings this case in his official capacity.
20. The Pennsylvania Constitution vests “[t]he supreme executive power” in the Governor. Pa. Const. art. IV, § 2.
21. The Governor oversees all executive agencies in Pennsylvania.
22. Pennsylvania Department of Environmental Protection (PaDEP) is an executive agency within the Commonwealth of Pennsylvania. 71 P.S. § 510-1.
23. The Pennsylvania Department of Conservation and Natural Resources (PaDCNR) is an executive agency within the Commonwealth of Pennsylvania. 71 P.S. § 1340.301.
24. The Pennsylvania Department of Community and Economic Development (PaDCED) is an executive agency within the Commonwealth of Pennsylvania. 71 P.S. § 1709.301.
25. The Pennsylvania Department of Transportation (PennDOT) is an executive agency within the Commonwealth of Pennsylvania. 71 P.S. § 511.
B. Defendants
26. Defendant U.S. Environmental Protection Agency (EPA) is an independent agency within the executive branch of the United States government.
27. Defendant Lee Zeldin is the Administrator of the EPA, and that agency’s highest ranking official. He is sued in his official capacity.
28. Defendant U.S. Department of the Interior (DOI) is a cabinet agency within the executive branch of the United States government. 43 U.S.C. § 1451.
29. Defendant Doug Burgum is the Secretary of DOI, and that agency’s highest ranking official. 43 U.S.C. § 1451. He is sued in his official capacity.
30. Defendant U.S. Department of Energy (DOE) is a cabinet agency within the executive branch of the United States government. 42 U.S.C. § 7131.
31. Defendant Chris Wright Kolb is the Secretary of DOE, and that agency’s highest ranking official. He is sued in his official capacity. 42 U.S.C. § 7131.
32. Defendant U.S. Department of Transportation (U.S. DOT) is a cabinet agency within the executive branch of the United States government. 49 U.S.C. § 102.
33. Defendant Sean Duffy is the Secretary of U.S. DOT, and that agency’s highest ranking official. He is sued in his official capacity. 49 U.S.C. § 102.
34. Defendant the Office of Management and Budget (OMB) is office within the Executive Office of the President. OMB is responsible for oversight of federal agencies’ performance and the administration of the federal budget. 31 U.S.C. § 501.
35. Defendant Russell Vought is the Director of OMB, and that agency’s highest ranking official. He is sued in his official capacity.
FACTS
36. Since taking office, President Trump and his Administration have issued a slew of directives that federal agencies immediately pause the disbursement of money that Congress has appropriated, and which in many cases has subsequently been obligated to Commonwealth agencies.
37. The various directives have been vague, beyond any statutory or constitutional authority, and the cause of immediate harm.
38. The agencies implementing these directives have done so arbitrarily and without authority.
A. President Trump’s Executive Orders
39. The day he was inaugurated, President Trump signed several executive orders (EOs).
40. Unleashing American Energy was among the day-one EOs.
41. In that order, the President directed that “All agencies shall immediately pause the disbursement of funds appropriated through the Inflation Reduction Act of 2022 (Public Law 117-169) or the Infrastructure Investment and Jobs Act (Public Law 117-58), including but not limited to funds for electric vehicle charging stations made available through the National Electric Vehicle Infrastructure Formula Program and the Charging and Fueling Infrastructure Discretionary Grant Program.” EO 14154, 90 Fed. Reg. 8353 (Jan. 20, 2025).
42. The Inflation Reduction Act (IRA), which was passed by Congress and signed by the President in 2022, appropriated $891 billion in spending over the following decade.
43. The Infrastructure Investment and Jobs Act (IIJA), which was enacted in 2021, appropriated $1.2 trillion.
44. Since each statute was passed, federal agencies have disbursed billions of dollars to states, including Pennsylvania. Pennsylvania agencies have executed funding or grant agreements that govern the terms under which the state agencies are receiving and may use the federally appropriated funds.
45. Ordering that all funding appropriated through these two statutes be paused caused immediate harm to Commonwealth agencies, as well as their subrecipients.
46. Specifically, Commonwealth agencies cannot draw from federal accounts, which means that agencies are stuck incurring debts and obligations in ongoing projects that cannot be reimbursed. While agencies have some reserves and discretionary dollars to cover small unexpected debts, the scope of the federal freeze will far exceed those reserves.
47. With respect to subrecipients of IRA and IIJA grants, Commonwealth agencies find themselves in an untenable position. Grant subrecipients are performing in accordance with the existing terms of their agreements with the state, which were executed in accordance with federal law. Yet, federal agencies are threatening not to reimburse Commonwealth agencies if the federal agency does not support some activity of the subrecipient. The Commonwealth thus either violates its obligations to subrecipients by withholding money, or it risks being denied reimbursement later by the federal government.
48. The day after the Unleashing American Energy EO was signed, OMB’s Acting Director published a memo (called OMB Memorandum M-25-11) asserting that the funding pause ordered under that EO “only applies to funds supporting programs, projects, or activities that may be implicated by the policy established in Section 2 of the [executive] order.”1
49. Section 2 of that EO vaguely announced several broad policy ambitions of the new presidential administration. Relevant here, those include: (1) encouraging energy exploration on federal land and water; (2) establishing the United States as a leading producer of non-fuel minerals; (3) ensuring an abundant energy supply; (4) eliminating “the electric vehicle mandate”; and (5) promoting consumer choice generally and specifically with respect to appliances.
50. Other EOs similarly sought to withhold, or condition, disbursement of federal money appropriated by Congress. An EO called Ending Radical and Wasteful Government DEI Programs and Preferencing directed that each federal agency head shall, among other things, terminate “all ‘equity action plans,’ ‘equity’ actions, initiatives, or programs, ‘equity-related’ grants or contracts.” EO 14151, 90 Fed. Reg. 8339 (Jan. 20, 2025).
51. In an EO called Ending Illegal Discrimination and Restoring Merit-Based Opportunity, President Trump directed that every contract or grant award include a term requiring the recipient to certify that they do not operate any programs that promote diversity, equity, and inclusion. EO 14173, 90 Fed. Reg. 8633 (Jan. 21, 2025).
52. An EO called Defending Women from Gender Ideology Extremism and Restoring Biological Truth to the Federal Government required that “Federal funds shall not be used to promote gender ideology. Each agency shall assess grant conditions and grantee preferences and ensure grant funds do not promote gender ideology.” EO 14168, 90 Fed. Reg. 8615 (Jan. 20, 2025).
B. OMB Directives and Agency Funding Suspensions
53. Following release of these EOs, Commonwealth agencies started receiving communication from federal agencies about their plans to implement the EOs.
54. Late on January 27, 2025, Commonwealth agencies learned that the OMB Acting Director had sent a directive (called OMB Memorandum M-25-13) to the head of every federal executive department and agency regarding a “Temporary Pause of Agency Grant, Loan, and Other Financial Assistance Programs.”
55. The OMB directive stated that “Career and political appointees in the Executive Branch have a duty to align Federal spending and action with the will of the American people as expressed through Presidential priorities.”
56. It continued that “Financial assistance should be dedicated to advancing Administration priorities, focusing taxpayer dollars to advance a stronger and safer America, eliminating the financial burden of inflation for citizens, unleashing American energy and manufacturing, ending ‘wokeness’ and the weaponization of government, promoting efficiency in government, and Making America Healthy Again.” The OMB directive did not define what “stronger and safer America,” “wokeness,” “weaponization,” “efficiency,” or “Making America Health Again” mean.
57. Conversely, the directive claimed, federal resources should not be used “to advance Marxist equity, transgenderism, and green new deal social engineering policies.” The OMB directive did not define what any of these terms mean.
58. The Acting Director directed that all federal agencies review federal financial assistance programs to ensure that they are consistent with presidential policies. In the interim, all agencies were instructed that they “must temporarily pause all activities related to obligation or disbursement of all Federal financial assistance, and other relevant agency activities that may be implicated by the executive orders, including, but not limited to, financial assistance for foreign aid, nongovernmental organizations, DEI, woke gender ideology, and the green new deal.”
59. The OMB directive did not cite a legal basis to pause any obligation or disbursement of federal funds, let alone a basis to pause all of them.
60. The pause was to be effective on January 28, 2025, at 5:00 PM.
61. That next day, OMB issued a question-and-answer document, an inadequate attempt to clarify its January 27 directive.
62. That Q&A document stated that the pause is “limited to programs, projects, and activities implicated by the President’s Executive Orders, such as ending DEI, the green new deal, and funding nongovernmental organizations that undermine the national interest.”
63. At the same time OMB issued its directive and subsequent Q&A document, federal agencies started communicating that disbursement of certain federal funds would be paused.
64. On January 27, 2025, Commonwealth agencies received a memo from DOE stating, “DOE is moving aggressively to implement” President Trump’s Ending Radical and Wasteful Government DEI Programs and Preferencing EO by directing the suspension of DEI activities, community benefits plans, and Justice40 Requirements authorization under “any loans, loan guarantees, grants, cost sharing agreements, contracts, contract awards, or any other source.” DOE’s memo did not identify what programs, activities, contracts, or loans would be terminated. Nor did it identify any legal authority.
65. On January 28, 2025, PaDEP received an email from [email protected] stating that, “EPA is working diligently to implement President Trump’s Unleashing American Energy Executive Order issued on January 20 in coordination with the Office of Management and Budget. The agency has paused all funding actions related to the Inflation Reduction Act and the Infrastructure Investment and Jobs Act at this time. EPA is continuing to work with OMB as they review processes, policies, and programs, as required by the Executive Order.” The email did not identify what funding related actions would be paused. Nor did it identify any legal authority.
66. PENNVEST, Pennsylvania’s Infrastructure Investment Authority, received a memo from the EPA dated January 27, 2025, that stated “unobligated funds (including unobligated commitments) appropriated by the Inflation Reduction Act of 2022 (P.L. 117-169) and the Infrastructure Investment and Jobs Act (P.L. 117-58) are paused.” The memo also stated that “all disbursements for unliquidated obligations funded by any line of accounting including funds appropriated by the Inflation Reduction Act of 2022 (P.L. 117-169) and the Infrastructure Investment and Jobs Act (P.L. 117-58), are paused.” The memo did not identify what specific funds would be paused. Nor did it identify any legal authority.
67. On January 29, 2025, the U.S. Department of Health and Human Services (HHS) sent a letter to recipients of grant awards from the Center for Disease Control and Prevention stating that grant recipients must terminate all activity that promotes “‘diversity, equity, and inclusion’ (DEI) at every level and activity, regardless of your location or the citizenship of employees or contractors, that are supported with funds from this award. Any vestige, remnant, or re-named piece of any DEI programs funded by the U.S. government under this award are immediately, completely, and permanently terminated.” HHS’s letter did not identify what programs, activities, contracts, or loans would be terminated. Nor did it identify any legal authority.
68. On January 31, 2025, the Pennsylvania Department of Health received an email from the Health Resources & Services Administration, an agency within HHS, stating that “Effective immediately, HRSA grant funds may not be used for activities that do not align with Executive Orders (E.O.) entitled Ending Radical and Wasteful Government DEI Programs and Preferencing, Initial Rescissions of Harmful Executive Orders and Action, Protecting Children from Chemical and Surgical Mutilation, and Defending Women from Gender Ideology Extremism and Restoring Biological Truth to the Federal Government (Defending Women). Any vestige, remnant, or re-named piece of any programs in conflict with these E.O.s are terminated in whole or in part.” The email did not identify what programs, activities, contracts, or loans would be terminated. Nor did it identify any legal authority.
C. Litigation Over Federal Agencies’ Funding Suspension
69. Agencies’ freeze of federal funds were immediately the subject of two lawsuits.
70. In the first of those, an action that non-profit organizations filed against OMB, the District Court for the District of Columbia entered the following order shortly before the OMB memo’s January 28 at 5:00 PM deadline:
[ I]t is hereby ORDERED that an ADMINISTRATIVE STAY is entered in this case until 5:00 p.m. at February 3, 2025. During the pendency of the stay, Defendants shall refrain from implementing OMB Memorandum M-25-13 with respect to the disbursement of Federal funds under all open awards.
See Order, Nat’l Council of Nonprofits v. OMB, No. 25-239 (D.D.C. Jan. 28, 2025) (ECF No. 13).
71. The second of those, filed in the District of Rhode Island by 22 states and the District of Columbia, sought a temporary restraining order of the pause on disbursement of federal funds. See generally New York v. Trump, No. 25-39 (D.R.I.).
72. A few hours before a hearing on the motion for a temporary restraining order was set to begin, OMB released a new memo that purported to rescind Memorandum M-25-13.
73. But the Trump Administration quickly clarified that it rescinded only the memorandum and not the actual directive to pause federal funding. After the recission memo was released, President Trump’s Press Secretary tweeted that the recession memo was “NOT a recission of the federal funding freeze.” She added that “The President’s EO’s on federal funding remain in full force and effect, and will be rigorously implemented.”2
74. The Press Secretary made clear that the rescission of the OMB directive was a clumsy attempt to circumvent federal district court orders. Her tweet stated the recission memo was meant to “end any confusion created by the [District of Columbia] court’s injunction.” Further, the Trump Administration later argued in Rhode Island district court that the challenge to federal policy was moot after the rescission because enjoining the memorandum was not the same as enjoining the policy set forth in the memorandum.
75. On January 31, the Rhode Island district court granted the States’ request for a temporary restraining order. That court noted that the Defendants identified no authority that allows them to unilaterally suspend the payment of federal funds, and that the Court was not aware of any. See Order at 5, New York v. Trump, No. 25-39 (D.R.I. Jan. 31, 2025) (ECF No. 50). Further, the Court concluded, imposing conditions on appropriated funds that are beyond what Congress has authorized is contrary to law. Id.
76. After concluding that withholding money from States inflicts irreparable harm, the Court entered a temporary restraining order stating, “Defendants shall not pause, freeze, impede, block, cancel, or terminate Defendants’ compliance with awards and obligations to provide federal financial assistance to the States, and Defendants shall not impede the States’ access to such awards and obligations, except on the basis of the applicable authorizing statutes, regulations, and terms.” Id.at 11.
77. On February 3, 2025, Commonwealth agencies started receiving a notice of the temporary restraining order from federal agencies. That notice was drafted by the U.S. Department of Justice for federal agencies.
78. The notice stated that “Federal agencies cannot pause, freeze, impede, block, cancel, or terminate any awards or obligations on the basis of the OMB Memo, or on the basis of the President’s recently issued Executive Orders.” The notice added that the prohibition “applies to all awards or obligations—not just those involving the Plaintiff States in the above-referenced case—and also applies to future assistance (not just current or existing awards or obligations).”
79. Yet, the notice also stated that “Agencies may exercise their own authority to pause awards or obligations, provided agencies do so purely based on their own discretion—not as a result of the OMB Memo or the President’s Executive Orders—and provided the pause complies with all notice and procedural requirements in the award, agreement, or other instrument relating to such a pause.”
80. Also on February 3, 2025, the District Court for the District of Columbia granted a temporary restraining order in the non-profits’ action. See Memorandum Opinion & Order, NCN v. OMB, No. 25-239 (D.D.C. Feb. 3, 2025) (ECF No. 30).
81. That court concluded the executive branch’s immediate suspension of money that Congress had appropriated was likely arbitrary and capricious and unconstitutional. Id. at 23-26.
82. The order entered in NCN enjoined Defendants “from implementing, giving effect to, or reinstating under a different name the directives in OMB Memorandum M-25-13 with respect to the disbursement of Federal funds under all open awards.” Id. at 29.
83. On February 7, 2025, Plaintiffs in New York v. Trump filed an emergency motion to enforce the temporary restraining order, supplying the court with evidence that defendants were not fully compliant with the clear terms of the restraining order. Motion, New York v. Trump, No. 25-39 (D.R.I. Feb. 7, 2025) (ECF No. 66). That motion was granted, with the court reiterating that defendants must immediately restore the states’ access to funds frozen or paused based on the OMB directive, President Trump’s EOs, or guidance and agency action implementing either. Order, New York v. Trump, No. 25-39 (D.R.I. Feb. 7, 2025).
84. On February 11, 2025, the United States Court of Appeals for the First Circuit denied a motion from defendants in New York v. Trump to enter an administrative stay and a stay pending appeal while defendants appealed the temporary restraining order and the order to enforce it. Order, New York v. Trump, No. 25-1138 (1st Cir. Feb. 11, 2025).
D. Harm to Pennsylvania
85. Pennsylvania’s agencies receive billions in federal funding every year. For the 2023-24 state fiscal year, Pennsylvania agencies received about $46 billion, which was roughly 40% of the total revenue needed to operate Pennsylvania’s programs that year. For the 2024-25 state fiscal year, Pennsylvania agencies expect to receive about $49 billion, which likewise will be about 40% of the total revenue needed to operate Pennsylvania’s programs for the year.
86. Much of this money comes from grants awarded to Pennsylvania.
87. Congress authorizes, and appropriates money for, federal grants through its powers under the Appropriations and Spending Clauses of the U.S. Constitution.
88. Congress can authorize, and appropriate funds for, different types of grants. As just some examples, Congress may create grants of a defined amount that every state is entitled to receive. Congress may also create “formula grants” through which Congress legislatively determines the formula it wants an agency to use to allocate appropriated funds among states. Congress also can create competitive grants in which an agency is afforded more discretion to identify grant recipients consistent with the factors Congress has identified.
89. For most federal grants, when a Commonwealth agency is to receive federal funds, the Commonwealth agency grantee enters a funding agreement with the federal agency grantor that commits the money to the Commonwealth agency and defines the terms and conditions for receipt and use of the funds. The grantee then begins performing, either by directly conducting work consistent with the agreement or by entering into subrecipient agreements with third parties who will perform consistent with the agreement.
90. Pennsylvania agency grantees typically access federal funding by incurring expenses authorized under the grant agreement and then seeking reimbursement from the federal agency grantor.
91. Pennsylvania agencies make frequent—typically weekly but sometimes daily—drawdowns from federal funds that have been awarded to them.
92. Shortly after OMB issued its January 27 memo, and even before that memo’s January 28, 2025, 5:00 PM deadline, Pennsylvania agencies were frozen out from nearly every platform used to drawn down committed federal funds.
93. Suspension of access was not limited to platforms for seeking reimbursement for expenses under a grant award, but also included platforms for accessing funding for some of the most essential programs, such as Medicaid and Head Start.
94. Once OMB released its January 28 Q&A document, certain accounts that the Commonwealth accesses to receive federal funds obligated to it slowly reopened to Pennsylvania agencies. Many, however, including accounts for more than a dozen grant programs authorized under the IIJA or IRA, remained frozen.
95. A few more accounts that Commonwealth agencies access to seek reimbursement for authorized expenses became available after temporary restraining order were entered in the District of Rhode Island and the District of the District of Columbia.
96. But even after those orders were entered, access to the reimbursement platform for other grant accounts remained suspended.
97. Still more accounts included a note on the reimbursement platform that any requests for reimbursement of authorized expenses were subject to further agency review. This appears to be a funding freeze by a different name. Despite the appearance of those notes, in no case has a federal agency communicated with a Commonwealth agency to report that reimbursements requests for certain grant programs will be subject to further agency review, what that further review entails, or why certain programs now require further review before reimbursements are paid.
98. After January 27, 2025, congressionally appropriated funds that have been obligated to Pennsylvania agencies, totaling at least $3.36 billion, were frozen or marked as subject to undescribed further agency review.
99. As of February 13, 2025, by which point the federal agency defendants’ funding suspensions were already subject to two temporary restraining orders, Commonwealth agencies still had funding over $1.2 billion in grant funding suspended, and more than $900 million in granting funding that is now marked as requiring further (but unarticulated) federal agency review before reimbursement requests can be approved.
100. Much of the affected grant funding was appropriated under either the IIJA or IRA.
101. Commonwealth agencies have entered funding agreements with federal agencies that govern the term and conditions of the Commonwealth agency’s receipt and use of federal grant funds.
102. Further, Commonwealth agencies have spent months preparing to apply for and implement each grant award. In many cases, the Commonwealth agency has executed an agreement for a subaward. For example, of the $156 million Solar for All grant, an agreement is in place with the Philadelphia Green Capital Corporation to subaward about $70 million.
103. Many of these grant programs have deadlines by which Commonwealth agencies must use their grant award.
104. As one example of a now suspended account, the IIJA appropriated $11.2 billion to the Abandoned Mine Reclamation Fund. See 30 U.S.C. § 1231a(a). By statute, that money “shall be used to provide, as expeditiously as practicable, to States and Indian Tribes described in paragraph (2) annual grants for abandoned mine land and water reclamation projects.” Id. § 1231a(b)(1).
105. The IIJA directed that the Secretary of the Interior “shall allocate and distribute amounts made available for grants under subsection (b)(1) to States and Indian Tribes on an equal annual basis over a 15-year period beginning on November 15, 2021, based on the number of tons of coal historically produced in the States or from the applicable Indian land before August 3, 1977.” Id. § 1321a(d)(1).
106. Consistent with what the IIJA requires, Pennsylvania, through PaDEP, receives an annual grant of roughly $245 million from DOI and will do so until 2037.
107. This money funds work needed to reclaim abandoned mine land, which Pennsylvania has more of than any other state in the country. When abandoned mine land is left unaddressed it can, among other things, cave in, causing injury and even death and ruining property, including homes, that may be near an abandoned mine. This money also funds work to address acid mine drainage, which occurs when heavy metal leach from mines into waterways.
108. PaDEP’s access to these annual grant awards was suspended after January 27, 2025.
109. DOI has not identified, and does not possess, any authority to suspend access to these appropriated and obligated funds. DOI did not state that it was suspending funds under any statutory authority or other legal authority.
110. As another example, the IRA appropriated $4.75 billion for the Administrator of the EPA to award competitive grants to state entities to implement plans to reduce greenhouse gas air pollution. 42 U.S.C. § 7437(a)(2), (c).
111. The IRA also appropriated $250 million to the EPA to fund the costs incurred to develop the implementation plan. Id. § 7437(a)(1), (b).
112. PaDEP received $3 million as a planning grant and, in July 2024, was awarded a $396 million implementation grant for its plan to create a statewide industrial decarbonization program.
113. PaDEP has entered funding agreements with the EPA that govern these grant awards.
114. After January 27, 2025, PaDEP’s access to both the $3 million planning grant and the $396 million implementation grant was suspended.
115. EPA has not identified, and does not possess, any authority to suspend access to these appropriated and obligated funds. EPA did not state that it was suspending funds under any statutory authority or other legal authority.
116. As another example, the IIJA created a program for plugging, remediating, and restoring orphaned well sites around the country. See 42 U.S.C. § 15907. Orphaned wells are unproductive oil and gas wells that are a significant source of toxic emissions, including methane emissions.
117. Congress appropriated $4.675 billion to DOI to allocate for well plugging programs created under the IIJA. Id.§ 15907(h)(1).
118. That included $2 billion to be provided as grants consistent with a formula created under the IIJA. Id. § 15907(h)(1)(C). That formula requires that the Secretary of Interior make grant awards based on a formula that considers oil and gas industry job losses and the number of documented orphaned wells in a state. Id. § 15907(c)(4)(A)(iii).
119. PaDEP was awarded over $260 million under this program. DOI already has authorized PaDEP to use more than $100 million of that funding, of which about $76 million remains available for PaDEP to obligate in support of its well plugging programs.
120. After January 27, 2025, PaDEP’s ability to submit reimbursements for authorized uses of this available grant funding became subject to DOI’s undefined further review. DOI has not indicated what it will be reviewing for or how quickly it will review and approve reimbursement of PaDEP’s lawful costs, if DOI will do so at all.
121. DOI has not identified, and does not possess, any authority to unilaterally restrict, or impose new conditions on, PaDEP’s ability to be reimbursed for authorized expenses incurred against these appropriated and obligated funds. DOI has not stated it is imposing new conditions on PaDEP’s use of money for this grant award under any statutory authority.
122. By conditioning, and possibly freezing access to appropriated and obligated funding, DOI has jeopardized work that is necessary to, for example, eliminate toxic emissions that result from unplugged and unproductive oil and gas well and to curtail stray gas from migrating into private homes and water wells, which risks home explosions.
123. Similarly, after January 27, 2025, DOE subjected two grants DEP received (each for about $127 million) for improving energy efficiency in low-income homes to unidentified agency review before DOE will approve reimbursement claims. DOE did the same with a $186 million grant that the Pennsylvania Department of Community and Economic Development (PaDCED) received for its weatherization assistance program, which helps low-income families perform work on their home that reduced energy costs.
124. DOE has not indicated what it will be reviewing for or how quickly it will review and approve reimbursement of either PaDEP’s or PaDCED’s lawful costs, if DOE will do so at all.
125. DOE has not identified, and does not possess, any authority to unilaterally impose new conditions on PaDEP’s or PaDCED’s ability to be reimbursed for authorized expenses incurred against these appropriated and obligated funds. DOE has not stated it is imposing new conditions on PaDEP’s or PaDCED’s use of money for this grant award under any statutory authority.
126. As another example, when Congress passed the IIJA, it appropriated the following amounts to each of the Safe Water State Revolving Fund and Drinking Water State Revolving Fund: $2.4 billion for fiscal year 2022; $2.75 billion for fiscal year 2023; $ 3 billion for fiscal year 2024, and $3.25 billion for each of fiscal years 2025 and 2026. Additional funds were appropriated to each revolving fund to address emerging water contaminants.
127. These appropriations are for investments in infrastructure needed to provide Americans access to safe, clean, and healthy water. Congress has authorized use of these funds and defined how they should be allotted among states. 33 U.S.C. §§ 1384, 1385, 1389; see also 42 U.S.C. § 300j-12(a)(1)(D)-(E), (h).
128. PENNVEST, which is the Pennsylvania entity responsible for administering such capitalization grants for Pennsylvania, has entered funding agreements with the EPA for its allotment of these appropriations.
129. After January 27, 2025, EPA suspended PENNVEST’s ability to access about $803 million in available funds from these capitalization grants for fiscal years 2020 through 2024.
130. The EPA has not identified, and does not possess, any authority to suspend access to these appropriated and obligated funds. EPA has not stated it is suspending funds under any statutory authority.
131. The EPA has also suspended, or conditioned use of, grant awards made to the Pennsylvania Department of Conservation and Natural Resources (PaDCNR). The EPA has not identified, and does not possess, any authority to suspend access to funds appropriated by Congress and obligated to PaDCNR. The EPA did not state that it was suspending funds under any statutory authority or other legal authority.
132. U.S. DOT has also suspended, or conditioned use of, grant awards made to PennDOT. U.S. DOT has not identified, and does not possess, any authority to suspend access to funds appropriated by Congress and obligated to PennDOT. U.S. DOT did not state that it was suspending funds under any statutory authority or other legal authority.
133. If the federal agency defendants’ suspension of federal funds continues, Pennsylvania could be required to furlough employees across state agencies. A furloughed employee could be rehired later, but he or she might seek alternative new employment, causing Pennsylvania to permanently lose the benefit of that employee’s service.
134. Commonwealth agencies have been contacted by subgrantees and contractors who have stated they will not continue performing work under the terms of their agreement unless it is certain that the federal government will fulfill its obligations to provide funding.
CLAIMS FOR RELIEF
Count I – Violation of the Administrative Procedure Act Contrary to Law
135. Plaintiffs incorporate by reference the allegations contained in the preceding paragraphs.
136. Under the Administrative Procedure Act, a reviewing court shall hold unlawful agency action that is “not in accordance with law,” “contrary to constitutional right, power, privilege, or immunity,” or is “in excess of statutory jurisdiction, authority, or limitations.” 5 U.S.C. § 706(2)(A)-(C).
137. Defendants are agencies under the APA. 5 U.S.C. § 551(1).
138. Executive agencies must follow the laws that govern their conduct and may not engage in any conduct not authorized by law.
139. Congress has authorized and appropriated funds, including under the IRA and IIJA, that have since been obligated to the Commonwealth agencies.
140. Defendant agencies possess no authority to refuse to disburse funds authorized and appropriated by Congress and obligated to Pennsylvania agencies.
141. Defendant agencies possess no authority to terminate funding agreements with Pennsylvania agencies for reasons not identified in statute or a funding agreement between the federal and state agencies.
142. Defendant agencies possess no authority to impose new conditions on funds that already have been obligated to Pennsylvania agencies beyond the conditions that exist under statute or the existing funding agreement.
143. Defendant agencies’ duty is to execute the laws that Congress has passed, including laws appropriating funds, rather than amend or repeal them.
144. By refusing to disburse congressionally authorized and appropriated funds that have been obligated to the Commonwealth agencies, the Defendant agencies are acting in violation of the law.
Count II – Violation of the Administrative Procedure Act
Arbitrary and Capricious
145. Plaintiffs incorporate by reference the allegations contained in the preceding paragraphs.
146. Under the Administrative Procedure Act (APA), a reviewing court shall hold unlawful agency action that is “arbitrary” or “capricious.” 5 U.S.C. § 706(2)(A).
147. Agency action is arbitrary or capricious where it is not “reasonable and reasonably explained.” Ohio v. Environmental Protection Agency, 603 U.S. 279, 292 (2024). This standard requires that agencies provide “a satisfactory explanation for its action[,] including a rational connection between the facts found and the choice made.” Id.
148. The pause of the disbursement of federal money is arbitrary and capricious.
149. Defendant agencies are withholding federal money that Congress has authorized and appropriated and which has been obligated to Commonwealth agencies without providing any discernable standard or reasonable basis by which the decisions to freeze the disbursement of federal funds are being made.
150. The EOs that the Defendant agencies have referenced in support of their withholding funds cannot modify the statutory requirement to disburse already obligated funds nor amend the conditions under which funds have already been awarded to Commonwealth agencies.
151. The EOs that Defendant agencies have referenced in support of their withholding funds do not provide a reasoned standard for why or when agencies should refuse to disburse appropriated, obligated funds.
152. Defendant agencies’ decisions to immediately suspend billions of dollars in federal funds committed to Pennsylvania failed to consider reliance interests Pennsylvania’s agencies have in receiving those funds or the harm caused by such suspensions.
153. Additionally, subjecting disbursement of appropriated, obligated funds to unspecified and indeterminate agency review is arbitrary and capricious.
154. By refusing to disburse congressionally appropriated funds that have since been obligated to the Commonwealth agencies, without any reasoned standard for their decisions, the Defendant agencies are acting arbitrarily and capriciously.
Count III – Unconstitutional Withholding of Funds
155. Plaintiffs incorporate by reference the allegations contained in the preceding paragraphs.
156. Under the U.S. Constitution, it is the President’s and the Executive Branch’s duty to “take Care that the laws by faithfully executed.” U.S. Const. art. II, § 3. Of course, the laws that must be faithfully executed are those that have “passed the House of Representatives and the Senate” and then “presented to the President of the United States.” U.S. Const. art. I, § 7.
157. Where Congress passes a law through its power under the Spending Clause of the U.S. Constitution, any conditions it imposes on the receipt of federal funds must be “unambiguous[]” and cannot “surprise[] participating States with post acceptance or ‘retroactive’ conditions.” Pennhurst State Sch. & Hosp. v. Halderman, 451 U.S. 1, 17, 25 (1981).
158. Once a State has accepted funds pursuant to a federal spending program, the Federal government cannot alter the conditions attached to those funds so significantly as to “accomplish[ ] a shift in kind, not merely degree.” Nat’l Fed’n of Indep. Bus. v. Sebelius, 567 U.S. 519, 583-84 (2012). Further, whatever conditions Congress imposes on the receipt of funding funds must be “reasonably related to the purpose of the expenditure.” New York v. United States, 505 U.S. 144, 172 (1992) (citing Mass. v. United States, 435 U.S. 444 (1978)).
159. Neither the President nor any executive branch agency has the power to unilaterally enact, amend, or repeal any statute. That is as true of a statute appropriating funds as it is any other statute.
160. New conditions may not be added to the receipt of federal funds after a state has already accepted those funds. Nor can federal funds be terminated for reasons not specifically articulated by law or in a funding agreement entered into by state and federal agencies.
161. The President and executive branch agencies have an obligation to execute the laws that have been properly enacted.
162. Defendant agencies’ withholding of appropriated, obligated funds violates these fundamental constitutional tenets and is therefore unconstitutional.
163. By seeking to impose new conditions on funds that have already been appropriated and obligated to the Commonwealth agencies, and by terminating federal funds for reasons not clearly articulated in statute or at the time Commonwealth agencies received funds, Defendant agencies have violated the U.S. Constitution’s Spending Clause.
PRAYER FOR RELIEF
Plaintiffs respectfully ask that this Court enter the following relief:
a. Declare that Defendant agencies’ implementation of President Trump’s executive orders, or of OMB’s directives implementing those executive orders, by withholding congressionally appropriated federal funds that have been obligated to the Pennsylvania agencies is contrary to law;
b. Declare that Defendant agencies’ withholding of congressionally appropriated federal funds that have been obligated to the Pennsylvania agencies is contrary to law;
c. Declare that Defendant agencies’ implementation of President Trump’s executive orders, or of OMB’s directives implementing those executive orders, by withholding congressionally appropriated federal funds that have been obligated to the Pennsylvania agencies is arbitrary and capricious;
d. Declare that Defendant agencies’ withholding of congressionally appropriated federal funds that have been obligated to the Pennsylvania agencies is arbitrary and capricious;
e. Declare that Defendant agencies’ implementation of President Trump’s executive orders, or of OMB’s directives implementing those executive orders, by withholding congressionally appropriated federal funds that have been obligated to the Pennsylvania agencies violates the U.S. Constitution;
f. Declare that Defendant agencies’ withholding of congressionally appropriated federal funds that have been obligated to the Pennsylvania agencies violates the U.S. Constitution;
g. Enjoin the Defendant agencies from freezing, pausing, conditioning, or otherwise interfering with, the disbursement of any congressionally appropriated funds that have been obligated to the Pennsylvania agencies where Defendant agencies have no specific statutory to do so;
h. Award plaintiffs’ costs and reasonable attorneys’ fees, as appropriate; and
i. Grant any other relief the Court deems just and appropriate.
February 13, 2025
Respectfully submitted,
s/ Jacob B. Boyer
Jacob B. Boyer (Pa. No. 324396)
Michael J. Fischer (Pa. No. 322311)
Stephen R. Kovatis (Pa. No. 209495)
Office of General Counsel
30 North Street, Suite 200
Harrisburg, PA 17101
[email protected]
(717) 460-6786
Counsel for Plaintiffs
_______________
Notes:
1 Available at: https://www.whitehouse.gov/briefings-st ... o-m-25-11/.
2 Available at: https://x.com/PressSec/status/1884672871944901034.
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UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
STATE OF NEW YORK; STATE OF CALIFORNIA; STATE OF ILLINOIS; STATE OF RHODE ISLAND; STATE OF NEW JERSEY; COMMONWEALTH OF MASSACHUSETTS; STATE OF ARIZONA; STATE OF COLORADO; STATE OF CONNECTICUT; STATE OF DELAWARE; THE DISTRICT OF COLUMBIA; STATE OF HAWAI’I; STATE OF MAINE; STATE OF MARYLAND; STATE OF MICHIGAN; STATE OF MINNESOTA; STATE OF NEVADA; STATE OF NORTH CAROLINA; STATE OF NEW MEXICO; STATE OF OREGON; STATE OF VERMONT; STATE OF WASHINGTON; and STATE OF WISCONSIN,
Plaintiffs,
v.
DONALD TRUMP, in his Official Capacity as President of the United States; U.S. OFFICE OF MANAGEMENT AND BUDGET; MATTHEW J. VAETH, in his Official Capacity as Acting Director of the U.S. Office of Management and Budget; U.S. DEPARTMENT OF THE TREASURY; SCOTT BESSENT, in his Official Capacity as Secretary of the Treasury; PATRICIA COLLINS, in her Official Capacity as Treasurer of the U.S.; U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES; DOROTHY A. FINK, M.D., in her Official Capacity As Acting Secretary Of Health And Human Services; U.S. DEPARTMENT OF EDUCATION; DENISE CARTER, in her Official Capacity as Acting Secretary of Education; U.S. FEDERAL EMERGENCY MANAGEMENT AGENCY; CAMERON HAMILTON, in his Official Capacity as Acting Administrator of the U.S. Federal Emergency Management Agency; U.S. DEPARTMENT OF TRANSPORTATION; JUDITH KALETA, in her Official Capacity as Acting Secretary of Transportation; U.S. DEPARTMENT OF LABOR; VINCE MICONE, in his Official Capacity as Acting Secretary of Labor; U.S. DEPARTMENT OF ENERGY; INGRID KOLB, in her Official Capacity as Acting Secretary of the U.S. Department of Energy; U.S. ENVIRONMENTAL PROTECTION AGENCY; JAMES PAYNE, in his Official Capacity as Acting Administrator of the U.S. Environmental Protection Agency; U.S. DEPARTMENT OF HOMELAND SECURITY; KRISTI NOEM, in her Capacity as Secretary of the U.S. Department of Homeland Security; U.S. DEPARTMENT OF JUSTICE; JAMES R. McHENRY III, in his Official Capacity as Acting Attorney General of the U.S. Department of Justice; THE NATIONAL SCIENCE FOUNDATION; and DR. SETHURAMAN PANCHANATHAN, in his Capacity as Director of the National Science Foundation,
Defendants.
Case 1:25-cv-00039-JJM-PAS
Document 50
Filed 01/31/25
TEMPORARY RESTRAINING ORDER
The legal standard for a Temporary Restraining Order (“TRO”) mirrors that of a preliminary injunction. The Plaintiff States must show that weighing these four factors favors granting a TRO:
1. likelihood of success on the merits;
2. potential for irreparable injury;
3. balance of the relevant equities; and
4. effect on the public interest if the Court grants or denies the TRO.
Planned Parenthood League v. Bellotti, 641 F.2d 1006, 1009 (1st Cir. 1981). The traditional equity doctrine that preliminary injunctive relief is an extraordinary and drastic remedy that is never awarded as of right guides the Court. Id. The Court is also fully aware of the judiciary’s role as one of the three independent branches of government, and that the doctrine of separation of powers restricts its reach into the Executive Branch. The Court now turns to the four factors.
Likelihood of Success on the Merits
We begin with what courts have called a key factor—a consideration of the movant’s likelihood of success on the merits.
In Count I, the States allege that the Executive’s actions by the Office of Management and Budget (“OMB”)1 violate the Administrative Procedure Act (“APA”)2 because Congress has not delegated any unilateral authority to the Executive to indefinitely pause all federal financial assistance without considering the statutory and contractual terms governing these billions of dollars of grants.
In Count II, the States allege that the Executive’s actions violate the APA because the failure to spend funds appropriated by Congress is arbitrary and capricious in multiple respects.
In Count III, the States allege that the failure to spend funds appropriated by Congress violates the separation of powers because the Executive has overridden Congress’ judgments by refusing to disburse already-allocated funding for many federal grant programs.
In Count IV, the States allege a violation of the Spending Clause of the U.S. Constitution. U.S. Const. art. I, § 8, cl. law 1.
And in Count V, the States allege a violation of the presentment (U.S. Const. art. I, § 7, cl. 2), appropriations (U.S. Const. art. I, § 7), and take care clauses (U.S. Const. art. II, § 3, cl. 3) (the Executive must “take care that the laws be faithfully executed . . .”).
Because of the breadth and ambiguity of the “pause,” the Court must consider the States’ TRO motion today based on the effect it will have on many—but perhaps not all—grants and programs it is intended to cover. Are there some aspects of the pause that might be legal and appropriate constitutionally for the Executive to take? The Court imagines there are, but it is equally sure that there are many instances in the Executive Orders’ wide-ranging, all-encompassing, and ambiguous “pause” of critical funding that are not. The Court must act in these early stages of the litigation under the “worst case scenario” because the breadth and ambiguity of the Executive’s action makes it impossible to do otherwise.
The Court finds that, based on the evidence before it now, some of which is set forth below, the States are likely to succeed on the merits of some, if not all, their claims. The reasons are as follows:
• The Executive’s action unilaterally suspends the payment of federal funds to the States and others simply by choosing to do so, no matter the authorizing or appropriating statute, the regulatory regime, or the terms of the grant itself. The Executive cites no legal authority allowing it to do so; indeed, no federal law would authorize the Executive’s unilateral action here.
• Congress has instructed the Executive to provide funding to States based on stated statutory factors—for example, population or the expenditure of qualifying State funds. By trying to impose certain conditions on this funding, the Executive has acted contrary to law and in violation of the APA.
• The Executive Orders threaten the States’ ability to conduct essential activities and gave the States and others less than 24 hours’ notice of this arbitrary pause, preventing them from making other plans or strategizing how they would continue to function without these promised funds.
• Congress appropriated many of these funds, and the Executive’s refusal to disburse them is contrary to congressional intent and directive and thus arbitrary and capricious.
• Congress has not given the Executive limitless power to broadly and indefinitely pause all funds that it has expressly directed to specific recipients and purposes and therefore the Executive’s actions violate the separation of powers.
Judge Bruce M. Selya of the First Circuit succinctly set out the black letter law about appropriated funds and Executive powers:
City of Providence v. Barr, 954 F.3d 23, 31 (1st Cir. 2020).
The Executive’s statement that the Executive Branch has a duty “to align Federal spending and action with the will of the American people as expressed through Presidential priorities,” (ECF No. 48-1 at 11) (emphasis added) is a constitutionally flawed statement. The Executive Branch has a duty to align federal spending and action with the will of the people as expressed through congressional appropriations, not through “Presidential priorities.” U.S. Const. art. II, § 3, cl. 3 (establishing that the Executive must “take care that the laws be faithfully executed . . .”). Federal law specifies how the Executive should act if it believes that appropriations are inconsistent with the President’s priorities -- it must ask Congress, not act unilaterally. The Impoundment Control Act of 1974 specifies that the President may ask that Congress rescind appropriated funds.3 Here, there is no evidence that the Executive has followed the law by notifying Congress and thereby effectuating a potentially legally permitted so-called “pause.”
Justice Brett Kavanaugh wrote when he was on the D.C. Circuit:
In re Aiken Cnty., 725 F.3d 255, 261, n.1 (D.C. Cir. 2013).
The Court finds that the record now before it substantiates the likelihood of a successful claim that the Executive’s actions violate the Constitution and statutes of the United States.
The Court now moves on to the remaining three injunction considerations.
Irreparable Harm
The States have put forth sufficient evidence at this stage that they will likely suffer severe and irreparable harm if the Court denies their request to enjoin enforcement of the funding pause.
• All the States rely on federal funds to provide and maintain vital programs and services and have introduced evidence that the withholding of federal funds will cause severe disruption in their ability to administer such vital services–even if it is for a brief time.
• The States detail many examples of where the Executive’s overarching pause on funding that Congress has allocated will harm them and their citizens. These programs range from highway planning and construction, childcare, veteran nursing care funding, special education grants, and state health departments, who receive billions of dollars to run programs that maintain functional health systems. See, e.g., ECF No. 3-1 at 56 (highway construction programs in Delaware), at 73 (childcare programs in Michigan), at 113 (veterans nursing care funding in Washington state), at 77 (special education programs in Minnesota), and at 100–01 (health care programs in New Mexico).
• The pause in federal funding will also hurt current disaster relief efforts. The States assert that the pause applies to federal actions directing federal financial assistance to North Carolina to address the damage inflicted by Hurricane Helene and to any Federal Emergency Management Agency grant money not yet disbursed, including key support for California’s ongoing response to the fires. ECF No. 1 ¶¶ 80–81.
• A January 28, 2025, email from Shannon Kelly, the Director of the National High Intensity Drug Case Trafficking Areas (HIDTA) program, who aids law enforcement in high drug-trafficking areas, shows that payments to state-based HIDTA programs have been paused, putting the public’s safety at risk. Id. ¶ 83.
The States have set forth facts showing that the Executive’s abrupt “pause” in potentially trillions of dollars of federal funding will cause a ripple effect that would directly impact the States and other’s ability to provide and administer vital services and relief to their citizens. Thus, the federal grants to States and others that are impounded through the Executive’s pause in disbursement will cause irreparable harm.
And it is more than monetary harm that is at stake here. As Justice Anthony Kennedy reminds us, “Liberty is always at stake when one or more of the branches seek to transgress the separation of powers.” Clinton v. City of New York, 524 U.S. 417, 449–50 (1998) (Kennedy, J. concurring)
Balance of the Equities and Public Interest
As the Court considers the final two factors, the record shows that the balance of equities weighs heavily in favor of granting the States’ TRO.
• If the Defendants are prevented from enforcing the directive contained in the OMB Directive, they merely would have to disburse funds that Congress has appropriated to the States and others.
• On the other hand, if the Court denies the TRO, the funding that the States and others are presumably due under law is in an indefinite limbo—a hardship worsened by the fact that the States had less than 24 hours’ notice to act in anticipation of the funding shortfall.
• The fact that the States have shown a likelihood of success on the merits strongly suggests that a TRO would serve the public interest. Moreover, the public interest further favors a TRO because absent such an order, there is a substantial risk that the States and its citizens will face a significant disruption in health, education, and other public services that are integral to their daily lives due to this pause in federal funding.
The evidence in the record at this point shows that, despite the rescission of the OMB Directive, the Executive’s decision to pause appropriated federal funds “remains in full force and effect.” ECF No. 44.
Mootness
The Defendants now claim that this matter is moot because it rescinded the OMB Directive. But the evidence shows that the alleged rescission of the OMB Directive was in name-only and may have been issued simply to defeat the jurisdiction of the courts. The substantive effect of the directive carries on.
Messaging from the White House and agencies proves the point. At 2:04 EST, less than an hour before the Court’s hearing on the States’ motion on Wednesday, the Defendants filed a Notice saying, “OMB elected to rescind that challenged Memorandum. See OMB Mem. M-25-14, Rescission of M-25-13 (Jan. 28, 2025) (‘OMB Memorandum M-25-13 is rescinded.’).” ECF No. 43. Yet about twenty minutes before the Defendants filed the Notice, the President’s Press Secretary sent a statement via the X platform that said: “The President’s [Executive Orders] EO’s on federal funding remain in full force and effect and will be rigorously implemented.” ECF No. 44. And then the following day (January 30, 2025 at 7:50 MST and again at 5:27 p.m. EST) after the so-called rescission, the Environmental Protection Agency, in an email to federal grant recipients, said that the awarded money could not be disbursed while it worked “diligently to implement the [OMB] Memorandum, Temporary Pause of Agency Grant, Loan, and Other Financial Assistance Programs, to align Federal spending and action with the will of the American people as expressed through President Trump’s priorities. The agency is temporarily pausing all activities related to the obligation or disbursement of EPA Federal financial assistance at this time. EPA is continuing to work with OMB as they review processes, policies, and programs, as required by the memorandum.” ECF No. 48-1 at 6, 11.
Based on the Press Secretary’s unequivocal statement and the continued actions of Executive agencies, the Court finds that the policies in the OMB Directive that the States challenge here are still in full force and effect and thus the issues presented in the States’ TRO motion are not moot.
Conclusion
Consistent with the findings above, and to keep the status quo, the Court hereby ORDERS that a TEMPORARY RESTRAINING ORDER is entered in this case until this Court rules on the States’ forthcoming motion for a preliminary injunction, which the States shall file expeditiously.
During the pendency of the Temporary Restraining Order, Defendants shall not pause, freeze, impede, block, cancel, or terminate Defendants’ compliance with awards and obligations to provide federal financial assistance to the States, and Defendants shall not impede the States’ access to such awards and obligations, except on the basis of the applicable authorizing statutes, regulations, and terms.
If Defendants engage in the “identif[ication] and review” of federal financial assistance programs, as identified in the OMB Directive, such exercise shall not affect a pause, freeze, impediment, block, cancellation, or termination of Defendants’ compliance with such awards and obligations, except on the basis of the applicable authorizing statutes, regulations, and terms.
Defendants shall also be restrained and prohibited from reissuing, adopting, implementing, or otherwise giving effect to the OMB Directive under any other name or title or through any other Defendants (or agency supervised, administered, or controlled by any Defendant), such as the continued implementation identified by the White House Press Secretary’s statement of January 29, 2025. ECF No. 44.
Defendants’ attorneys shall provide written notice of this Order to all Defendants and agencies and their employees, contractors, and grantees by Monday, February 3, 2025, at 9 a.m. Defendants shall file a copy of the notice on the docket at the same time.
Defendants shall comply with all notice and procedural requirements in the award, agreement, or other instrument relating to decisions to stop, delay, or otherwise withhold federal financial assistance programs.
The TRO shall be in effect until further Order of this Court. A preliminary hearing, at which time the States will have to produce specific evidence in support of a preliminary injunction, will be set shortly at a day and time that is convenient to the parties and the Court.
IT IS SO ORDERED.
s/John J. McConnell, Jr.
_________________________________
John J. McConnell, Jr.
Chief Judge
United States District Court for the District of Rhode Island
January 31, 2025
_______________
Notes:
1 See supra for discussion of mootness.
2 5 U.S.C. § 551 et seq.
3 If both the Senate and the House of Representatives have not approved a rescission proposal (by passing legislation) within forty-five days of continuous session, any funds the Executive is withholding must be made available for obligation.
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
STATE OF NEW YORK; STATE OF CALIFORNIA; STATE OF ILLINOIS; STATE OF RHODE ISLAND; STATE OF NEW JERSEY; COMMONWEALTH OF MASSACHUSETTS; STATE OF ARIZONA; STATE OF COLORADO; STATE OF CONNECTICUT; STATE OF DELAWARE; THE DISTRICT OF COLUMBIA; STATE OF HAWAI’I; STATE OF MAINE; STATE OF MARYLAND; STATE OF MICHIGAN; STATE OF MINNESOTA; STATE OF NEVADA; STATE OF NORTH CAROLINA; STATE OF NEW MEXICO; STATE OF OREGON; STATE OF VERMONT; STATE OF WASHINGTON; and STATE OF WISCONSIN,
Plaintiffs,
v.
DONALD TRUMP, in his Official Capacity as President of the United States; U.S. OFFICE OF MANAGEMENT AND BUDGET; MATTHEW J. VAETH, in his Official Capacity as Acting Director of the U.S. Office of Management and Budget; U.S. DEPARTMENT OF THE TREASURY; SCOTT BESSENT, in his Official Capacity as Secretary of the Treasury; PATRICIA COLLINS, in her Official Capacity as Treasurer of the U.S.; U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES; DOROTHY A. FINK, M.D., in her Official Capacity As Acting Secretary Of Health And Human Services; U.S. DEPARTMENT OF EDUCATION; DENISE CARTER, in her Official Capacity as Acting Secretary of Education; U.S. FEDERAL EMERGENCY MANAGEMENT AGENCY; CAMERON HAMILTON, in his Official Capacity as Acting Administrator of the U.S. Federal Emergency Management Agency; U.S. DEPARTMENT OF TRANSPORTATION; JUDITH KALETA, in her Official Capacity as Acting Secretary of Transportation; U.S. DEPARTMENT OF LABOR; VINCE MICONE, in his Official Capacity as Acting Secretary of Labor; U.S. DEPARTMENT OF ENERGY; INGRID KOLB, in her Official Capacity as Acting Secretary of the U.S. Department of Energy; U.S. ENVIRONMENTAL PROTECTION AGENCY; JAMES PAYNE, in his Official Capacity as Acting Administrator of the U.S. Environmental Protection Agency; U.S. DEPARTMENT OF HOMELAND SECURITY; KRISTI NOEM, in her Capacity as Secretary of the U.S. Department of Homeland Security; U.S. DEPARTMENT OF JUSTICE; JAMES R. McHENRY III, in his Official Capacity as Acting Attorney General of the U.S. Department of Justice; THE NATIONAL SCIENCE FOUNDATION; and DR. SETHURAMAN PANCHANATHAN, in his Capacity as Director of the National Science Foundation,
Defendants.
Case 1:25-cv-00039-JJM-PAS
Document 50
Filed 01/31/25
The Executive’s statement that the Executive Branch has a duty “to align Federal spending and action with the will of the American people as expressed through Presidential priorities,” (ECF No. 48-1 at 11) (emphasis added) is a constitutionally flawed statement. The Executive Branch has a duty to align federal spending and action with the will of the people as expressed through congressional appropriations, not through “Presidential priorities.” U.S. Const. art. II, § 3, cl. 3 (establishing that the Executive must “take care that the laws be faithfully executed . . .”)
TEMPORARY RESTRAINING ORDER
The legal standard for a Temporary Restraining Order (“TRO”) mirrors that of a preliminary injunction. The Plaintiff States must show that weighing these four factors favors granting a TRO:
1. likelihood of success on the merits;
2. potential for irreparable injury;
3. balance of the relevant equities; and
4. effect on the public interest if the Court grants or denies the TRO.
Planned Parenthood League v. Bellotti, 641 F.2d 1006, 1009 (1st Cir. 1981). The traditional equity doctrine that preliminary injunctive relief is an extraordinary and drastic remedy that is never awarded as of right guides the Court. Id. The Court is also fully aware of the judiciary’s role as one of the three independent branches of government, and that the doctrine of separation of powers restricts its reach into the Executive Branch. The Court now turns to the four factors.
Likelihood of Success on the Merits
We begin with what courts have called a key factor—a consideration of the movant’s likelihood of success on the merits.
In Count I, the States allege that the Executive’s actions by the Office of Management and Budget (“OMB”)1 violate the Administrative Procedure Act (“APA”)2 because Congress has not delegated any unilateral authority to the Executive to indefinitely pause all federal financial assistance without considering the statutory and contractual terms governing these billions of dollars of grants.
In Count II, the States allege that the Executive’s actions violate the APA because the failure to spend funds appropriated by Congress is arbitrary and capricious in multiple respects.
In Count III, the States allege that the failure to spend funds appropriated by Congress violates the separation of powers because the Executive has overridden Congress’ judgments by refusing to disburse already-allocated funding for many federal grant programs.
In Count IV, the States allege a violation of the Spending Clause of the U.S. Constitution. U.S. Const. art. I, § 8, cl. law 1.
And in Count V, the States allege a violation of the presentment (U.S. Const. art. I, § 7, cl. 2), appropriations (U.S. Const. art. I, § 7), and take care clauses (U.S. Const. art. II, § 3, cl. 3) (the Executive must “take care that the laws be faithfully executed . . .”).
Because of the breadth and ambiguity of the “pause,” the Court must consider the States’ TRO motion today based on the effect it will have on many—but perhaps not all—grants and programs it is intended to cover. Are there some aspects of the pause that might be legal and appropriate constitutionally for the Executive to take? The Court imagines there are, but it is equally sure that there are many instances in the Executive Orders’ wide-ranging, all-encompassing, and ambiguous “pause” of critical funding that are not. The Court must act in these early stages of the litigation under the “worst case scenario” because the breadth and ambiguity of the Executive’s action makes it impossible to do otherwise.
The Court finds that, based on the evidence before it now, some of which is set forth below, the States are likely to succeed on the merits of some, if not all, their claims. The reasons are as follows:
• The Executive’s action unilaterally suspends the payment of federal funds to the States and others simply by choosing to do so, no matter the authorizing or appropriating statute, the regulatory regime, or the terms of the grant itself. The Executive cites no legal authority allowing it to do so; indeed, no federal law would authorize the Executive’s unilateral action here.
• Congress has instructed the Executive to provide funding to States based on stated statutory factors—for example, population or the expenditure of qualifying State funds. By trying to impose certain conditions on this funding, the Executive has acted contrary to law and in violation of the APA.
• The Executive Orders threaten the States’ ability to conduct essential activities and gave the States and others less than 24 hours’ notice of this arbitrary pause, preventing them from making other plans or strategizing how they would continue to function without these promised funds.
• Congress appropriated many of these funds, and the Executive’s refusal to disburse them is contrary to congressional intent and directive and thus arbitrary and capricious.
• Congress has not given the Executive limitless power to broadly and indefinitely pause all funds that it has expressly directed to specific recipients and purposes and therefore the Executive’s actions violate the separation of powers.
Judge Bruce M. Selya of the First Circuit succinctly set out the black letter law about appropriated funds and Executive powers:
When an executive agency administers a federal statute, the agency’s power to act is “authoritatively prescribed by Congress.” City of Arlington v. FCC, 569 U.S. 290, 297, 133 S. Ct. 1863, 185 L. Ed. 2d 941 (2013). It is no exaggeration to say that “an agency literally has no power to act ... unless and until Congress confers power upon it.” La. Pub. Serv. Comm’n v. FCC, 476 U.S. 355, 374, 106 S. Ct. 1890, 90 L. Ed. 2d 369 (1986). Any action that an agency takes outside the bounds of its statutory authority is ultra vires, see City of Arlington, 569 U.S. at 297, 133 S. Ct. 1863, and violates the Administrative Procedure Act, see 5 U.S.C. § 706(2)(C).
City of Providence v. Barr, 954 F.3d 23, 31 (1st Cir. 2020).
The Executive’s statement that the Executive Branch has a duty “to align Federal spending and action with the will of the American people as expressed through Presidential priorities,” (ECF No. 48-1 at 11) (emphasis added) is a constitutionally flawed statement. The Executive Branch has a duty to align federal spending and action with the will of the people as expressed through congressional appropriations, not through “Presidential priorities.” U.S. Const. art. II, § 3, cl. 3 (establishing that the Executive must “take care that the laws be faithfully executed . . .”). Federal law specifies how the Executive should act if it believes that appropriations are inconsistent with the President’s priorities -- it must ask Congress, not act unilaterally. The Impoundment Control Act of 1974 specifies that the President may ask that Congress rescind appropriated funds.3 Here, there is no evidence that the Executive has followed the law by notifying Congress and thereby effectuating a potentially legally permitted so-called “pause.”
Justice Brett Kavanaugh wrote when he was on the D.C. Circuit:
Like the Commission here, a President sometimes has policy reasons (as distinct from constitutional reasons, cf. infra note 3) for wanting to spend less than the full amount appropriated by Congress for a particular project or program. But in those circumstances, even the President does not have unilateral authority to refuse to spend the funds. Instead, the President must propose the rescission of funds, and Congress then may decide whether to approve a rescission bill. See 2 U.S.C. § 683; see also Train v. City of New York, 420 U.S. 35, 95 S. Ct. 839, 43 L. Ed. 2d 1 (1975); Memorandum from William H. Rehnquist, Assistant Attorney General, Office of Legal Counsel, to Edward L. Morgan, Deputy Counsel to the President (Dec. 1, 1969), reprinted in Executive Impoundment of Appropriated Funds: Hearings Before the Subcomm. on Separation of Powers of the S. Comm. on the Judiciary, 92d Cong. 279, 282 (1971) (“With respect to the suggestion that the President has a constitutional power to decline to spend appropriated funds, we must conclude that existence of such a broad power is supported by neither reason nor precedent.”)
In re Aiken Cnty., 725 F.3d 255, 261, n.1 (D.C. Cir. 2013).
The Court finds that the record now before it substantiates the likelihood of a successful claim that the Executive’s actions violate the Constitution and statutes of the United States.
The Court now moves on to the remaining three injunction considerations.
Irreparable Harm
The States have put forth sufficient evidence at this stage that they will likely suffer severe and irreparable harm if the Court denies their request to enjoin enforcement of the funding pause.
• All the States rely on federal funds to provide and maintain vital programs and services and have introduced evidence that the withholding of federal funds will cause severe disruption in their ability to administer such vital services–even if it is for a brief time.
• The States detail many examples of where the Executive’s overarching pause on funding that Congress has allocated will harm them and their citizens. These programs range from highway planning and construction, childcare, veteran nursing care funding, special education grants, and state health departments, who receive billions of dollars to run programs that maintain functional health systems. See, e.g., ECF No. 3-1 at 56 (highway construction programs in Delaware), at 73 (childcare programs in Michigan), at 113 (veterans nursing care funding in Washington state), at 77 (special education programs in Minnesota), and at 100–01 (health care programs in New Mexico).
• The pause in federal funding will also hurt current disaster relief efforts. The States assert that the pause applies to federal actions directing federal financial assistance to North Carolina to address the damage inflicted by Hurricane Helene and to any Federal Emergency Management Agency grant money not yet disbursed, including key support for California’s ongoing response to the fires. ECF No. 1 ¶¶ 80–81.
• A January 28, 2025, email from Shannon Kelly, the Director of the National High Intensity Drug Case Trafficking Areas (HIDTA) program, who aids law enforcement in high drug-trafficking areas, shows that payments to state-based HIDTA programs have been paused, putting the public’s safety at risk. Id. ¶ 83.
The States have set forth facts showing that the Executive’s abrupt “pause” in potentially trillions of dollars of federal funding will cause a ripple effect that would directly impact the States and other’s ability to provide and administer vital services and relief to their citizens. Thus, the federal grants to States and others that are impounded through the Executive’s pause in disbursement will cause irreparable harm.
And it is more than monetary harm that is at stake here. As Justice Anthony Kennedy reminds us, “Liberty is always at stake when one or more of the branches seek to transgress the separation of powers.” Clinton v. City of New York, 524 U.S. 417, 449–50 (1998) (Kennedy, J. concurring)
Balance of the Equities and Public Interest
As the Court considers the final two factors, the record shows that the balance of equities weighs heavily in favor of granting the States’ TRO.
• If the Defendants are prevented from enforcing the directive contained in the OMB Directive, they merely would have to disburse funds that Congress has appropriated to the States and others.
• On the other hand, if the Court denies the TRO, the funding that the States and others are presumably due under law is in an indefinite limbo—a hardship worsened by the fact that the States had less than 24 hours’ notice to act in anticipation of the funding shortfall.
• The fact that the States have shown a likelihood of success on the merits strongly suggests that a TRO would serve the public interest. Moreover, the public interest further favors a TRO because absent such an order, there is a substantial risk that the States and its citizens will face a significant disruption in health, education, and other public services that are integral to their daily lives due to this pause in federal funding.
The evidence in the record at this point shows that, despite the rescission of the OMB Directive, the Executive’s decision to pause appropriated federal funds “remains in full force and effect.” ECF No. 44.
Mootness
The Defendants now claim that this matter is moot because it rescinded the OMB Directive. But the evidence shows that the alleged rescission of the OMB Directive was in name-only and may have been issued simply to defeat the jurisdiction of the courts. The substantive effect of the directive carries on.
Messaging from the White House and agencies proves the point. At 2:04 EST, less than an hour before the Court’s hearing on the States’ motion on Wednesday, the Defendants filed a Notice saying, “OMB elected to rescind that challenged Memorandum. See OMB Mem. M-25-14, Rescission of M-25-13 (Jan. 28, 2025) (‘OMB Memorandum M-25-13 is rescinded.’).” ECF No. 43. Yet about twenty minutes before the Defendants filed the Notice, the President’s Press Secretary sent a statement via the X platform that said: “The President’s [Executive Orders] EO’s on federal funding remain in full force and effect and will be rigorously implemented.” ECF No. 44. And then the following day (January 30, 2025 at 7:50 MST and again at 5:27 p.m. EST) after the so-called rescission, the Environmental Protection Agency, in an email to federal grant recipients, said that the awarded money could not be disbursed while it worked “diligently to implement the [OMB] Memorandum, Temporary Pause of Agency Grant, Loan, and Other Financial Assistance Programs, to align Federal spending and action with the will of the American people as expressed through President Trump’s priorities. The agency is temporarily pausing all activities related to the obligation or disbursement of EPA Federal financial assistance at this time. EPA is continuing to work with OMB as they review processes, policies, and programs, as required by the memorandum.” ECF No. 48-1 at 6, 11.
Based on the Press Secretary’s unequivocal statement and the continued actions of Executive agencies, the Court finds that the policies in the OMB Directive that the States challenge here are still in full force and effect and thus the issues presented in the States’ TRO motion are not moot.
Conclusion
Consistent with the findings above, and to keep the status quo, the Court hereby ORDERS that a TEMPORARY RESTRAINING ORDER is entered in this case until this Court rules on the States’ forthcoming motion for a preliminary injunction, which the States shall file expeditiously.
During the pendency of the Temporary Restraining Order, Defendants shall not pause, freeze, impede, block, cancel, or terminate Defendants’ compliance with awards and obligations to provide federal financial assistance to the States, and Defendants shall not impede the States’ access to such awards and obligations, except on the basis of the applicable authorizing statutes, regulations, and terms.
If Defendants engage in the “identif[ication] and review” of federal financial assistance programs, as identified in the OMB Directive, such exercise shall not affect a pause, freeze, impediment, block, cancellation, or termination of Defendants’ compliance with such awards and obligations, except on the basis of the applicable authorizing statutes, regulations, and terms.
Defendants shall also be restrained and prohibited from reissuing, adopting, implementing, or otherwise giving effect to the OMB Directive under any other name or title or through any other Defendants (or agency supervised, administered, or controlled by any Defendant), such as the continued implementation identified by the White House Press Secretary’s statement of January 29, 2025. ECF No. 44.
Defendants’ attorneys shall provide written notice of this Order to all Defendants and agencies and their employees, contractors, and grantees by Monday, February 3, 2025, at 9 a.m. Defendants shall file a copy of the notice on the docket at the same time.
Defendants shall comply with all notice and procedural requirements in the award, agreement, or other instrument relating to decisions to stop, delay, or otherwise withhold federal financial assistance programs.
The TRO shall be in effect until further Order of this Court. A preliminary hearing, at which time the States will have to produce specific evidence in support of a preliminary injunction, will be set shortly at a day and time that is convenient to the parties and the Court.
IT IS SO ORDERED.
s/John J. McConnell, Jr.
_________________________________
John J. McConnell, Jr.
Chief Judge
United States District Court for the District of Rhode Island
January 31, 2025
_______________
Notes:
1 See supra for discussion of mootness.
2 5 U.S.C. § 551 et seq.
3 If both the Senate and the House of Representatives have not approved a rescission proposal (by passing legislation) within forty-five days of continuous session, any funds the Executive is withholding must be made available for obligation.
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Re: Anti-Anti-Nazi Barbarian Hordes are Knocking Down the Ga
by admin » Wed Feb 19, 2025 1:47 am
https://www.rid.uscourts.gov/sites/rid/ ... plaint.pdf
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
STATE OF NEW YORK, et al.,
Plaintiffs,
v.
DONALD TRUMP, IN HIS OFFICIAL CAPACITY AS PRESIDENT OF THE UNITED STATES, et al.,
Defendants.
C.A. No. 1:25-cv-00039
REQUEST FOR EMERGENCY RELIEF TO ENFORCE TEMPORARY RESTRAINING ORDER OF JANUARY 31, 2025, UPON EVIDENCE OF VIOLATION
PLAINTIFF STATES’ MOTION FOR ENFORCEMENT OF THE TEMPORARY RESTRAINING ORDER
On January 31, 2025, this Court issued a Temporary Restraining Order enjoining Defendants, including the President of the United States, Donald J. Trump, the United States Office of Management and Budget, and the United States Treasury Department, from “reissuing, adopting, implementing, or otherwise giving effect to the OMB Directive under any other name or title or through any other Defendants (or agency supervised, administered, or controlled by any Defendant)” by any means, including through oblique means “such as the continued implementation identified by the White House Press Secretary’s statement of January 29, 2025.” TRO 12, ECF No. 50 (“Order”). Yet Plaintiff States and entities within the Plaintiff States continue to be denied access to federal funds. These denials continue to cause immediate irreparable harm as demonstrated in the temporary restraining order proceedings and will be further demonstrated in support of the Plaintiff States’ request for preliminary injunction, filed simultaneously with this motion. Jobs, lives, and the social fabric of life in the Plaintiff States are at risk from the disruptions and uncertainty that have continued now a full week after entry of the Order. As this Court noted, executive action that is “in name-only and may have” proceeded “simply to defeat the jurisdiction of the courts” weighs in favor of temporary but decisive action. Order, 10. Unfortunately, such action is once again necessary on an urgent basis.
The sands have only continued to shift since January 31. As explained below, there has been an ever-changing kaleidoscope of federal financial assistance that has been suspended, deleted, in transit, under review, and more since entry of the Order. These conditions persist today. In particular, Defendants have—for the first time this week—taken the position that certain federal funds, including federal financial assistance under the Inflation Reduction Act (“IRA”) and the Infrastructure Improvement and Jobs Act (“IIJA”), is outside the scope of the Court’s Order, a position contradicted by the plain text of the Order and the notice Defendants previously filed with the Court explaining their view of the scope of the Order. See Order 11-12.
And, while it is imaginable that a certain amount of machinery would need to be re-tooled in order to undo the breadth of the Federal Funding Freeze, there is no world in which these scattershot outages, which as of this writing impact billions of dollars in federal funding across the Plaintiff States, can constitute compliance with this Court’s Order. Defendants contemplated an all-of-government “pause” on federal funding could be implemented in the less than 24 hours between when the OMB Directive issued and when it took effect. Yet, as to a number of funding sources that provide critical services in Plaintiffs’ States, the situation has not changed at all nearly a week after the Court’s Order, which noted that “[t]he evidence in the record at this point shows that . . . the Executive’s decision to pause appropriated federal funds [for at least some federal programs] ‘remains in full force and effect.’” Order 10.
Defendants also seek resort to unspecified administrative and operational delays—but these are the delays the Defendants are enjoined from imposing. This Court should enforce the plain text of its temporary restraining order and order Defendants to immediately restore funds and desist from the federal funding pause until the preliminary injunction motion can be heard and decided, a process which is proceeding expeditiously in separate proceedings before this Court.
I. FACTUAL BACKGROUND
A. Court Order
This Court’s Order restrained three types of conduct. First, Defendants shall “not pause, freeze, impede, block, cancel, or terminate Defendants’ compliance with awards and obligations to provide federal financial assistance to the States, and Defendants shall not impede the States’ access to such awards and obligations, except on the basis of the applicable authorizing statutes, regulations, and terms.” Order 11. Second, the Defendants shall not accomplish any of the listed prohibited activities during “‘identif[ication] and review’ of federal financial assistance programs, as identified in the OMB Directive.” Order 12. Third, the Federal Funding Freeze is not to be reinstituted under any name—Defendants are “restrained and prohibited from reissuing, adopting, implementing, or otherwise giving effect to the OMB Directive under any other name or title or through any other Defendants (or agency supervised, administered, or controlled by any Defendant).” Id. Moreover, the Court required affirmative action of the Defendants—that is, if any grant needed to be stopped, delayed, or otherwise withheld in the regular order, Defendants are required to “comply with all notice and procedural requirements in the award, agreement, or other instrument” governing the federal financial assistance at issue. Id.
In addition, in recognition that the scope of the Federal Funding Freeze was vast, the Court ordered Defendants’ attorneys to “provide written notice of this Order to all Defendants and agencies and their employees, contractors, and grantees by Monday, February 3, 2025, at 9 a.m.” and file a copy with the Court at the same time. Id.
B. Defendants’ Subsequent Conduct
1. Notice of Court Order
Defendants filed the Notice of Court Order on Monday, February 3, 2025. In it, Defendants stated their understanding of the scope of the Court’s Order, telling all of their “employees, contractors, and grantees” that “Federal agencies cannot pause, freeze, impede, block, cancel, or terminate any awards or obligations on the basis of the OMB Memo, or on the basis of the President’s recently issued Executive Orders.” Notice of Ct. Order 1, ECF No. 51-1. Defendants accompanied their filing of the Notice with a brief cover memorandum to the Court, which elaborated on their views that:
• the Order did not restrain the “President or his advisors from communicating with federal agencies or the public about the President’s priorities regarding federal spending.”
• the Order did not enjoin “the President’s Executive Orders, which are plainly lawful and unchallenged in this case.”
• the Order did not “impos[e] compliance obligations on federal agencies that are not Defendants in this case.”
2. Noncompliance with Court Order
Despite the Court’s order, Defendants have failed to resume disbursing federal funds in multiple respects.
IRA/IIJA funds. First, Defendants have failed to fully resume disbursing federal funds appropriated by the IRA and IIJA. Plaintiff States’ agencies that receive IRA/IIJA-appropriated funds under final grant agreements have been regularly refreshing federal payment portals—in particular, the Automated Standard Application for Payments (“ASAP”)—to check whether their grants have been restored. For some IRA/IIJA grants, grant accounts have reappeared over the course of the week in ASAP, and federal grantor agencies have communicated to the States that grant accounts are or will shortly be un-suspended. For other IRA/IIJA grants, as of the evening of Wednesday, February 5, grant accounts continue to be missing in ASAP and unavailable for drawing down disbursements; other grant accounts are still flagged as suspended or held “per executive order” or “for agency review.” In these cases, federal grantor agencies have replied to state agency inquiries with receipt-acknowledging non-answers or not replied at all—and often meetings with agency grant offices remain cancelled. The following grants are illustrative, although not exhaustive—many states have had these and other important grants frozen or paused:
• The Climate Pollution Reduction Grant program, administered by EPA and funded by a $5 billion IRA appropriation, supports States, tribes, and local governments in planning and implementing greenhouse-gas reduction measures. For example, the regional air district covering Los Angeles, California received a $500 million award, subject to a final grant agreement, to clean up the highly polluting goods movement corridor between the Imperial Valley’s logistics hubs and warehouses to the Port of Los Angeles. (Ex. 42 to Thomas-Jensen Aff. ¶ 8.)1 As of February 5, this grant and other Climate Pollution Reduction Grants remained inaccessible in ASAP. (Ex. 42 to Thomas-Jensen Aff. ¶¶ 8, 25; Ex. 28 to Thomas-Jensen Aff. ¶¶ 8, 11, 18–19; Ex. 84 to Thomas-Jensen Aff. ¶¶ 10, 11, 15; Ex. 106 to Thomas-Jensen Aff. ¶¶ 41–44; Ex. 83 to Thomas-Jensen Aff. ¶¶ 2, 25; Ex. 56 to Thomas-Jensen Aff. ¶ 12; see also Ex. 20 to Thomas-Jensen Aff. ¶¶ 19, 23 (as of Feb. 4); Ex. 44 to Thomas-Jensen Aff. ¶¶ 35–36 (same); Ex. 49 to Thomas-Jensen Aff. ¶ 19 (same); Ex. 97 to Thomas-Jensen Aff. ¶¶ 4(B), 5, 14 (same); Ex. 61 to Thomas-Jensen Aff. ¶¶ 8, 10 (same)).
• For sixty years, EPA has administered a national air monitoring network and research program under Clean Air Act sections 103 to 105. The IRA appropriated $117.5 million to fund air monitoring grants under this program to increase States’ abilities to detect dangerous pollution like particulate matter (soot) and air toxics, including in disadvantaged communities. These pollutants create a particular public health emergency in areas recovering from wildfires. As of February 5, air monitoring grants remained inaccessible in ASAP. (Ex. 28 to Thomas-Jensen Aff. ¶¶ 7, 18-19; Ex. 97 to Thomas-Jensen Aff. ¶¶ 12, 15; Ex. 42 to Thomas-Jensen Aff. ¶¶ 12-13, 25; Ex. 84 to Thomas-Jensen Aff. ¶¶ 12-13, 15; Ex. 106 to Thomas-Jensen Aff. ¶¶ 58-71; Ex. 73 to Thomas-Jensen Aff. ¶ 8; see also Ex. 23 to Thomas-Jensen Aff. ¶ 12 (as of Feb. 4)).
• The IRA appropriates $4.5 billion to the Department of Energy for the Home Electrification and Appliances Rebates Program. The rebate program, administered by state energy offices under final federal grants, subsidizes low- and moderate-income households’ purchase and installation of electric heat pump water heaters, electric heat pump space heating and cooling systems, and other home electrification projects. Thousands of homeowners across Plaintiff States have signed up for Plaintiff States’ programs, received approvals, and even started installation in reliance on these rebates, and are stuck paying their contractors an extra $8,000 if state energy offices cannot draw down funds. As of February 5, that remained the case: the home rebate grants are held “for agency review” in ASAP. (Ex. 40 to Thomas-Jensen Aff. ¶¶ 8, 11, 37; Ex. 95 to Thomas-Jensen Aff. ¶¶ 23, 37-40, 55; Ex. 20 to Thomas-Jensen Aff. ¶¶ 6, 22 (as of Feb. 4); see also Ex. 108 to Thomas-Jensen Aff. ¶¶ 33, 35; Ex. 85 to Thomas-Jensen Aff., Ex. J).
• The Solar for All program, administered by the Environmental Protection Agency (“EPA”) and funded by the IRA’s Greenhouse Gas Reduction Fund, awarded $7 billion to 60 grantees to install rooftop and community solar energy projects in low-income and disadvantaged communities. These awards—all with final grant agreements in place— support the construction of cheap, resilient power in underserved neighborhoods, and provide particular protection to communities in which wildfire risk regularly causes utilities to de-energize transmission lines. As of February 5, numerous Plaintiff States were unable to access their Solar For All grant accounts in ASAP. (Ex. 108 to Thomas-Jensen Aff. ¶¶ 19–21 (Rhode Island); Ex. 44 to Thomas-Jensen Aff. ¶ 14 (Connecticut); Ex. 52 to Thomas-Jensen Aff. ¶ 12 (Hawai‘i); Ex. 73 to Thomas-Jensen Aff. ¶ 8 (Michigan); Ex. 71 to Thomas-Jensen Aff. ¶¶ 2, 7 (Maine); Ex. 85 to Thomas-Jensen Aff. ¶¶ 5, 10 (New Jersey); Ex. 95 to Thomas-Jensen Aff. ¶¶ 6, 55 (New York)). As of the time of filing, it appears that access in ASAP has at least begun to be restored in many of the Plaintiff States.
Other funds. Defendants have failed to follow the Court’s order with respect to other funds, too. On February 3, the National Institutes of Health abruptly cancelled an advisory committee review meeting with Brown University’s School of Public Health for a $71 million grant on dementia care research, saying “all federal advisory committee meetings had been cancelled.”2 Ex. February 5, still unable to access federal funds from the Department of Education. Ex. 111 to Thomas-Jensen Aff. ¶ 5; Ex. 76 to Thomas-Jensen Aff. ¶ 12. On February 5 and 6, the Centers for Disease Control and Prevention and the Health Resources and Services Administration renewed stop work orders to a University of Washington program doing global HIV prevention work. Decl. of Maya Beal (Feb. 7, 2025) ¶¶ 4, 10–11, 14–15, attached as Exhibit A. As Plaintiff States’ preliminary injunction motion details, since the entry of the Court’s Order, their agencies have received inconsistent guidance, cancelled and un-cancelled meetings, and inexplicably patchwork restorations of some grants but not others. Plaintiff’s Motion for Preliminary Injunction 18, 20, 21, 24, 32.
3. Attempts to Remedy
Plaintiff States attempted to remedy these issues on Wednesday, February 5, but were not successful. See Exhibits B and C. As part of that conferral process, Defendants have identified two grounds to excuse noncompliance.
First, in correspondence to Plaintiff State Oregon, Defendants explained that, in their view, certain IRA/IIJA funds lie outside the Order’s scope. Specifically, Defendants explained that such funding “was paused pursuant to OMB Memorandum M-25-11, which is not challenged in New York v. Trump and preceded issuance of the challenged OMB Memorandum M-25-13.” Exhibit B at 1.
As background, OMB Memorandum M-25-11 (“OMB Unleashing Guidance”), which predated the OMB Directive, instructed agencies that the “directive in section 7 of the Executive Order entitled Unleashing American Energy requires agencies to immediately pause disbursement of funds appropriated under the Inflation Reduction Act of 2022 (Public Law 117-169) [(IRA)] or the Infrastructure Investment and Jobs Act (Public Law 117-58) [(IIJA)],” but that pause applied only to “funds supporting the Green New Deal”—a term the OMB Unleashing Guidance defines as “supporting programs, projects, or activities that may be implicated by the policy established in Section 2 of the order.” Ex. 13 to Thomas-Jensen Aff. The Guidance provides no further explanation of how federal agencies are to make that determination.
Defendants thus appear to now take the position that the “freeze” set out in the Unleashing Guidance is distinct from the “freeze” set out days later in the OMB Directive, and that they remain free to freeze funds pursuant to the Unleashing Guidance. That position would appear to allow Defendants to continue to freeze any funds under either the IIJA or IRA that the federal grantor agency might characterize as “supporting the Green New Deal.”3
Second, Defendants have taken the position that, as a categorical matter, “the mere fact of a pause in funding does not inherently violate the Court’s Order,” and that the payment delays and blockages the Plaintiff States have endured for the past week despite the Order are excusable because there “are operational and administrative reasons for payments taking longer than normal.” As discussed below, certain federal funding streams have resumed, and others have not; consequently, key programs are at risk in the Plaintiff States because of Defendants’ failure to timely comply with this Court’s Order.
LEGAL STANDARD
Courts may issue further orders to obtain “compliance with a court order.” United States v. Saccoccia, 433 F.3d 19, 27 (1st Cir. 2005) (citing McComb v. Jacksonville Paper Co., 336 U.S. 187, 191 (1949)). In the First Circuit, to remedy violations of court orders, there are four factors to satisfy: (1) notice of the court order; (2) clarity and unambiguity of the order; (3) ability to comply; and (4) violation of the order. Letourneau v. Aul, No. CV 14-421JJM, 2024 WL 1364340, at *2 (D.R.I. Apr. 1, 2024) (citing Hawkins v. Dep’t of Health & Hum. Servs., 665 F.3d 25, 31 (1st Cir. 2012)).
“[T]he ‘clear and unambiguous’ standard applies to the language of the relevant court order, not to its effectiveness.” Cashman Dredging & Marine Contracting Co., LLC v. Belesimo, No. CV 21-11398-DJC, 2022 WL 3227535, at *4 (D. Mass. May 17, 2022) (quoting Goya Foods, Inc. v. Wallack Mgmt. Co., 290 F.3d 63, 76 (1st Cir. 2002)). When evaluating whether a court order is “clear and unambiguous,” the question is “not whether the order is clearly worded as a general matter.” Saccoccia, 433 F.3d at 28. Instead, the “clear and unambiguous” prong “requires that the words of the court’s order have clearly and unambiguously forbidden the precise conduct” giving rise to the need for enforcement. Id. (emphasis omitted) (citing Perez v. Danbury Hosp., 347 F.3d 419, 424 (2d Cir. 2003)).
ARGUMENT
I. The Court Should Order Defendants to Immediately Restore Frozen Funding Pursuant to the Court’s Temporary Restraining Order.
Clear and convincing evidence demonstrates that all four elements for further enforcement of the Order are met. Defendants had notice of the Order, the Order was clear and unambiguous, Defendants had the ability to comply with the Order, and Defendants have violated and continue to violate the Order. See Letourneau v. Aul, No. CV 14-421JJM, 2024 WL 1364340, at *2 (D.R.I. Apr. 1, 2024) (citing Hawkins v. Dep’t of Health & Hum. Servs., 665 F.3d 25, 31 (1st Cir. 2012)). There can be no dispute as to the first, third, and fourth elements. First, Defendants had notice of the Order, as they appeared at the hearing on the motion for a temporary restraining order, received the subsequent Order, filed the required Notice of the Order they intended to distribute to “all Defendants and agencies and their employees, contractors, and grantees,” Order 12, in fact distributed the Order, and have communicated with Plaintiffs about the Order.
Second, and as explained further below, the language applicable to Defendants’ assertions is plain and unambiguous and compels the result opposite from Defendants’ assertion. That is, the plain language of the Order sweeps in all incorporated articulations of the Federal Funding Freeze that are patent in the OMB Directive and the Order requires compliance without exception for administrative or operational difficulties, especially for any that extend a multiple of the length of time it took to implement the Federal Funding Freeze in the first instance.
Third, Defendants had the ability to comply with the Order. Simply put, because Defendants were able to cut off funding streams, they are equally able to turn those streams back on. Plaintiff States of course appreciate the need to allow Defendants a short period of time to operationalize the Order, but that time has long since passed. Defendants managed to implement widespread and disruptive funding freezes immediately after the OMB Directive was distributed, yet they have somehow now required a week or more to restore only some of the withheld funding. As described in Plaintiff States’ Motion for Preliminary Injunction 24–34, many of the programs for which funds were still frozen days after entry of the Order conspicuously mirror the President’s policy attacks on funding for environmental projects, foreign aid, university research, and services for low-income families. Defendants’ partial compliance demonstrates that they have the ability to fully comply, and the Order does not allow for selective compliance.
Fourth, Defendants have violated the Order. The evidence is overwhelming, as described supra Section B.2 and in the Motion for Preliminary Injunction 24–34, that Plaintiff States continue to experience widespread disruption in funds without notice or other procedural requirements of the relevant award, agreement, or other instrument. Defendants appear to contend that their conduct is permissible under the Order. Supra Section B.3. But Defendants are wrong. Under the plain and unambiguous text of the Order, which bars Defendants from “implementing, or otherwise giving effect to the OMB Directive under any other name or title or through any other Defendants,” Defendants’ conduct violates the Order. Order 12.
A. The Order Plainly Encompasses Categorical Funding Freezes Tied to Executive Orders (Including the Unleashing American Energy Executive Order)
Defendants apparently take the position that they can implement at least one of the funding freezes called for by the “series of Executive Orders” issued by the President “during the initial days of his Administration,” including “Unleashing American Energy (Jan. 20, 2025),” Ex. 9 to Thomas-Jensen Aff.. But the plain text of the Order does not allow for such an interpretation; “the words of the court’s order have clearly and unambiguously forbidden th[is] precise conduct.” United States v. Saccoccia, 433 F.3d 19, 28 (1st Cir. 2005) (emphasis omitted) (citing Perez v. Danbury Hosp., 347 F.3d 419, 424 (2d Cir. 2003)).
The Order requires Defendants to cease “implementing, or otherwise giving effect to the OMB Directive under any other name or title or through any other Defendants (or agency supervised, administered, or controlled by any Defendant).” Order 12 (emphasis added). The text of the Court’s Order must be read in conjunction with the substance of the OMB Directive, which required agencies to “implement” the Executive Orders issued by the President during the initial days of his administration by “temporarily paus[ing] all activities related to obligation or disbursement of all Federal financial assistance, and other relevant agency activities that may be implicated by the executive orders, including, but not limited to, financial assistance for foreign aid, nongovernmental organizations, DEI, woke gender ideology, and the green new deal.” OMB Directive, Compl. Ex. A. Any categorical pause of obligations or disbursements to implement the Executive Orders is exactly “implementing, or otherwise giving effect to the OMB Directive.” Order 12.
The OMB Directive acknowledges that it is the implementation of prior action. In the Unleashing American Energy Executive Order, the President announced a categorical, immediate, and indefinite pause on federal funds under the IRA and IIJA. Ex. 1 to Thomas-Jensen Aff. at 8353 Specifically, Section 7(a) of the Unleashing American Energy Executive Order, entitled “Terminating the Green New Deal,” ordered all federal agencies to “immediately pause the disbursement of funds appropriated through the [IRA] or the [IIJA].” Id. at 8357. The next day, OMB issued a memorandum clarifying that Section 7(a) of the Unleashing American Energy Executive Order only paused funding that the agencies identified as “Green New Deal” funding, i.e., “funds supporting programs, projects, or activities that may be implicated” by a set of Executive Branch priorities on energy and environmental regulation announced in Section 2 of that Executive Order. Ex. 13 to Thomas-Jensen Aff.. The OMB Directive used equivalent language, express referencing the Unleashing American Energy Executive Order and announcing a categorical pause on disbursing “financial assistance for ... the green new deal.” Compl. Ex. A.
Defendants’ apparent argument that they are permitted to continue to freeze federal funds by reference to the Unleashing Guidance, as long as they do not formally do so pursuant to the OMB Directive, is unavailing. That an earlier directive also directed a categorical funding freeze does not alter or amend the text of this Court’s Order, which restrains Defendants from categorically freezing duly appropriated and obligated funds. After that Order, the OMB Directive may not be given effect, “under any other name or title.” Order 12. That “title” includes the OMB Unleashing Guidance. Indeed, Defendants’ own prior statements reflect that they previously understood the Court’s Order to have that effect: The Notice that Defendants circulated to federal employees and filed with this Court instructed employees not to “pause, freeze, impede, block, cancel, or terminate any awards or obligations on the basis of the OMB Memo, or on the basis of the President’s recently issued Executive Orders.” Notice of Ct. Order 1, ECF No. 51-1 (emphasis added). Neither that Notice nor the document that accompanied it to this Court identified a carveout for other memoranda or guidance documents that implemented functionally the same policy and with functionally the same effect. Indeed, Defendants’ prior, broader understanding of the Court’s Order is, as discussed supra Section B.1, the only plausible one, given that the Court specifically enjoined Defendants from carrying out the same policy “under any other name or title.”
Defendants’ multiple actions to pause IRA/IIJA funds implement the OMB Directive, even if those actions also were also consistent with the OMB Unleashing Guidance. For example, in Rhode Island, the first denial of the Solar for All grant fund drawdown request occurred on January 27, 2025, the same day OMB 25-13 was published. Ex. 108 to Thomas-Jensen Aff. at 14. And the account in the grants administration system was entirely suspended January 28, 2025, at 5:44pm. Id. at 17. Even if the initial draw was rejected as a result of the OMB Unleashing Guidance (and it is not clear that it was), the account suspension was clearly undertaken pursuant to the OMB Directive, going into effect right on time to meet the deadline articulated there. That account suspension, or the act taken pursuant to the OMB Directive, persisted as of February 5. Ex. 108 to Thomas-Jensen Aff. ¶ 19. No explanation that the grant was out of compliance or authority for the suspension of the account was given. Similarly, EPA’s suspension of a Southern California air district’s $500 million award under the Climate Pollution Reduction Grant program went into effect on January 28th precisely—that is, the grant account was available for disbursement on the morning of the 28th, but it disappeared the same afternoon—the day after the OMB Directive was published, but an entire week after OMB’s Unleashing Guidance. Ex. 42 to Thomas-Jensen Aff. ¶¶ 18–19 & Exs. B, C.
In addition, the President continued to order new extensions of the Federal Funding Freeze simultaneous with the OMB Directive taking effect. These Executive Orders are also covered by the Order. In an Executive Order issued January 28, the President ordered federal agencies “that provide[] research or education grants to medical institutions” to “take appropriate steps to ensure” (or, in other words, cut off vital funding) that those institutions immediately discontinue ongoing gender affirming care to existing minor patients and cease to serve minor patients. Ex. 8 to Thomas-Jensen Aff. § 4. That edict issued without regard to the harm to minor patients that would be inflicted by such a cessation or delay of care, in violation of settled law. This continued effort to, in concert with OMB, pause vital funding first without establishing any basis in law is similarly conduct prohibited by the Order.
As these facts demonstrate, Defendants now seek to dress up their actions taken as a result of the OMB Directive and the blanket command contained therein in a new guise. But doing that is what the Court has prohibited: Defendants may not “implement or give effect to” the commands of “the OMB Directive” even if “under any other name or title.” Ascribing action to an Executive Order or a prior Guidance when the action is squarely within scope of OMB 25-13 is giving effect to the OMB Directive under a different name.
B. The Plain Text of the Order Made No Provision for Day After Day of Administrative Pauses and Delays
The Defendants have responded to Plaintiff States’ alerts that some essential federal financial assistance is still inexplicably paused with empty assurances. When Plaintiff States raised examples of the continued freeze of federal financial assistance in the face of the Court’s order, counsel for Defendants suggested “operational and administrative reasons for payments taking longer than normal” as an explanation for days-long delays. Ex. C, 1. “Operational and administrative reasons” is a phrase so vague as to not be helpful at all in understanding whether the Defendants understand and intend to comply with the plain text of this Court’s Order. This is an essential quandary, because from the Plaintiff States’ perspective, the only evidence available is evidence of nonpayment. Defendants were instructed not to leave Plaintiff States in the dark, and in those limited exceptions where some sort of pause or freeze could be supported by applicable legal authority, Defendants must give the appropriate notice and procedural safeguards meant to prevent the disruption here. Order 12.
Without explanation or substantiation, “operational and administrative reasons” for lengthy delays in restoring funding is incredible, particularly given the speed and efficiency with which hundreds of funding streams were frozen in the immediate wake of the OMB Directive. When OMB issued the Directive in the evening on January 27, 2025, it required the temporary pause to “become effective on January 28, 2025, at 5:00 PM.” Compl. Ex. A. Contemporaneous reporting and Plaintiffs’ evidence demonstrate that funding shutoffs began almost immediately after the OMB Directive issued. It is inexplicable why the federal government, which apparently determined it feasible to pause almost all federal funding within 24 hours, has not universally restored access to funds after nearly a week. As explained in the Plaintiff States’ Motion for Preliminary Injunction 34, even a momentary delay in the intricate accounting dance that underpins our cooperative federal system can result in failures to make payroll and the potential shuttering of programs and nonprofit entities that provide vital health and human services to the residents of the Plaintiff States.
Defendants’ assertion that “the mere fact of a pause in funding does not inherently violate the Court’s Order,” Ex. C, also cannot be squared with the plain text of the Order, which states that Defendants “shall not pause” federal financial assistance to the Plaintiff States. Order 11. Of course, as set forth in the Order, there could be an instance where a specific applicable statute, regulation or term of the grant allowed a pause—but in that case, the Defendants must “comply with all notice and procedural requirements in the award, agreement, or other instrument relating to decisions to stop, delay, or otherwise withhold federal financial assistance programs” before funding could be paused. Order 12. Across the Plaintiff States, there is no evidence that Defendants have made any attempt at this compliance as to the funding still paused.
CONCLUSION
For the reasons provided above, the Court should enforce the clear and unambiguous text of its temporary restraining order and order Defendants to immediately restore funds until the preliminary injunction motion can be heard and decided. Plaintiff States do not request any sanction at this time. The Court should further Order that Defendants immediately take every step necessary to effectuate the Order, including clearing any administrative, operational, or technical hurdles to implementation. In addition, the Court should Order compliance with the plain text of the existing Order not to pause any funds on the basis of pronouncements pausing funding incorporated into the OMB Directive, like Section 7(a) of the Unleashing Executive Order and the OMB Unleashing Guidance.
Respectfully submitted,
February 7, 2025
PETER F. NERONHA
Attorney General for the State of Rhode Island
By: /s/ Kathryn M. Sabatini
Kathryn M. Sabatini (RI Bar No. 8486)
Civil Division Chief
Special Assistant Attorney General
Sarah W. Rice (RI Bar No. 10465)
Deputy Chief, Public Protection Bureau
Assistant Attorney General
Leonard Giarrano IV (RI Bar No. 10731)
Special Assistant Attorney General
150 South Main Street
Providence, RI 02903
(401) 274-4400, Ext. 2054
[email protected]
[email protected]
[email protected]
LETITIA JAMES
Attorney General for the State of New York
By: /s/ Rabia Muqaddam
Rabia Muqaddam*
Special Counsel for Federal Initiatives
Michael J. Myers*
Senior Counsel
Molly Thomas-Jensen*
Special Counsel
Colleen Faherty*
Special Trial Counsel
Zoe Levine*
Special Counsel for Immigrant Justice
28 Liberty St.
New York, NY 10005
(929) 638-0447
[email protected]
[email protected]
[email protected]
[email protected]
[email protected]
ROB BONTA
Attorney General for the State of California
By: /s/ Laura L. Faer
Laura L. Faer*
Supervising Deputy Attorney General
Christine Chuang*
Supervising Deputy Attorneys General
Nicholas Green*
Carly Munson*
Kenneth Sugarman*
Christopher J. Kissel*
Lara Haddad*
Theodore McCombs*
Deputy Attorneys General
California Attorney General’s Office
1515 Clay St.
Oakland, CA 94612
(510) 879-3304
KWAME RAOUL
Attorney General for the State of Illinois
By: /s/ Alex Hemmer
Alex Hemmer*
Deputy Solicitor General
115 S. LaSalle St.
Chicago, Illinois 60603
(312) 814-5526
[email protected]
[email protected]
[email protected]
[email protected]
[email protected]
[email protected]
[email protected]
[email protected]
[email protected]
ANDREA JOY CAMPBELL
Attorney General for the Commonwealth of Massachusetts
By: /s/ Katherine B. Dirks
Katherine B. Dirks*
Deputy Chief, Government Bureau
Turner Smith*
Deputy Chief, Energy and Environment Bureau
Anna Lumelsky*
Deputy State Solicitor
1 Ashburton Pl.
Boston, MA 02108
(617.963.2277)
[email protected]
[email protected]
[email protected]
MATTHEW J. PLATKIN
Attorney General for the State of New Jersey
By: /s/ Angela Cai
Angela Cai*
Executive Assistant Attorney General
Jeremy M. Feigenbaum*
Solicitor General
Shankar Duraiswamy*
Deputy Solicitor General
25 Market St.
Trenton, NJ 08625
(609) 376-3377
[email protected]
[email protected]
[email protected]
KRISTEN K. MAYES
Attorney General for the State of Arizona
By: /s/ Joshua D. Bendor
Joshua D. Bendor*
Solicitor General
Nathan Arrowsmith*
2005 North Central Avenue
Phoenix, Arizona 85004
(602) 542-3333
[email protected]
[email protected]
WILLIAM TONG
Attorney General for the State of Connecticut
By: /s/ Michael K. Skold
Michael K. Skold*
Solicitor General
Jill Lacedonia
165 Capitol Ave
Hartford, CT 06106
(860) 808 5020
[email protected]
[email protected]
PHILIP J. WEISER
Attorney General for the State of Colorado
By: /s/ Shannon Stevenson
Shannon Stevenson*
Solicitor General
Ralph L. Carr Judicial Center
1300 Broadway, 10th Floor
Denver, Colorado 80203
(720) 508-6000
[email protected]
KATHLEEN JENNINGS
Attorney General of Delaware
By: /s/ Vanessa L. Kassab
Vanessa L. Kassab*
Deputy Attorney General
Delaware Department of Justice
820 N. French Street
Wilmington, DE 19801
(302) 577-8413
[email protected]
BRIAN L. SCHWALB
Attorney General for the District of Columbia
By: /s/ Andrew Mendrala
Andrew Mendrala*
Assistant Attorney General
Public Advocacy Division
Office of the Attorney General for the District of Columbia
400 Sixth Street, NW
Washington, DC 20001
(202) 724-9726
[email protected]
ANNE E. LOPEZ
Attorney General for the State of Hawaiʻi
By: /s/ Kalikoʻonālani D. Fernandes
David D. Day*
Special Assistant to the Attorney General
Kalikoʻonālani D. Fernandes*
Solicitor General
425 Queen Street
Honolulu, HI 96813
(808) 586-1360
[email protected]
[email protected]
AARON M. FREY
Attorney General for the State of Maine
By: /s/ Jason Anton
Jason Anton*
Assistant Attorney General
Maine Office of the Attorney General
6 State House Station
Augusta, ME 04333
207-626-8800
[email protected]
ANTHONY G. BROWN
Attorney General for the State of Maryland
By: /s/ Adam D. Kirschner
Adam D. Kirschner*
Senior Assistant Attorney General
Office of the Attorney General
200 Saint Paul Place, 20th Floor
Baltimore, Maryland 21202
410-576-6424
[email protected]
DANA NESSEL
Attorney General of Michigan
By: /s/ Linus Banghart-Linn
Linus Banghart-Linn*
Chief Legal Counsel
Neil Giovanatti*
Assistant Attorney General
Michigan Department of Attorney General
525 W. Ottawa St.
Lansing, MI 48933
(517) 281-6677
[email protected]
[email protected]
KEITH ELLISON
Attorney General for the State of Minnesota
By: /s/ Liz Kramer
Liz Kramer*
Solicitor General
445 Minnesota Street, Suite 1400
St. Paul, Minnesota, 55101
(651) 757-1010
[email protected]
AARON D. FORD
Attorney General of Nevada
/s/ Heidi Parry Stern
Heidi Parry Stern*
Solicitor General
Office of the Nevada Attorney General
1 State of Nevada Way, Ste. 100
Las Vegas, NV 89119
(702) 486-5708
[email protected]
RAÚL TORREZ
Attorney General for the State of New Mexico
By: /s/ Anjana Samant
Anjana Samant*
Deputy Counsel
NM Department of Justice
408 Galisteo Street
Santa Fe, New Mexico 87501
505-270-4332
[email protected]
JEFF JACKSON
Attorney General for the State of North Carolina
By: /s/ Daniel P. Mosteller
Daniel P. Mosteller*
Associate Deputy Attorney General
PO Box 629
Raleigh, NC 27602
919-716-6026
[email protected]
DAN RAYFIELD
Attorney General for the State of Oregon
By: /s/ Christina Beatty-Walters
Christina Beatty-Walters*
Senior Assistant Attorney General
100 SW Market Street
Portland, OR 97201
(971) 673-1880
[email protected]
CHARITY R. CLARK
Attorney General for the State of Vermont
By: /s/ Jonathan T. Rose
Jonathan T. Rose*
Solicitor General
109 State Street
Montpelier, VT 05609
(802) 793-1646
[email protected]
NICHOLAS W. BROWN
Attorney General for the State of Washington
By: /s Andrew Hughes
Andrew Hughes*
Assistant Attorney General
Leah Brown*
Assistant Attorney General
Office of the Washington State Attorney General
800 Fifth Avenue, Suite 2000
Seattle, WA 98104
(206) 464-7744
[email protected]
[email protected]
JOSHUA L. KAUL
Attorney General for the State of Wisconsin
By: /s Aaron J. Bibb
Aaron J. Bibb*
Assistant Attorney General
Wisconsin Department of Justice
17 West Main Street
Post Office Box 7857
Madison, Wisconsin 53707-7857
(608) 266-0810
[email protected]
*Admitted Pro Hac Vice
CERTIFICATE OF SERVICE
I, the undersigned, hereby certify that I filed the within via the ECF filing system and that a copy is available for viewing and downloading. I have also caused a copy to be sent via the ECF System to counsel of record on this 7th day of February, 2025.
/s/ Sarah W. Rice
*************************************
Exhibit A
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
STATE OF NEW YORK, et al.,
Plaintiffs,
v.
DONALD TRUMP, et al.,
Defendants.
Civil Action No. 1:25-cv-00039-JJM
DECLARATION OF MAYA BEAL
Declaration of Maya Beal
I, Maya Beal, declare as follows:
1. I am over the age of 18, competent to testify as to the matters herein, and make this declaration based on my personal knowledge.
2. I am the Director of Finance and Operations for the International Training and Education Center for Health (I-TECH) at the University of Washington. The Director of Finance and Operations provides direction and leadership for I-TECH’s worldwide financial reporting and accountability, operations and award management. This position ensures all I-TECH systems follow standards established by the State Office of Financial Management, the Financial Accounting Standards Board, the Office of Management and Budget, and various funding sources (federal and private).
3. I-TECH is a center in the University of Washington’s Department of Global Health within the School of Public Health and School of Medicine. I-TECH has activities in more than 25 countries and is committed to building long-term capacity through health systems strengthening; human resources for health; and targeted, data-driven interventions and research that are responsive to local needs. Our unique approach to sustainability and capacity building, through training and technical assistance, creates a strong foundation for contextually appropriate health programs. Our programs effectively tackle emerging health threats and address national health priorities to achieve high quality, compassionate, and equitable health care. I-TECH partners with country governments, universities, non-governmental organizations, civil society partners, and funders to design and implement locally relevant health programs within existing local systems and processes. I-TECH has led or supported programs in more than 30 countries in Africa, South America, Asia, Eastern Europe, and the Caribbean.
4. Since its founding in 2002, I-TECH’s accomplishments are numerous and vital to the communities it serves. Between 2017 and 2023, I-TECH supported over 1,000 health care facilities and 120 laboratories. During this period, I-TECH supported 250,000 people being initiated on ART, more than 660,000 men circumcised, 5.3 million people tested for HIV, and more than 340,000 women tested for cervical cancer.
5. Moreover, I-TECH has created more than 400 training programs and products that have been adopted by ministries of health in Africa, Asia, and the Caribbean Region. I-TECH has trained more than 400,000 health care workers. I-TECH has also led national pre-service curriculum reform in five countries and led faculty development efforts to strengthen delivery of competency-based courses.
6. As a long-time U.S. President’s Emergency Plan for AIDS Relief (PEPFAR) implementing partner, I-TECH has administered projects sponsored by the U.S. Centers for Disease Control and Prevention (CDC), the U.S. Health Resources and Services Administration (HRSA), the U.S. Department of Defense, the National Institutes of Health (NIH), and U.S. Agency for International Development (USAID). The majority of I-TECH’s grants originate from PEPFAR and are awarded and administered by HRSA and CDC.
7. On September 9, 2024, HRSA awarded I-TECH a grant (FAIN # U9106801) that obligated $8,129,869 for “Capacity Building for Sustainable HIV Services.” The objective of this grant was to “[i]mprove health outcomes for PLHIV along the HIV care continuum by building sustainable health systems, including a global workforce with the right skills, mix and distribution to respond to HIV and other population health priorities.” A true and correct copy of this September 9, 2024, Notice of Award, with a budget period between September 30, 2024, and September 29, 2025, is attached hereto as Exhibit A. As of January 22, 2025, UW has spent approximately $2,442,036 of the $8,129,869 obligated under this grant.
8. On September 10, 2024, HRSA awarded I-TECH a grant (FAIN # U1N45176) that obligated $380,862 for “Quality Improvement Solutions for Sustained Epidemic Control Project.” The objective of this grant was to further “[q]uality [i]mprovement for improved HIV services” in the Democratic Republic of Congo, including “[d]elivery of training and mentoring services by quality improvement coaches” and “[n]ational level support to DRC Ministry of Health for an improved HIV services framework.” A true and correct copy of this September 10, 2024, Notice of Award, with a budget period between September 30, 2024, and September 29, 2025, is attached hereto as Exhibit B. As of January 22, 2025, UW has spent approximately $200,207 of the $380,862 obligated under this grant.
9. I-TECH also has received a significant number of grants from the CDC. The CDC has already awarded fourteen (14) PEPFAR grants to I-TECH as a prime recipient and subrecipient, running to 2026-2028, obligating approximately $12,733,706 in federal funds for various projects, including strengthening health services in clinics and other critical public health infrastructure in Namibia, Malawi, and Mozambique. As of January 22, 2025, I-TECH has spent at least $3,942,071 pursuant to these CDC grants.
10. On January 27, 2025, I-TECH received from HRSA two stop-work orders for both its “Capacity Building” and “Quality Improvement” grants. These stop-work orders, which both took the form of subsequent “Notice[s] of Award,” contained identical boilerplate language, stating that because of the “President’s Executive Order on Reevaluating and Realigning United States Foreign Aid,” UW and I-TECH must “immediately cease all activities on this award, which includes activities conducted under subawards and contracts.” They directed that “[a]ctivities are suspended until further notice” and “further activities” would be subject to “additional guidance and the future availability of funds.” Additionally, they directed that “[n]o additional costs may be incurred, however any costs incurred prior to January 24, 2025, may be allowable for payment.” Finally, the stop-work orders did not give any additional reason for their cessation of payment obligations, but did make clear that “[t]his action is not subject to appeal.” True and correct copies of these January 27, 2025, stop-work orders are attached hereto as Exhibits C and D.
11. On January 29, 2025, UW and I-TECH also received additional stop-work orders for its four prime awards funded by CDC grants under PEPFAR: (1) the $965,932 grant for “Advancing Sustainable Implementation of Comprehensive HIV/TB Services for Epidemic Control in the Republic of Mozambique” (FAIN # NU2GGH002374); (2) the $2,250,000 grant for “Human Resources for Health (HRH) to Achieve and Sustain HIV/TB Epidemic Control in Malawi” FAIN # NU2GGH002298); (3) the $2,899,149 grant for “HIV Surveillance for Epidemic Control in Malawi” (FAIN # NU2GGH002423); and (4) the $3,960,457 grant for “Namibia Mechanism for Public Health Assistance, Capacity, and Technical Support” (FAIN # NU2GGH002242). Each stop work order contained the same boilerplate language as the HRSA stop-work orders explaining that “in accordance with the President’s Executive Order on Reevaluating and Realigning United States Foreign Aid,” UW and I-TECH must “immediately cease all activities on this award, which includes activities under subawards and contracts. Activities are suspended until further notice. Further activities will be subject to additional guidance and the future availability of funds.” The CDC stop-work orders further repeated the same directive from the HRSA stop-work orders that “[t]he grant funds on this award are restricted until further notice. No additional costs may be incurred. Any costs incurred prior to January 24, 2025, may be allowable for payment.” True and correct copies of these four January 29, 2025, CDC stop-work orders are attached hereto as Exhibits E, F, G, and H.
12. On January 31, 2025, the Rhode Island District Court issued a temporary restraining order (TRO) prohibiting the federal financial assistance freeze against federal agencies, including CDC and HRSA.
13. On February 1, 2025, the CDC loaded a Notice of Court Order to our grant files in GrantSolutions. A true and correct copy of this Notice is attached hereto as Exhibit I. This Notice promised “federal agencies could not pause, freeze, impede, block, cancel, or terminate any awards or obligations on the basis of the OMB Memo, or on the basis of the President’s recently issued Executive Orders.” Based on this Notice, I-TECH resumed its award activities.
14. On February 5, 2025, all I-TECH CDC PEPFAR prime grantees received Notices of Award, continuing to partially implement the President’s Executive Order, Reevaluating and Realigning United States Foreign Aid. A true and correct copy of this notice is attached hereto as Exhibit J. It provided a “Limited Waiver to the Pause of U.S. Foreign Assistance for Life-Saving HIV Service Provision.” This limited waiver does not cover “non-life saving assistance” including prevention of HIV transmission, outside of mother-to-child. For activities that fall under the waiver, CDC requires the University of Washington to use the manual payment method. This method adds a burden not contemplated by the terms and conditions of the cooperative agreements entered by I-TECH. This waiver, although facially is meant to cover life-saving services, does not necessarily effectuate its intent. For example, for one CDC program, I-TECH will need to lay off and pay severance for the employees that provide non-covered services. These closeout costs will likely exceed the funds that have been obligated, thus negating I-TECH’s ability to continue to both provide life-saving care that falls under the waiver and adhere with labor regulations and the close out processes required under federal funding regulations.
15. On February 6, 2025, all HRSA I-TECH grantees received an email, continuing to partially implement the President’s Executive Order, Reevaluating and Realigning United States Foreign Aid, and notifying grantees of a “Limited Waiver to the Pause of U.S. Foreign Assistance for Life-Saving HIV Service Provision.” A true and correct copy of this email is attached hereto as Exhibit K. This limited waiver does not cover “non-life saving assistance” including prevention of HIV transmission, outside of mother-to-child. As a result, I-TECH will need to shut down one HRSA funded program entirely.
16. I-TECH staff and faculty were shocked and surprised to receive these stop-work orders, which appeared to conflict with the TRO.
I declare under penalty of perjury under the laws of the State of Washington and the United States of America that the foregoing is true and correct.
Executed this 7th day of February 2025, at Seattle, Washington.
MAYA BEAL
Director of Finance and Operations
I-TECH
SEE PDF FOR OTHER EXHIBITS
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
STATE OF NEW YORK, et al.,
Plaintiffs,
v.
DONALD TRUMP, IN HIS OFFICIAL CAPACITY AS PRESIDENT OF THE UNITED STATES, et al.,
Defendants.
C.A. No. 1:25-cv-00039
REQUEST FOR EMERGENCY RELIEF TO ENFORCE TEMPORARY RESTRAINING ORDER OF JANUARY 31, 2025, UPON EVIDENCE OF VIOLATION
PLAINTIFF STATES’ MOTION FOR ENFORCEMENT OF THE TEMPORARY RESTRAINING ORDER
On January 31, 2025, this Court issued a Temporary Restraining Order enjoining Defendants, including the President of the United States, Donald J. Trump, the United States Office of Management and Budget, and the United States Treasury Department, from “reissuing, adopting, implementing, or otherwise giving effect to the OMB Directive under any other name or title or through any other Defendants (or agency supervised, administered, or controlled by any Defendant)” by any means, including through oblique means “such as the continued implementation identified by the White House Press Secretary’s statement of January 29, 2025.” TRO 12, ECF No. 50 (“Order”). Yet Plaintiff States and entities within the Plaintiff States continue to be denied access to federal funds. These denials continue to cause immediate irreparable harm as demonstrated in the temporary restraining order proceedings and will be further demonstrated in support of the Plaintiff States’ request for preliminary injunction, filed simultaneously with this motion. Jobs, lives, and the social fabric of life in the Plaintiff States are at risk from the disruptions and uncertainty that have continued now a full week after entry of the Order. As this Court noted, executive action that is “in name-only and may have” proceeded “simply to defeat the jurisdiction of the courts” weighs in favor of temporary but decisive action. Order, 10. Unfortunately, such action is once again necessary on an urgent basis.
The sands have only continued to shift since January 31. As explained below, there has been an ever-changing kaleidoscope of federal financial assistance that has been suspended, deleted, in transit, under review, and more since entry of the Order. These conditions persist today. In particular, Defendants have—for the first time this week—taken the position that certain federal funds, including federal financial assistance under the Inflation Reduction Act (“IRA”) and the Infrastructure Improvement and Jobs Act (“IIJA”), is outside the scope of the Court’s Order, a position contradicted by the plain text of the Order and the notice Defendants previously filed with the Court explaining their view of the scope of the Order. See Order 11-12.
And, while it is imaginable that a certain amount of machinery would need to be re-tooled in order to undo the breadth of the Federal Funding Freeze, there is no world in which these scattershot outages, which as of this writing impact billions of dollars in federal funding across the Plaintiff States, can constitute compliance with this Court’s Order. Defendants contemplated an all-of-government “pause” on federal funding could be implemented in the less than 24 hours between when the OMB Directive issued and when it took effect. Yet, as to a number of funding sources that provide critical services in Plaintiffs’ States, the situation has not changed at all nearly a week after the Court’s Order, which noted that “[t]he evidence in the record at this point shows that . . . the Executive’s decision to pause appropriated federal funds [for at least some federal programs] ‘remains in full force and effect.’” Order 10.
Defendants also seek resort to unspecified administrative and operational delays—but these are the delays the Defendants are enjoined from imposing. This Court should enforce the plain text of its temporary restraining order and order Defendants to immediately restore funds and desist from the federal funding pause until the preliminary injunction motion can be heard and decided, a process which is proceeding expeditiously in separate proceedings before this Court.
I. FACTUAL BACKGROUND
A. Court Order
This Court’s Order restrained three types of conduct. First, Defendants shall “not pause, freeze, impede, block, cancel, or terminate Defendants’ compliance with awards and obligations to provide federal financial assistance to the States, and Defendants shall not impede the States’ access to such awards and obligations, except on the basis of the applicable authorizing statutes, regulations, and terms.” Order 11. Second, the Defendants shall not accomplish any of the listed prohibited activities during “‘identif[ication] and review’ of federal financial assistance programs, as identified in the OMB Directive.” Order 12. Third, the Federal Funding Freeze is not to be reinstituted under any name—Defendants are “restrained and prohibited from reissuing, adopting, implementing, or otherwise giving effect to the OMB Directive under any other name or title or through any other Defendants (or agency supervised, administered, or controlled by any Defendant).” Id. Moreover, the Court required affirmative action of the Defendants—that is, if any grant needed to be stopped, delayed, or otherwise withheld in the regular order, Defendants are required to “comply with all notice and procedural requirements in the award, agreement, or other instrument” governing the federal financial assistance at issue. Id.
In addition, in recognition that the scope of the Federal Funding Freeze was vast, the Court ordered Defendants’ attorneys to “provide written notice of this Order to all Defendants and agencies and their employees, contractors, and grantees by Monday, February 3, 2025, at 9 a.m.” and file a copy with the Court at the same time. Id.
B. Defendants’ Subsequent Conduct
1. Notice of Court Order
Defendants filed the Notice of Court Order on Monday, February 3, 2025. In it, Defendants stated their understanding of the scope of the Court’s Order, telling all of their “employees, contractors, and grantees” that “Federal agencies cannot pause, freeze, impede, block, cancel, or terminate any awards or obligations on the basis of the OMB Memo, or on the basis of the President’s recently issued Executive Orders.” Notice of Ct. Order 1, ECF No. 51-1. Defendants accompanied their filing of the Notice with a brief cover memorandum to the Court, which elaborated on their views that:
• the Order did not restrain the “President or his advisors from communicating with federal agencies or the public about the President’s priorities regarding federal spending.”
• the Order did not enjoin “the President’s Executive Orders, which are plainly lawful and unchallenged in this case.”
• the Order did not “impos[e] compliance obligations on federal agencies that are not Defendants in this case.”
2. Noncompliance with Court Order
Despite the Court’s order, Defendants have failed to resume disbursing federal funds in multiple respects.
IRA/IIJA funds. First, Defendants have failed to fully resume disbursing federal funds appropriated by the IRA and IIJA. Plaintiff States’ agencies that receive IRA/IIJA-appropriated funds under final grant agreements have been regularly refreshing federal payment portals—in particular, the Automated Standard Application for Payments (“ASAP”)—to check whether their grants have been restored. For some IRA/IIJA grants, grant accounts have reappeared over the course of the week in ASAP, and federal grantor agencies have communicated to the States that grant accounts are or will shortly be un-suspended. For other IRA/IIJA grants, as of the evening of Wednesday, February 5, grant accounts continue to be missing in ASAP and unavailable for drawing down disbursements; other grant accounts are still flagged as suspended or held “per executive order” or “for agency review.” In these cases, federal grantor agencies have replied to state agency inquiries with receipt-acknowledging non-answers or not replied at all—and often meetings with agency grant offices remain cancelled. The following grants are illustrative, although not exhaustive—many states have had these and other important grants frozen or paused:
• The Climate Pollution Reduction Grant program, administered by EPA and funded by a $5 billion IRA appropriation, supports States, tribes, and local governments in planning and implementing greenhouse-gas reduction measures. For example, the regional air district covering Los Angeles, California received a $500 million award, subject to a final grant agreement, to clean up the highly polluting goods movement corridor between the Imperial Valley’s logistics hubs and warehouses to the Port of Los Angeles. (Ex. 42 to Thomas-Jensen Aff. ¶ 8.)1 As of February 5, this grant and other Climate Pollution Reduction Grants remained inaccessible in ASAP. (Ex. 42 to Thomas-Jensen Aff. ¶¶ 8, 25; Ex. 28 to Thomas-Jensen Aff. ¶¶ 8, 11, 18–19; Ex. 84 to Thomas-Jensen Aff. ¶¶ 10, 11, 15; Ex. 106 to Thomas-Jensen Aff. ¶¶ 41–44; Ex. 83 to Thomas-Jensen Aff. ¶¶ 2, 25; Ex. 56 to Thomas-Jensen Aff. ¶ 12; see also Ex. 20 to Thomas-Jensen Aff. ¶¶ 19, 23 (as of Feb. 4); Ex. 44 to Thomas-Jensen Aff. ¶¶ 35–36 (same); Ex. 49 to Thomas-Jensen Aff. ¶ 19 (same); Ex. 97 to Thomas-Jensen Aff. ¶¶ 4(B), 5, 14 (same); Ex. 61 to Thomas-Jensen Aff. ¶¶ 8, 10 (same)).
• For sixty years, EPA has administered a national air monitoring network and research program under Clean Air Act sections 103 to 105. The IRA appropriated $117.5 million to fund air monitoring grants under this program to increase States’ abilities to detect dangerous pollution like particulate matter (soot) and air toxics, including in disadvantaged communities. These pollutants create a particular public health emergency in areas recovering from wildfires. As of February 5, air monitoring grants remained inaccessible in ASAP. (Ex. 28 to Thomas-Jensen Aff. ¶¶ 7, 18-19; Ex. 97 to Thomas-Jensen Aff. ¶¶ 12, 15; Ex. 42 to Thomas-Jensen Aff. ¶¶ 12-13, 25; Ex. 84 to Thomas-Jensen Aff. ¶¶ 12-13, 15; Ex. 106 to Thomas-Jensen Aff. ¶¶ 58-71; Ex. 73 to Thomas-Jensen Aff. ¶ 8; see also Ex. 23 to Thomas-Jensen Aff. ¶ 12 (as of Feb. 4)).
• The IRA appropriates $4.5 billion to the Department of Energy for the Home Electrification and Appliances Rebates Program. The rebate program, administered by state energy offices under final federal grants, subsidizes low- and moderate-income households’ purchase and installation of electric heat pump water heaters, electric heat pump space heating and cooling systems, and other home electrification projects. Thousands of homeowners across Plaintiff States have signed up for Plaintiff States’ programs, received approvals, and even started installation in reliance on these rebates, and are stuck paying their contractors an extra $8,000 if state energy offices cannot draw down funds. As of February 5, that remained the case: the home rebate grants are held “for agency review” in ASAP. (Ex. 40 to Thomas-Jensen Aff. ¶¶ 8, 11, 37; Ex. 95 to Thomas-Jensen Aff. ¶¶ 23, 37-40, 55; Ex. 20 to Thomas-Jensen Aff. ¶¶ 6, 22 (as of Feb. 4); see also Ex. 108 to Thomas-Jensen Aff. ¶¶ 33, 35; Ex. 85 to Thomas-Jensen Aff., Ex. J).
• The Solar for All program, administered by the Environmental Protection Agency (“EPA”) and funded by the IRA’s Greenhouse Gas Reduction Fund, awarded $7 billion to 60 grantees to install rooftop and community solar energy projects in low-income and disadvantaged communities. These awards—all with final grant agreements in place— support the construction of cheap, resilient power in underserved neighborhoods, and provide particular protection to communities in which wildfire risk regularly causes utilities to de-energize transmission lines. As of February 5, numerous Plaintiff States were unable to access their Solar For All grant accounts in ASAP. (Ex. 108 to Thomas-Jensen Aff. ¶¶ 19–21 (Rhode Island); Ex. 44 to Thomas-Jensen Aff. ¶ 14 (Connecticut); Ex. 52 to Thomas-Jensen Aff. ¶ 12 (Hawai‘i); Ex. 73 to Thomas-Jensen Aff. ¶ 8 (Michigan); Ex. 71 to Thomas-Jensen Aff. ¶¶ 2, 7 (Maine); Ex. 85 to Thomas-Jensen Aff. ¶¶ 5, 10 (New Jersey); Ex. 95 to Thomas-Jensen Aff. ¶¶ 6, 55 (New York)). As of the time of filing, it appears that access in ASAP has at least begun to be restored in many of the Plaintiff States.
Other funds. Defendants have failed to follow the Court’s order with respect to other funds, too. On February 3, the National Institutes of Health abruptly cancelled an advisory committee review meeting with Brown University’s School of Public Health for a $71 million grant on dementia care research, saying “all federal advisory committee meetings had been cancelled.”2 Ex. February 5, still unable to access federal funds from the Department of Education. Ex. 111 to Thomas-Jensen Aff. ¶ 5; Ex. 76 to Thomas-Jensen Aff. ¶ 12. On February 5 and 6, the Centers for Disease Control and Prevention and the Health Resources and Services Administration renewed stop work orders to a University of Washington program doing global HIV prevention work. Decl. of Maya Beal (Feb. 7, 2025) ¶¶ 4, 10–11, 14–15, attached as Exhibit A. As Plaintiff States’ preliminary injunction motion details, since the entry of the Court’s Order, their agencies have received inconsistent guidance, cancelled and un-cancelled meetings, and inexplicably patchwork restorations of some grants but not others. Plaintiff’s Motion for Preliminary Injunction 18, 20, 21, 24, 32.
3. Attempts to Remedy
Plaintiff States attempted to remedy these issues on Wednesday, February 5, but were not successful. See Exhibits B and C. As part of that conferral process, Defendants have identified two grounds to excuse noncompliance.
First, in correspondence to Plaintiff State Oregon, Defendants explained that, in their view, certain IRA/IIJA funds lie outside the Order’s scope. Specifically, Defendants explained that such funding “was paused pursuant to OMB Memorandum M-25-11, which is not challenged in New York v. Trump and preceded issuance of the challenged OMB Memorandum M-25-13.” Exhibit B at 1.
As background, OMB Memorandum M-25-11 (“OMB Unleashing Guidance”), which predated the OMB Directive, instructed agencies that the “directive in section 7 of the Executive Order entitled Unleashing American Energy requires agencies to immediately pause disbursement of funds appropriated under the Inflation Reduction Act of 2022 (Public Law 117-169) [(IRA)] or the Infrastructure Investment and Jobs Act (Public Law 117-58) [(IIJA)],” but that pause applied only to “funds supporting the Green New Deal”—a term the OMB Unleashing Guidance defines as “supporting programs, projects, or activities that may be implicated by the policy established in Section 2 of the order.” Ex. 13 to Thomas-Jensen Aff. The Guidance provides no further explanation of how federal agencies are to make that determination.
Defendants thus appear to now take the position that the “freeze” set out in the Unleashing Guidance is distinct from the “freeze” set out days later in the OMB Directive, and that they remain free to freeze funds pursuant to the Unleashing Guidance. That position would appear to allow Defendants to continue to freeze any funds under either the IIJA or IRA that the federal grantor agency might characterize as “supporting the Green New Deal.”3
Second, Defendants have taken the position that, as a categorical matter, “the mere fact of a pause in funding does not inherently violate the Court’s Order,” and that the payment delays and blockages the Plaintiff States have endured for the past week despite the Order are excusable because there “are operational and administrative reasons for payments taking longer than normal.” As discussed below, certain federal funding streams have resumed, and others have not; consequently, key programs are at risk in the Plaintiff States because of Defendants’ failure to timely comply with this Court’s Order.
LEGAL STANDARD
Courts may issue further orders to obtain “compliance with a court order.” United States v. Saccoccia, 433 F.3d 19, 27 (1st Cir. 2005) (citing McComb v. Jacksonville Paper Co., 336 U.S. 187, 191 (1949)). In the First Circuit, to remedy violations of court orders, there are four factors to satisfy: (1) notice of the court order; (2) clarity and unambiguity of the order; (3) ability to comply; and (4) violation of the order. Letourneau v. Aul, No. CV 14-421JJM, 2024 WL 1364340, at *2 (D.R.I. Apr. 1, 2024) (citing Hawkins v. Dep’t of Health & Hum. Servs., 665 F.3d 25, 31 (1st Cir. 2012)).
“[T]he ‘clear and unambiguous’ standard applies to the language of the relevant court order, not to its effectiveness.” Cashman Dredging & Marine Contracting Co., LLC v. Belesimo, No. CV 21-11398-DJC, 2022 WL 3227535, at *4 (D. Mass. May 17, 2022) (quoting Goya Foods, Inc. v. Wallack Mgmt. Co., 290 F.3d 63, 76 (1st Cir. 2002)). When evaluating whether a court order is “clear and unambiguous,” the question is “not whether the order is clearly worded as a general matter.” Saccoccia, 433 F.3d at 28. Instead, the “clear and unambiguous” prong “requires that the words of the court’s order have clearly and unambiguously forbidden the precise conduct” giving rise to the need for enforcement. Id. (emphasis omitted) (citing Perez v. Danbury Hosp., 347 F.3d 419, 424 (2d Cir. 2003)).
ARGUMENT
I. The Court Should Order Defendants to Immediately Restore Frozen Funding Pursuant to the Court’s Temporary Restraining Order.
Clear and convincing evidence demonstrates that all four elements for further enforcement of the Order are met. Defendants had notice of the Order, the Order was clear and unambiguous, Defendants had the ability to comply with the Order, and Defendants have violated and continue to violate the Order. See Letourneau v. Aul, No. CV 14-421JJM, 2024 WL 1364340, at *2 (D.R.I. Apr. 1, 2024) (citing Hawkins v. Dep’t of Health & Hum. Servs., 665 F.3d 25, 31 (1st Cir. 2012)). There can be no dispute as to the first, third, and fourth elements. First, Defendants had notice of the Order, as they appeared at the hearing on the motion for a temporary restraining order, received the subsequent Order, filed the required Notice of the Order they intended to distribute to “all Defendants and agencies and their employees, contractors, and grantees,” Order 12, in fact distributed the Order, and have communicated with Plaintiffs about the Order.
Second, and as explained further below, the language applicable to Defendants’ assertions is plain and unambiguous and compels the result opposite from Defendants’ assertion. That is, the plain language of the Order sweeps in all incorporated articulations of the Federal Funding Freeze that are patent in the OMB Directive and the Order requires compliance without exception for administrative or operational difficulties, especially for any that extend a multiple of the length of time it took to implement the Federal Funding Freeze in the first instance.
Third, Defendants had the ability to comply with the Order. Simply put, because Defendants were able to cut off funding streams, they are equally able to turn those streams back on. Plaintiff States of course appreciate the need to allow Defendants a short period of time to operationalize the Order, but that time has long since passed. Defendants managed to implement widespread and disruptive funding freezes immediately after the OMB Directive was distributed, yet they have somehow now required a week or more to restore only some of the withheld funding. As described in Plaintiff States’ Motion for Preliminary Injunction 24–34, many of the programs for which funds were still frozen days after entry of the Order conspicuously mirror the President’s policy attacks on funding for environmental projects, foreign aid, university research, and services for low-income families. Defendants’ partial compliance demonstrates that they have the ability to fully comply, and the Order does not allow for selective compliance.
Fourth, Defendants have violated the Order. The evidence is overwhelming, as described supra Section B.2 and in the Motion for Preliminary Injunction 24–34, that Plaintiff States continue to experience widespread disruption in funds without notice or other procedural requirements of the relevant award, agreement, or other instrument. Defendants appear to contend that their conduct is permissible under the Order. Supra Section B.3. But Defendants are wrong. Under the plain and unambiguous text of the Order, which bars Defendants from “implementing, or otherwise giving effect to the OMB Directive under any other name or title or through any other Defendants,” Defendants’ conduct violates the Order. Order 12.
A. The Order Plainly Encompasses Categorical Funding Freezes Tied to Executive Orders (Including the Unleashing American Energy Executive Order)
Defendants apparently take the position that they can implement at least one of the funding freezes called for by the “series of Executive Orders” issued by the President “during the initial days of his Administration,” including “Unleashing American Energy (Jan. 20, 2025),” Ex. 9 to Thomas-Jensen Aff.. But the plain text of the Order does not allow for such an interpretation; “the words of the court’s order have clearly and unambiguously forbidden th[is] precise conduct.” United States v. Saccoccia, 433 F.3d 19, 28 (1st Cir. 2005) (emphasis omitted) (citing Perez v. Danbury Hosp., 347 F.3d 419, 424 (2d Cir. 2003)).
The Order requires Defendants to cease “implementing, or otherwise giving effect to the OMB Directive under any other name or title or through any other Defendants (or agency supervised, administered, or controlled by any Defendant).” Order 12 (emphasis added). The text of the Court’s Order must be read in conjunction with the substance of the OMB Directive, which required agencies to “implement” the Executive Orders issued by the President during the initial days of his administration by “temporarily paus[ing] all activities related to obligation or disbursement of all Federal financial assistance, and other relevant agency activities that may be implicated by the executive orders, including, but not limited to, financial assistance for foreign aid, nongovernmental organizations, DEI, woke gender ideology, and the green new deal.” OMB Directive, Compl. Ex. A. Any categorical pause of obligations or disbursements to implement the Executive Orders is exactly “implementing, or otherwise giving effect to the OMB Directive.” Order 12.
The OMB Directive acknowledges that it is the implementation of prior action. In the Unleashing American Energy Executive Order, the President announced a categorical, immediate, and indefinite pause on federal funds under the IRA and IIJA. Ex. 1 to Thomas-Jensen Aff. at 8353 Specifically, Section 7(a) of the Unleashing American Energy Executive Order, entitled “Terminating the Green New Deal,” ordered all federal agencies to “immediately pause the disbursement of funds appropriated through the [IRA] or the [IIJA].” Id. at 8357. The next day, OMB issued a memorandum clarifying that Section 7(a) of the Unleashing American Energy Executive Order only paused funding that the agencies identified as “Green New Deal” funding, i.e., “funds supporting programs, projects, or activities that may be implicated” by a set of Executive Branch priorities on energy and environmental regulation announced in Section 2 of that Executive Order. Ex. 13 to Thomas-Jensen Aff.. The OMB Directive used equivalent language, express referencing the Unleashing American Energy Executive Order and announcing a categorical pause on disbursing “financial assistance for ... the green new deal.” Compl. Ex. A.
Defendants’ apparent argument that they are permitted to continue to freeze federal funds by reference to the Unleashing Guidance, as long as they do not formally do so pursuant to the OMB Directive, is unavailing. That an earlier directive also directed a categorical funding freeze does not alter or amend the text of this Court’s Order, which restrains Defendants from categorically freezing duly appropriated and obligated funds. After that Order, the OMB Directive may not be given effect, “under any other name or title.” Order 12. That “title” includes the OMB Unleashing Guidance. Indeed, Defendants’ own prior statements reflect that they previously understood the Court’s Order to have that effect: The Notice that Defendants circulated to federal employees and filed with this Court instructed employees not to “pause, freeze, impede, block, cancel, or terminate any awards or obligations on the basis of the OMB Memo, or on the basis of the President’s recently issued Executive Orders.” Notice of Ct. Order 1, ECF No. 51-1 (emphasis added). Neither that Notice nor the document that accompanied it to this Court identified a carveout for other memoranda or guidance documents that implemented functionally the same policy and with functionally the same effect. Indeed, Defendants’ prior, broader understanding of the Court’s Order is, as discussed supra Section B.1, the only plausible one, given that the Court specifically enjoined Defendants from carrying out the same policy “under any other name or title.”
Defendants’ multiple actions to pause IRA/IIJA funds implement the OMB Directive, even if those actions also were also consistent with the OMB Unleashing Guidance. For example, in Rhode Island, the first denial of the Solar for All grant fund drawdown request occurred on January 27, 2025, the same day OMB 25-13 was published. Ex. 108 to Thomas-Jensen Aff. at 14. And the account in the grants administration system was entirely suspended January 28, 2025, at 5:44pm. Id. at 17. Even if the initial draw was rejected as a result of the OMB Unleashing Guidance (and it is not clear that it was), the account suspension was clearly undertaken pursuant to the OMB Directive, going into effect right on time to meet the deadline articulated there. That account suspension, or the act taken pursuant to the OMB Directive, persisted as of February 5. Ex. 108 to Thomas-Jensen Aff. ¶ 19. No explanation that the grant was out of compliance or authority for the suspension of the account was given. Similarly, EPA’s suspension of a Southern California air district’s $500 million award under the Climate Pollution Reduction Grant program went into effect on January 28th precisely—that is, the grant account was available for disbursement on the morning of the 28th, but it disappeared the same afternoon—the day after the OMB Directive was published, but an entire week after OMB’s Unleashing Guidance. Ex. 42 to Thomas-Jensen Aff. ¶¶ 18–19 & Exs. B, C.
In addition, the President continued to order new extensions of the Federal Funding Freeze simultaneous with the OMB Directive taking effect. These Executive Orders are also covered by the Order. In an Executive Order issued January 28, the President ordered federal agencies “that provide[] research or education grants to medical institutions” to “take appropriate steps to ensure” (or, in other words, cut off vital funding) that those institutions immediately discontinue ongoing gender affirming care to existing minor patients and cease to serve minor patients. Ex. 8 to Thomas-Jensen Aff. § 4. That edict issued without regard to the harm to minor patients that would be inflicted by such a cessation or delay of care, in violation of settled law. This continued effort to, in concert with OMB, pause vital funding first without establishing any basis in law is similarly conduct prohibited by the Order.
As these facts demonstrate, Defendants now seek to dress up their actions taken as a result of the OMB Directive and the blanket command contained therein in a new guise. But doing that is what the Court has prohibited: Defendants may not “implement or give effect to” the commands of “the OMB Directive” even if “under any other name or title.” Ascribing action to an Executive Order or a prior Guidance when the action is squarely within scope of OMB 25-13 is giving effect to the OMB Directive under a different name.
B. The Plain Text of the Order Made No Provision for Day After Day of Administrative Pauses and Delays
The Defendants have responded to Plaintiff States’ alerts that some essential federal financial assistance is still inexplicably paused with empty assurances. When Plaintiff States raised examples of the continued freeze of federal financial assistance in the face of the Court’s order, counsel for Defendants suggested “operational and administrative reasons for payments taking longer than normal” as an explanation for days-long delays. Ex. C, 1. “Operational and administrative reasons” is a phrase so vague as to not be helpful at all in understanding whether the Defendants understand and intend to comply with the plain text of this Court’s Order. This is an essential quandary, because from the Plaintiff States’ perspective, the only evidence available is evidence of nonpayment. Defendants were instructed not to leave Plaintiff States in the dark, and in those limited exceptions where some sort of pause or freeze could be supported by applicable legal authority, Defendants must give the appropriate notice and procedural safeguards meant to prevent the disruption here. Order 12.
Without explanation or substantiation, “operational and administrative reasons” for lengthy delays in restoring funding is incredible, particularly given the speed and efficiency with which hundreds of funding streams were frozen in the immediate wake of the OMB Directive. When OMB issued the Directive in the evening on January 27, 2025, it required the temporary pause to “become effective on January 28, 2025, at 5:00 PM.” Compl. Ex. A. Contemporaneous reporting and Plaintiffs’ evidence demonstrate that funding shutoffs began almost immediately after the OMB Directive issued. It is inexplicable why the federal government, which apparently determined it feasible to pause almost all federal funding within 24 hours, has not universally restored access to funds after nearly a week. As explained in the Plaintiff States’ Motion for Preliminary Injunction 34, even a momentary delay in the intricate accounting dance that underpins our cooperative federal system can result in failures to make payroll and the potential shuttering of programs and nonprofit entities that provide vital health and human services to the residents of the Plaintiff States.
Defendants’ assertion that “the mere fact of a pause in funding does not inherently violate the Court’s Order,” Ex. C, also cannot be squared with the plain text of the Order, which states that Defendants “shall not pause” federal financial assistance to the Plaintiff States. Order 11. Of course, as set forth in the Order, there could be an instance where a specific applicable statute, regulation or term of the grant allowed a pause—but in that case, the Defendants must “comply with all notice and procedural requirements in the award, agreement, or other instrument relating to decisions to stop, delay, or otherwise withhold federal financial assistance programs” before funding could be paused. Order 12. Across the Plaintiff States, there is no evidence that Defendants have made any attempt at this compliance as to the funding still paused.
CONCLUSION
For the reasons provided above, the Court should enforce the clear and unambiguous text of its temporary restraining order and order Defendants to immediately restore funds until the preliminary injunction motion can be heard and decided. Plaintiff States do not request any sanction at this time. The Court should further Order that Defendants immediately take every step necessary to effectuate the Order, including clearing any administrative, operational, or technical hurdles to implementation. In addition, the Court should Order compliance with the plain text of the existing Order not to pause any funds on the basis of pronouncements pausing funding incorporated into the OMB Directive, like Section 7(a) of the Unleashing Executive Order and the OMB Unleashing Guidance.
Respectfully submitted,
February 7, 2025
PETER F. NERONHA
Attorney General for the State of Rhode Island
By: /s/ Kathryn M. Sabatini
Kathryn M. Sabatini (RI Bar No. 8486)
Civil Division Chief
Special Assistant Attorney General
Sarah W. Rice (RI Bar No. 10465)
Deputy Chief, Public Protection Bureau
Assistant Attorney General
Leonard Giarrano IV (RI Bar No. 10731)
Special Assistant Attorney General
150 South Main Street
Providence, RI 02903
(401) 274-4400, Ext. 2054
[email protected]
[email protected]
[email protected]
LETITIA JAMES
Attorney General for the State of New York
By: /s/ Rabia Muqaddam
Rabia Muqaddam*
Special Counsel for Federal Initiatives
Michael J. Myers*
Senior Counsel
Molly Thomas-Jensen*
Special Counsel
Colleen Faherty*
Special Trial Counsel
Zoe Levine*
Special Counsel for Immigrant Justice
28 Liberty St.
New York, NY 10005
(929) 638-0447
[email protected]
[email protected]
[email protected]
[email protected]
[email protected]
ROB BONTA
Attorney General for the State of California
By: /s/ Laura L. Faer
Laura L. Faer*
Supervising Deputy Attorney General
Christine Chuang*
Supervising Deputy Attorneys General
Nicholas Green*
Carly Munson*
Kenneth Sugarman*
Christopher J. Kissel*
Lara Haddad*
Theodore McCombs*
Deputy Attorneys General
California Attorney General’s Office
1515 Clay St.
Oakland, CA 94612
(510) 879-3304
KWAME RAOUL
Attorney General for the State of Illinois
By: /s/ Alex Hemmer
Alex Hemmer*
Deputy Solicitor General
115 S. LaSalle St.
Chicago, Illinois 60603
(312) 814-5526
[email protected]
[email protected]
[email protected]
[email protected]
[email protected]
[email protected]
[email protected]
[email protected]
[email protected]
ANDREA JOY CAMPBELL
Attorney General for the Commonwealth of Massachusetts
By: /s/ Katherine B. Dirks
Katherine B. Dirks*
Deputy Chief, Government Bureau
Turner Smith*
Deputy Chief, Energy and Environment Bureau
Anna Lumelsky*
Deputy State Solicitor
1 Ashburton Pl.
Boston, MA 02108
(617.963.2277)
[email protected]
[email protected]
[email protected]
MATTHEW J. PLATKIN
Attorney General for the State of New Jersey
By: /s/ Angela Cai
Angela Cai*
Executive Assistant Attorney General
Jeremy M. Feigenbaum*
Solicitor General
Shankar Duraiswamy*
Deputy Solicitor General
25 Market St.
Trenton, NJ 08625
(609) 376-3377
[email protected]
[email protected]
[email protected]
KRISTEN K. MAYES
Attorney General for the State of Arizona
By: /s/ Joshua D. Bendor
Joshua D. Bendor*
Solicitor General
Nathan Arrowsmith*
2005 North Central Avenue
Phoenix, Arizona 85004
(602) 542-3333
[email protected]
[email protected]
WILLIAM TONG
Attorney General for the State of Connecticut
By: /s/ Michael K. Skold
Michael K. Skold*
Solicitor General
Jill Lacedonia
165 Capitol Ave
Hartford, CT 06106
(860) 808 5020
[email protected]
[email protected]
PHILIP J. WEISER
Attorney General for the State of Colorado
By: /s/ Shannon Stevenson
Shannon Stevenson*
Solicitor General
Ralph L. Carr Judicial Center
1300 Broadway, 10th Floor
Denver, Colorado 80203
(720) 508-6000
[email protected]
KATHLEEN JENNINGS
Attorney General of Delaware
By: /s/ Vanessa L. Kassab
Vanessa L. Kassab*
Deputy Attorney General
Delaware Department of Justice
820 N. French Street
Wilmington, DE 19801
(302) 577-8413
[email protected]
BRIAN L. SCHWALB
Attorney General for the District of Columbia
By: /s/ Andrew Mendrala
Andrew Mendrala*
Assistant Attorney General
Public Advocacy Division
Office of the Attorney General for the District of Columbia
400 Sixth Street, NW
Washington, DC 20001
(202) 724-9726
[email protected]
ANNE E. LOPEZ
Attorney General for the State of Hawaiʻi
By: /s/ Kalikoʻonālani D. Fernandes
David D. Day*
Special Assistant to the Attorney General
Kalikoʻonālani D. Fernandes*
Solicitor General
425 Queen Street
Honolulu, HI 96813
(808) 586-1360
[email protected]
[email protected]
AARON M. FREY
Attorney General for the State of Maine
By: /s/ Jason Anton
Jason Anton*
Assistant Attorney General
Maine Office of the Attorney General
6 State House Station
Augusta, ME 04333
207-626-8800
[email protected]
ANTHONY G. BROWN
Attorney General for the State of Maryland
By: /s/ Adam D. Kirschner
Adam D. Kirschner*
Senior Assistant Attorney General
Office of the Attorney General
200 Saint Paul Place, 20th Floor
Baltimore, Maryland 21202
410-576-6424
[email protected]
DANA NESSEL
Attorney General of Michigan
By: /s/ Linus Banghart-Linn
Linus Banghart-Linn*
Chief Legal Counsel
Neil Giovanatti*
Assistant Attorney General
Michigan Department of Attorney General
525 W. Ottawa St.
Lansing, MI 48933
(517) 281-6677
[email protected]
[email protected]
KEITH ELLISON
Attorney General for the State of Minnesota
By: /s/ Liz Kramer
Liz Kramer*
Solicitor General
445 Minnesota Street, Suite 1400
St. Paul, Minnesota, 55101
(651) 757-1010
[email protected]
AARON D. FORD
Attorney General of Nevada
/s/ Heidi Parry Stern
Heidi Parry Stern*
Solicitor General
Office of the Nevada Attorney General
1 State of Nevada Way, Ste. 100
Las Vegas, NV 89119
(702) 486-5708
[email protected]
RAÚL TORREZ
Attorney General for the State of New Mexico
By: /s/ Anjana Samant
Anjana Samant*
Deputy Counsel
NM Department of Justice
408 Galisteo Street
Santa Fe, New Mexico 87501
505-270-4332
[email protected]
JEFF JACKSON
Attorney General for the State of North Carolina
By: /s/ Daniel P. Mosteller
Daniel P. Mosteller*
Associate Deputy Attorney General
PO Box 629
Raleigh, NC 27602
919-716-6026
[email protected]
DAN RAYFIELD
Attorney General for the State of Oregon
By: /s/ Christina Beatty-Walters
Christina Beatty-Walters*
Senior Assistant Attorney General
100 SW Market Street
Portland, OR 97201
(971) 673-1880
[email protected]
CHARITY R. CLARK
Attorney General for the State of Vermont
By: /s/ Jonathan T. Rose
Jonathan T. Rose*
Solicitor General
109 State Street
Montpelier, VT 05609
(802) 793-1646
[email protected]
NICHOLAS W. BROWN
Attorney General for the State of Washington
By: /s Andrew Hughes
Andrew Hughes*
Assistant Attorney General
Leah Brown*
Assistant Attorney General
Office of the Washington State Attorney General
800 Fifth Avenue, Suite 2000
Seattle, WA 98104
(206) 464-7744
[email protected]
[email protected]
JOSHUA L. KAUL
Attorney General for the State of Wisconsin
By: /s Aaron J. Bibb
Aaron J. Bibb*
Assistant Attorney General
Wisconsin Department of Justice
17 West Main Street
Post Office Box 7857
Madison, Wisconsin 53707-7857
(608) 266-0810
[email protected]
*Admitted Pro Hac Vice
CERTIFICATE OF SERVICE
I, the undersigned, hereby certify that I filed the within via the ECF filing system and that a copy is available for viewing and downloading. I have also caused a copy to be sent via the ECF System to counsel of record on this 7th day of February, 2025.
/s/ Sarah W. Rice
*************************************
Exhibit A
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
STATE OF NEW YORK, et al.,
Plaintiffs,
v.
DONALD TRUMP, et al.,
Defendants.
Civil Action No. 1:25-cv-00039-JJM
DECLARATION OF MAYA BEAL
Declaration of Maya Beal
I, Maya Beal, declare as follows:
1. I am over the age of 18, competent to testify as to the matters herein, and make this declaration based on my personal knowledge.
2. I am the Director of Finance and Operations for the International Training and Education Center for Health (I-TECH) at the University of Washington. The Director of Finance and Operations provides direction and leadership for I-TECH’s worldwide financial reporting and accountability, operations and award management. This position ensures all I-TECH systems follow standards established by the State Office of Financial Management, the Financial Accounting Standards Board, the Office of Management and Budget, and various funding sources (federal and private).
3. I-TECH is a center in the University of Washington’s Department of Global Health within the School of Public Health and School of Medicine. I-TECH has activities in more than 25 countries and is committed to building long-term capacity through health systems strengthening; human resources for health; and targeted, data-driven interventions and research that are responsive to local needs. Our unique approach to sustainability and capacity building, through training and technical assistance, creates a strong foundation for contextually appropriate health programs. Our programs effectively tackle emerging health threats and address national health priorities to achieve high quality, compassionate, and equitable health care. I-TECH partners with country governments, universities, non-governmental organizations, civil society partners, and funders to design and implement locally relevant health programs within existing local systems and processes. I-TECH has led or supported programs in more than 30 countries in Africa, South America, Asia, Eastern Europe, and the Caribbean.
4. Since its founding in 2002, I-TECH’s accomplishments are numerous and vital to the communities it serves. Between 2017 and 2023, I-TECH supported over 1,000 health care facilities and 120 laboratories. During this period, I-TECH supported 250,000 people being initiated on ART, more than 660,000 men circumcised, 5.3 million people tested for HIV, and more than 340,000 women tested for cervical cancer.
5. Moreover, I-TECH has created more than 400 training programs and products that have been adopted by ministries of health in Africa, Asia, and the Caribbean Region. I-TECH has trained more than 400,000 health care workers. I-TECH has also led national pre-service curriculum reform in five countries and led faculty development efforts to strengthen delivery of competency-based courses.
6. As a long-time U.S. President’s Emergency Plan for AIDS Relief (PEPFAR) implementing partner, I-TECH has administered projects sponsored by the U.S. Centers for Disease Control and Prevention (CDC), the U.S. Health Resources and Services Administration (HRSA), the U.S. Department of Defense, the National Institutes of Health (NIH), and U.S. Agency for International Development (USAID). The majority of I-TECH’s grants originate from PEPFAR and are awarded and administered by HRSA and CDC.
7. On September 9, 2024, HRSA awarded I-TECH a grant (FAIN # U9106801) that obligated $8,129,869 for “Capacity Building for Sustainable HIV Services.” The objective of this grant was to “[i]mprove health outcomes for PLHIV along the HIV care continuum by building sustainable health systems, including a global workforce with the right skills, mix and distribution to respond to HIV and other population health priorities.” A true and correct copy of this September 9, 2024, Notice of Award, with a budget period between September 30, 2024, and September 29, 2025, is attached hereto as Exhibit A. As of January 22, 2025, UW has spent approximately $2,442,036 of the $8,129,869 obligated under this grant.
8. On September 10, 2024, HRSA awarded I-TECH a grant (FAIN # U1N45176) that obligated $380,862 for “Quality Improvement Solutions for Sustained Epidemic Control Project.” The objective of this grant was to further “[q]uality [i]mprovement for improved HIV services” in the Democratic Republic of Congo, including “[d]elivery of training and mentoring services by quality improvement coaches” and “[n]ational level support to DRC Ministry of Health for an improved HIV services framework.” A true and correct copy of this September 10, 2024, Notice of Award, with a budget period between September 30, 2024, and September 29, 2025, is attached hereto as Exhibit B. As of January 22, 2025, UW has spent approximately $200,207 of the $380,862 obligated under this grant.
9. I-TECH also has received a significant number of grants from the CDC. The CDC has already awarded fourteen (14) PEPFAR grants to I-TECH as a prime recipient and subrecipient, running to 2026-2028, obligating approximately $12,733,706 in federal funds for various projects, including strengthening health services in clinics and other critical public health infrastructure in Namibia, Malawi, and Mozambique. As of January 22, 2025, I-TECH has spent at least $3,942,071 pursuant to these CDC grants.
10. On January 27, 2025, I-TECH received from HRSA two stop-work orders for both its “Capacity Building” and “Quality Improvement” grants. These stop-work orders, which both took the form of subsequent “Notice[s] of Award,” contained identical boilerplate language, stating that because of the “President’s Executive Order on Reevaluating and Realigning United States Foreign Aid,” UW and I-TECH must “immediately cease all activities on this award, which includes activities conducted under subawards and contracts.” They directed that “[a]ctivities are suspended until further notice” and “further activities” would be subject to “additional guidance and the future availability of funds.” Additionally, they directed that “[n]o additional costs may be incurred, however any costs incurred prior to January 24, 2025, may be allowable for payment.” Finally, the stop-work orders did not give any additional reason for their cessation of payment obligations, but did make clear that “[t]his action is not subject to appeal.” True and correct copies of these January 27, 2025, stop-work orders are attached hereto as Exhibits C and D.
11. On January 29, 2025, UW and I-TECH also received additional stop-work orders for its four prime awards funded by CDC grants under PEPFAR: (1) the $965,932 grant for “Advancing Sustainable Implementation of Comprehensive HIV/TB Services for Epidemic Control in the Republic of Mozambique” (FAIN # NU2GGH002374); (2) the $2,250,000 grant for “Human Resources for Health (HRH) to Achieve and Sustain HIV/TB Epidemic Control in Malawi” FAIN # NU2GGH002298); (3) the $2,899,149 grant for “HIV Surveillance for Epidemic Control in Malawi” (FAIN # NU2GGH002423); and (4) the $3,960,457 grant for “Namibia Mechanism for Public Health Assistance, Capacity, and Technical Support” (FAIN # NU2GGH002242). Each stop work order contained the same boilerplate language as the HRSA stop-work orders explaining that “in accordance with the President’s Executive Order on Reevaluating and Realigning United States Foreign Aid,” UW and I-TECH must “immediately cease all activities on this award, which includes activities under subawards and contracts. Activities are suspended until further notice. Further activities will be subject to additional guidance and the future availability of funds.” The CDC stop-work orders further repeated the same directive from the HRSA stop-work orders that “[t]he grant funds on this award are restricted until further notice. No additional costs may be incurred. Any costs incurred prior to January 24, 2025, may be allowable for payment.” True and correct copies of these four January 29, 2025, CDC stop-work orders are attached hereto as Exhibits E, F, G, and H.
12. On January 31, 2025, the Rhode Island District Court issued a temporary restraining order (TRO) prohibiting the federal financial assistance freeze against federal agencies, including CDC and HRSA.
13. On February 1, 2025, the CDC loaded a Notice of Court Order to our grant files in GrantSolutions. A true and correct copy of this Notice is attached hereto as Exhibit I. This Notice promised “federal agencies could not pause, freeze, impede, block, cancel, or terminate any awards or obligations on the basis of the OMB Memo, or on the basis of the President’s recently issued Executive Orders.” Based on this Notice, I-TECH resumed its award activities.
14. On February 5, 2025, all I-TECH CDC PEPFAR prime grantees received Notices of Award, continuing to partially implement the President’s Executive Order, Reevaluating and Realigning United States Foreign Aid. A true and correct copy of this notice is attached hereto as Exhibit J. It provided a “Limited Waiver to the Pause of U.S. Foreign Assistance for Life-Saving HIV Service Provision.” This limited waiver does not cover “non-life saving assistance” including prevention of HIV transmission, outside of mother-to-child. For activities that fall under the waiver, CDC requires the University of Washington to use the manual payment method. This method adds a burden not contemplated by the terms and conditions of the cooperative agreements entered by I-TECH. This waiver, although facially is meant to cover life-saving services, does not necessarily effectuate its intent. For example, for one CDC program, I-TECH will need to lay off and pay severance for the employees that provide non-covered services. These closeout costs will likely exceed the funds that have been obligated, thus negating I-TECH’s ability to continue to both provide life-saving care that falls under the waiver and adhere with labor regulations and the close out processes required under federal funding regulations.
15. On February 6, 2025, all HRSA I-TECH grantees received an email, continuing to partially implement the President’s Executive Order, Reevaluating and Realigning United States Foreign Aid, and notifying grantees of a “Limited Waiver to the Pause of U.S. Foreign Assistance for Life-Saving HIV Service Provision.” A true and correct copy of this email is attached hereto as Exhibit K. This limited waiver does not cover “non-life saving assistance” including prevention of HIV transmission, outside of mother-to-child. As a result, I-TECH will need to shut down one HRSA funded program entirely.
16. I-TECH staff and faculty were shocked and surprised to receive these stop-work orders, which appeared to conflict with the TRO.
I declare under penalty of perjury under the laws of the State of Washington and the United States of America that the foregoing is true and correct.
Executed this 7th day of February 2025, at Seattle, Washington.
MAYA BEAL
Director of Finance and Operations
I-TECH
SEE PDF FOR OTHER EXHIBITS
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Part 1 of 4
Clinton v. City of New York (97-1374)
985 F. Supp. 168, affirmed.
Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U.S. 321, 337.
SUPREME COURT OF THE UNITED STATES
CLINTON, PRESIDENT OF THE UNITED STATES, et al. v. CITY OF NEW YORK et al.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
No. 97—1374. Argued April 27, 1998–Decided June 25, 1998
Last Term, this Court determined on expedited review that Members of Congress did not have standing to maintain a constitutional challenge to the Line Item Veto Act (Act), 2 U.S.C. § 691 et seq., because they had not alleged a sufficiently concrete injury. Raines v. Byrd, 521 U.S. ___. Within two months, the President exercised his authority under the Act by canceling §4722(c) of the Balanced Budget Act of 1997, which waived the Federal Government’s statutory right to recoupment of as much as $2.6 billion in taxes that the State of New York had levied against Medicaid providers, and §968 of the Taxpayer Relief Act of 1997, which permitted the owners of certain food refiners and processors to defer recognition of capital gains if they sold their stock to eligible farmers’ cooperatives. Appellees, claiming they had been injured, filed separate actions against the President and other officials challenging the cancellations. The plaintiffs in the first case are the City of New York, two hospital associations, one hospital, and two unions representing health care employees. The plaintiffs in the second are the Snake River farmers’ cooperative and one of its individual members. The District Court consolidated the cases, determined that at least one of the plaintiffs in each had standing under Article III, and ruled, inter alia, that the Act’s cancellation procedures violate the Presentment Clause, Art. I, §7, cl. 2. This Court again expedited its review.
Held:
1. The appellees have standing to challenge the Act’s constitutionality. They invoked the District Court’s jurisdiction under a section entitled “Expedited Review,” which, among other things, expressly authorizes “any individual adversely affected” to bring a constitutional challenge. §692(a)(1). The Government’s argument that none of them except the individual Snake River member is an “individual” within §692(a)(1)’s meaning is rejected because, in the context of the entire section, it is clear that Congress meant that word to be construed broadly to include corporations and other entities. The Court is also unpersuaded by the Government’s argument that appellees’ challenge is nonjusticiable. These cases differ from Raines, not only because the President’s exercise of his cancellation authority has removed any concern about the dispute’s ripeness, but more importantly because the parties have alleged a “personal stake” in having an actual injury redressed, rather than an “institutional injury” that is “abstract and widely dispersed.” 521 U.S., at ___. There is no merit to the Government’s contention that, in both cases, the appellees have not suffered actual injury because their claims are too speculative and, in any event, are advanced by the wrong parties. Because New York State now has a multibillion dollar contingent liability that had been eliminated by §4722(c), the State, and the appellees, suffered an immediate, concrete injury the moment the President canceled the section and deprived them of its benefits. The argument that New York’s claim belongs to the State, not appellees, fails in light of New York statutes demonstrating that both New York City and the appellee providers will be assessed for substantial portions of any recoupment payments the State has to make. Similarly, the President’s cancellation of §968 inflicted a sufficient likelihood of economic injury on the Snake River appellees to establish standing under this Court’s precedents, cf. Bryant v. Yellen, 447 U.S. 352, 368. The assertion that, because processing facility sellers would have received the tax benefits, only they have standing to challenge the §968 cancellation not only ignores the fact that the cooperatives were the intended beneficiaries of §968, but also overlooks the fact that more than one party may be harmed by a defendant and therefore have standing. Pp. 9—17.
2. The Act’s cancellation procedures violate the Presentment Clause. Pp. 17—31.
(a) The Act empowers the President to cancel an “item of new direct spending” such as §4722(c) of the Balanced Budget Act and a “limited tax benefit” such as §968 of the Taxpayer Relief Act, §691(a), specifying that such cancellation prevents a provision “from having legal force or effect,” §§691e(4)(B)—(C). Thus, in both legal and practical effect, the presidential actions at issue have amended two Acts of Congress by repealing a portion of each. Statutory repeals must conform with Art. I, INS v. Chadha, 462 U.S. 919, 954, but there is no constitutional authorization for the President to amend or repeal. Under the Presentment Clause, after a bill has passed both Houses, but “before it become[s] a Law,” it must be presented to the President, who “shall sign it” if he approves it, but “return it,” i.e., “veto” it, if he does not. There are important differences between such a “return” and cancellation under the Act: The constitutional return is of the entire bill and takes place before it becomes law, whereas the statutory cancellation occurs after the bill becomes law and affects it only in part. There are powerful reasons for construing the constitutional silence on the profoundly important subject of presidential repeals as equivalent to an express prohibition. The Article I procedures governing statutory enactment were the product of the great debates and compromises that produced the Constitution itself. Familiar historical materials provide abundant support for the conclusion that the power to enact statutes may only “be exercised in accord with a single, finely wrought and exhaustively considered, procedure.” Chadha, 462 U.S., at 951. What has emerged in the present cases, however, are not the product of the “finely wrought” procedure that the Framers designed, but truncated versions of two bills that passed both Houses. Pp. 17—24.
(b) The Court rejects two related Government arguments. First, the contention that the cancellations were merely exercises of the President’s discretionary authority under the Balanced Budget Act and the Taxpayer Relief Act, read in light of the previously enacted Line Item Veto Act, is unpersuasive. Field v. Clark, 143 U.S. 649, 693, on which the Government relies, suggests critical differences between this cancellation power and the President’s statutory power to suspend import duty exemptions that was there upheld: such suspension was contingent on a condition that did not predate its statute, the duty to suspend was absolute once the President determined the contingency had arisen, and the suspension executed congressional policy. In contrast, the Act at issue authorizes the President himself to effect the repeal of laws, for his own policy reasons, without observing Article I, §7, procedures. Second, the contention that the cancellation authority is no greater than the President’s traditional statutory authority to decline to spend appropriated funds or to implement specified tax measures fails because this Act, unlike the earlier laws, gives the President the unilateral power to change the text of duly enacted statutes. Pp. 23—29.
(c) The profound importance of these cases makes it appropriate to emphasize three points. First, the Court expresses no opinion about the wisdom of the Act’s procedures and does not lightly conclude that the actions of the Congress that passed it, and the President who signed it into law, were unconstitutional. The Court has, however, twice had full argument and briefing on the question and has concluded that its duty is clear. Second, having concluded that the Act’s cancellation provisions violate Article I, §7, the Court finds it unnecessary to consider the District Court’s alternative holding that the Act impermissibly disrupts the balance of powers among the three branches of Government. Third, this decision rests on the narrow ground that the Act’s procedures are not authorized by the Constitution. If this Act were valid, it would authorize the President to create a law whose text was not voted on by either House or presented to the President for signature. That may or may not be desirable, but it is surely not a document that may “become a law” pursuant to Article I, §7. If there is to be a new procedure in which the President will play a different role, such change must come through the Article V amendment procedures. Pp. 29—31.
985 F. Supp. 168, affirmed.
Stevens, J., delivered the opinion of the Court, in which Rehnquist, C. J., and Kennedy, Souter, Thomas, and Ginsburg, JJ., joined. Kennedy, J., filed a concurring opinion. Scalia, J., filed an opinion concurring in part and dissenting in part, in which O’Connor, J., joined, and in which Breyer, J., joined as to Part III. Breyer, J., filed a dissenting opinion, in which O’Connor and Scalia, JJ., joined as to Part III.
***
Opinion of the Court
NOTICE: This opinion is subject to formal revision before publication in the preliminary print of the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order that corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
No. 97—1374
WILLIAM J. CLINTON, PRESIDENT OF THE UNITED STATES, et al., APPELLANTS v. CITY OF NEW YORK et al.
ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
[June 25, 1998]
Justice Stevens delivered the opinion of the Court.
The Line Item Veto Act (Act), 110 Stat. 1200, 2 U.S.C. § 691 et seq. (1994 ed., Supp. II), was enacted in April 1996 and became effective on January 1, 1997. The following day, six Members of Congress who had voted against the Act brought suit in the District Court for the District of Columbia challenging its constitutionality. On April 10, 1997, the District Court entered an order holding that the Act is unconstitutional. Byrd v. Raines, 956 F. Supp. 25. In obedience to the statutory direction to allow a direct, expedited appeal to this Court, see §§692(b)—(c), we promptly noted probable jurisdiction and expedited review, 520 U.S. ___ (1997). We determined, however, that the Members of Congress did not have standing to sue because they had not “alleged a sufficiently concrete injury to have established Article III standing,” Raines v. Byrd, 521 U.S. ___, ___ (1997) (slip op., at 18); thus, “in … light of [the] overriding and time-honored concern about keeping the Judiciary’s power within its proper constitutional sphere,” id., at ___ (slip op., at 8), we remanded the case to the District Court with instructions to dismiss the complaint for lack of jurisdiction.
Less than two months after our decision in that case, the President exercised his authority to cancel one provision in the Balanced Budget Act of 1997, Pub. L. 105—33, 111 Stat. 251, 515, and two provisions in the Taxpayer Relief Act of 1997, Pub. L. 105—34, 111 Stat. 788, 895—896, 990—993. Appellees, claiming that they had been injured by two of those cancellations, filed these cases in the District Court. That Court again held the statute invalid, 985 F. Supp. 168, 177—182 (1998), and we again expedited our review, 522 U.S. ___ (1998). We now hold that these appellees have standing to challenge the constitutionality of the Act and, reaching the merits, we agree that the cancellation procedures set forth in the Act violate the Presentment Clause, Art. I, §7, cl. 2, of the Constitution.
I
We begin by reviewing the canceled items that are at issue in these cases.
Section 4722(c) of the Balanced Budget Act
Title XIX of the Social Security Act, 79 Stat. 343, as amended, authorizes the Federal Government to transfer huge sums of money to the States to help finance medical care for the indigent. See 42 U.S.C. § 1396d(b). In 1991, Congress directed that those federal subsidies be reduced by the amount of certain taxes levied by the States on health care providers.1 In 1994, the Department of Health and Human Services (HHS) notified the State of New York that 15 of its taxes were covered by the 1991 Act, and that as of June 30, 1994, the statute therefore required New York to return $955 million to the United States. The notice advised the State that it could apply for a waiver on certain statutory grounds. New York did request a waiver for those tax programs, as well as for a number of others, but HHS has not formally acted on any of those waiver requests. New York has estimated that the amount at issue for the period from October 1992 through March 1997 is as high as $2.6 billion.
Because HHS had not taken any action on the waiver requests, New York turned to Congress for relief. On August 5, 1997, Congress enacted a law that resolved the issue in New York’s favor. Section 4722(c) of the Balanced Budget Act of 1997 identifies the disputed taxes and provides that they “are deemed to be permissible health care related taxes and in compliance with the requirements” of the relevant provisions of the 1991 statute.2
On August 11, 1997, the President sent identical notices to the Senate and to the House of Representatives canceling “one item of new direct spending,” specifying §4722(c) as that item, and stating that he had determined that “this cancellation will reduce the Federal budget deficit.” He explained that §4722(c) would have permitted New York “to continue relying upon impermissible provider taxes to finance its Medicaid program” and that “[t]his preferential treatment would have increased Medicaid costs, would have treated New York differently from all other States, and would have established a costly precedent for other States to request comparable treatment.”3
Section 968 of the Taxpayer Relief Act
A person who realizes a profit from the sale of securities is generally subject to a capital gains tax. Under existing law, however, an ordinary business corporation can acquire a corporation, including a food processing or refining company, in a merger or stock-for-stock transaction in which no gain is recognized to the seller, see 26 U.S.C. § 354(a), 368(a); the seller’s tax payment, therefore, is deferred. If, however, the purchaser is a farmers’ cooperative, the parties cannot structure such a transaction because the stock of the cooperative may be held only by its members, see 26 U.S.C. § 521(b)(2); thus, a seller dealing with a farmers’ cooperative cannot obtain the benefits of tax deferral.
In §968 of the Taxpayer Relief Act of 1997, Congress amended §1042 of the Internal Revenue Code to permit owners of certain food refiners and processors to defer the recognition of gain if they sell their stock to eligible farmers’ cooperatives.4 The purpose of the amendment, as repeatedly explained by its sponsors, was “to facilitate the transfer of refiners and processors to farmers’ cooperatives.” 5 The amendment to §1042 was one of the 79 “limited tax benefits” authorized by the Taxpayer Relief Act of 1997 and specifically identified in Title XVII of that Act as “subject to [the] line item veto.” 6
On the same date that he canceled the “item of new direct spending” involving New York’s health care programs, the President also canceled this limited tax benefit. In his explanation of that action, the President endorsed the objective of encouraging “value-added farming through the purchase by farmers’ cooperatives of refiners or processors of agricultural goods,” 7 but concluded that the provision lacked safeguards and also “failed to target its benefits to small-and-medium-size cooperatives.” 8
II
Appellees filed two separate actions against the President 9 and other federal officials challenging these two cancellations. The plaintiffs in the first case are the City of New York, two hospital associations, one hospital, and two unions representing health care employees. The plaintiffs in the second are a farmers’ cooperative consisting of about 30 potato growers in Idaho and an individual farmer who is a member and officer of the cooperative. The District Court consolidated the two cases and determined that at least one of the plaintiffs in each had standing under Article III of the Constitution.
Appellee New York City Health and Hospitals Corporation (NYCHHC) is responsible for the operation of public health care facilities throughout the City of New York. If HHS ultimately denies the State’s waiver requests, New York law will automatically require 10 NYCHHC to make retroactive tax payments to the State of about $4 million for each of the years at issue. 985 F. Supp., at 172. This contingent liability for NYCHHC, and comparable potential liabilities for the other appellee health care providers, were eliminated by §4722(c) of the Balanced Budget Act of 1997 and revived by the President’s cancellation of that provision. The District Court held that the cancellation of the statutory protection against these liabilities constituted sufficient injury to give these providers Article III standing.
Appellee Snake River Potato Growers, Inc. (Snake River) was formed in May 1997 to assist Idaho potato farmers in marketing their crops and stabilizing prices, in part through a strategy of acquiring potato processing facilities that will allow the members of the cooperative to retain revenues otherwise payable to third-party processors. At that time, Congress was considering the amendment to the capital gains tax that was expressly intended to aid farmers’ cooperatives in the purchase of processing facilities, and Snake River had concrete plans to take advantage of the amendment if passed. Indeed, appellee Mike Cranney, acting on behalf of Snake River, was engaged in negotiations with the owner of an Idaho potato processor that would have qualified for the tax benefit under the pending legislation, but these negotiations terminated when the President canceled §968. Snake River is currently considering the possible purchase of other processing facilities in Idaho if the President’s cancellation is reversed. Based on these facts, the District Court concluded that the Snake River plaintiffs were injured by the President’s cancellation of §968, as they “lost the benefit of being on equal footing with their competitors and will likely have to pay more to purchase processing facilities now that the sellers will not [be] able to take advantage of section 968’s tax breaks.” Id., at 177.
On the merits, the District Court held that the cancellations did not conform to the constitutionally mandated procedures for the enactment or repeal of laws in two respects. First, the laws that resulted after the cancellations “were different from those consented to by both Houses of Congress.” Id., at 178.11 Moreover, the President violated Article I “when he unilaterally canceled provisions of duly enacted statutes.” Id., at 179.12 As a separate basis for its decision, the District Court also held that the Act “impermissibly disrupts the balance of powers among the three branches of government.” Ibid.
III
As in the prior challenge to the Line Item Veto Act, we initially confront jurisdictional questions. The appellees invoked the jurisdiction of the District Court under the section of the Act entitled “Expedited Review.” That section, 2 U.S.C. § 692(a)(1), expressly authorizes “[a]ny Member of Congress or any individual adversely affected” by the Act to bring an action for declaratory judgment or injunctive relief on the ground that any provision of the Act is unconstitutional. Although the Government did not question the applicability of that section in the District Court, it now argues that, with the exception of Mike Cranney, the appellees are not “individuals” within the meaning of §692(a)(1). Because the argument poses a jurisdictional question (although not one of constitutional magnitude), it is not waived by the failure to raise it in the District Court. The fact that the argument did not previously occur to the able lawyers for the Government does, however, confirm our view that in the context of the entire section Congress undoubtedly intended the word “individual” to be construed as synonymous with the word “person.”13
The special section authorizing expedited review evidences an unmistakable congressional interest in a prompt and authoritative judicial determination of the constitutionality of the Act. Subsection (a)(2) requires that copies of any complaint filed under subsection (a)(1) “shall be promptly delivered” to both Houses of Congress, and that each House shall have a right to intervene. Subsection (b) authorizes a direct appeal to this Court from any order of the District Court, and requires that the appeal be filed within 10 days. Subsection (c) imposes a duty on both the District Court and this Court “to advance on the docket and to expedite to the greatest possible extent the disposition of any matter brought under subsection (a).” There is no plausible reason why Congress would have intended to provide for such special treatment of actions filed by natural persons and to have precluded entirely jurisdiction over comparable cases brought by corporate persons. Acceptance of the Government’s new-found reading of §692 “would produce an absurd and unjust result which Congress could not have intended.” Griffin v. Oceanic Contractors, Inc., 458 U.S. 564, 574 (1982).14
We are also unpersuaded by the Government’s argument that appellees’ challenge to the constitutionality of the Act is nonjusticiable. We agree, of course, that Article III of the Constitution confines the jurisdiction of the federal courts to actual “Cases” and “Controversies,” and that “the doctrine of standing serves to identify those disputes which are appropriately resolved through the judicial process.” Whitmore v. Arkansas, 495 U.S. 149, 155 (1990).15 Our disposition of the first challenge to the constitutionality of this Act demonstrates our recognition of the importance of respecting the constitutional limits on our jurisdiction, even when Congress has manifested an interest in obtaining our views as promptly as possible. But these cases differ from Raines, not only because the President’s exercise of his cancellation authority has removed any concern about the ripeness of the dispute, but more importantly because the parties have alleged a “personal stake” in having an actual injury redressed rather than an “institutional injury” that is “abstract and widely dispersed.” 521 U.S., at ___ (slip op., at 18).
In both the New York and the Snake River cases, the Government argues that the appellees are not actually injured because the claims are too speculative and, in any event, the claims are advanced by the wrong parties. We find no merit in the suggestion that New York’s injury is merely speculative because HHS has not yet acted on the State’s waiver requests. The State now has a multibillion dollar contingent liability that had been eliminated by §4722(c) of the Balanced Budget Act of 1997. The District Court correctly concluded that the State, and the appellees, “suffered an immediate, concrete injury the moment that the President used the Line Item Veto to cancel section 4722(c) and deprived them of the benefits of that law.” 985 F. Supp., at 174. The self-evident significance of the contingent liability is confirmed by the fact that New York lobbied Congress for this relief, that Congress decided that it warranted statutory attention, and that the President selected for cancellation only this one provision in an act that occupies 536 pages of the Statutes-at-Large. His action was comparable to the judgment of an appellate court setting aside a verdict for the defendant and remanding for a new trial of a multibillion dollar damages claim. Even if the outcome of the second trial is speculative, the reversal, like the President’s cancellation, causes a significant immediate injury by depriving the defendant of the benefit of a favorable final judgment. The revival of a substantial contingent liability immediately and directly affects the borrowing power, financial strength, and fiscal planning of the potential obligor.16
We also reject the Government’s argument that New York’s claim is advanced by the wrong parties because the claim belongs to the State of New York, and not appellees. Under New York statutes that are already in place, it is clear that both the City of New York 17 and the appellee health care providers 18 will be assessed by the State for substantial portions of any recoupment payments that the State may have to make to the Federal Government. To the extent of such assessments, they have the same potential liability as the State does.19
The Snake River farmers’ cooperative also suffered an immediate injury when the President canceled the limited tax benefit that Congress had enacted to facilitate the acquisition of processing plants. Three critical facts identify the specificity and the importance of that injury. First, Congress enacted §968 for the specific purpose of providing a benefit to a defined category of potential purchasers of a defined category of assets.20 The members of that statutorily defined class received the equivalent of a statutory “bargaining chip” to use in carrying out the congressional plan to facilitate their purchase of such assets. Second, the President selected §968 as one of only two tax benefits in the Taxpayer Relief Act of 1997 that should be canceled. The cancellation rested on his determination that the use of those bargaining chips would have a significant impact on the Federal budget deficit. Third, the Snake River cooperative was organized for the very purpose of acquiring processing facilities, it had concrete plans to utilize the benefits of §968, and it was engaged in ongoing negotiations with the owner of a processing plant who had expressed an interest in structuring a tax-deferred sale when the President canceled §968. Moreover, it is actively searching for other processing facilities for possible future purchase if the President’s cancellation is reversed; and there are ample processing facilities in the State that Snake River may be able to purchase.21 By depriving them of their statutory bargaining chip, the cancellation inflicted a sufficient likelihood of economic injury to establish standing under our precedents. See, e.g., Investment Company Institute v. Camp, 401 U.S. 617, 620 (1971); 3 K. Davis & R. Pierce, Administrative Law Treatise 13—14 (3d ed. 1994) (“The Court routinely recognizes probable economic injury resulting from [governmental actions] that alter competitive conditions as sufficient to satisfy the [Article III ‘injury-in-fact’ requirement]… . It follows logically that any … petitioner who is likely to suffer economic injury as a result of [governmental action] that changes market conditions satisfies this part of the standing test”).
Appellees’ injury in this regard is at least as concrete as the injury suffered by the respondents in Bryant v. Yellen, 447 U.S. 352 (1980). In that case, we considered whether a rule that generally limited water deliveries from reclamation projects to 160 acres applied to the much larger tracts of the Imperial Irrigation District in southeastern California; application of that limitation would have given large landowners an incentive to sell excess lands at prices below the prevailing market price for irrigated land. The District Court had held that the 160-acre limitation did not apply, and farmers who had hoped to purchase the excess land sought to appeal. We acknowledged that the farmers had not presented “detailed information about [their] financial resources,” and noted that “the prospect of windfall profits could attract a large number of potential purchasers” besides the farmers. Id., at 367, n. 17. Nonetheless, “even though they could not with certainty establish that they would be able to purchase excess lands” if the judgment were reversed, id., at 367, we found standing because it was “likely that excess lands would become available at less than market prices,” id., at 368. The Snake River appellees have alleged an injury that is as specific and immediate as that in Yellen. See also Duke Power Co. v. Carolina Environmental Study Group, Inc., 438 U.S. 59, 72—78 (1978).22
As with the New York case, the Government argues that the wrong parties are before the Court–that because the sellers of the processing facilities would have received the tax benefits, only they have standing to challenge the cancellation of §968. This argument not only ignores the fact that the cooperatives were the intended beneficiaries of §968, but also overlooks the self-evident proposition that more than one party may have standing to challenge a particular action or inaction.23 Once it is determined that a particular plaintiff is harmed by the defendant, and that the harm will likely be redressed by a favorable decision, that plaintiff has standing–regardless of whether there are others who would also have standing to sue. Thus, we are satisfied that both of these actions are Article III “Cases” that we have a duty to decide.
IV
The Line Item Veto Act gives the President the power to “cancel in whole” three types of provisions that have been signed into law: “(1) any dollar amount of discretionary budget authority; (2) any item of new direct spending; or (3) any limited tax benefit.” 2 U.S.C. § 691(a) (1994 ed., Supp. II). It is undisputed that the New York case involves an “item of new direct spending” and that the Snake River case involves a “limited tax benefit” as those terms are defined in the Act. It is also undisputed that each of those provisions had been signed into law pursuant to Article I, §7, of the Constitution before it was canceled.
The Act requires the President to adhere to precise procedures whenever he exercises his cancellation authority. In identifying items for cancellation he must consider the legislative history, the purposes, and other relevant information about the items. See 2 U.S.C. § 691(b) (1994 ed., Supp. II). He must determine, with respect to each cancellation, that it will “(i) reduce the Federal budget deficit; (ii) not impair any essential Government functions; and (iii) not harm the national interest.” §691(a)(A). Moreover, he must transmit a special message to Congress notifying it of each cancellation within five calendar days (excluding Sundays) after the enactment of the canceled provision. See §691(a)(B). It is undisputed that the President meticulously followed these procedures in these cases.
A cancellation takes effect upon receipt by Congress of the special message from the President. See §691b(a). If, however, a “disapproval bill” pertaining to a special message is enacted into law, the cancellations set forth in that message become “null and void.” Ibid. The Act sets forth a detailed expedited procedure for the consideration of a “disapproval bill,” see §691d, but no such bill was passed for either of the cancellations involved in these cases.24 A majority vote of both Houses is sufficient to enact a disapproval bill. The Act does not grant the President the authority to cancel a disapproval bill, see §691(c), but he does, of course, retain his constitutional authority to veto such a bill.25
The effect of a cancellation is plainly stated in §691e, which defines the principal terms used in the Act. With respect to both an item of new direct spending and a limited tax benefit, the cancellation prevents the item “from having legal force or effect.” 2 U.S.C. § 691e(4)(B)—(C) (1994 ed., Supp. II).26 Thus, under the plain text of the statute, the two actions of the President that are challenged in these cases prevented one section of the Balanced Budget Act of 1997 and one section of the Taxpayer Relief Act of 1997 “from having legal force or effect.” The remaining provisions of those statutes, with the exception of the second canceled item in the latter, continue to have the same force and effect as they had when signed into law.
In both legal and practical effect, the President has amended two Acts of Congress by repealing a portion of each. “[R]epeal of statutes, no less than enactment, must conform with Art. I.” INS v. Chadha, 462 U.S. 919, 954 (1983). There is no provision in the Constitution that authorizes the President to enact, to amend, or to repeal statutes. Both Article I and Article II assign responsibilities to the President that directly relate to the lawmaking process, but neither addresses the issue presented by these cases. The President “shall from time to time give to the Congress Information on the State of the Union, and recommend to their Consideration such Measures as he shall judge necessary and expedient … .” Art. II, §3. Thus, he may initiate and influence legislative proposals.27 Moreover, after a bill has passed both Houses of Congress, but “before it become[s] a Law,” it must be presented to the President. If he approves it, “he shall sign it, but if not he shall return it, with his Objections to that House in which it shall have originated, who shall enter the Objections at large on their Journal, and proceed to reconsider it.” Art. I, §7, cl. 2.28 His “return” of a bill, which is usually described as a “veto,” 29 is subject to being overridden by a two-thirds vote in each House.
There are important differences between the President’s “return” of a bill pursuant to Article I, §7, and the exercise of the President’s cancellation authority pursuant to the Line Item Veto Act. The constitutional return takes place before the bill becomes law; the statutory cancellation occurs after the bill becomes law. The constitutional return is of the entire bill; the statutory cancellation is of only a part. Although the Constitution expressly authorizes the President to play a role in the process of enacting statutes, it is silent on the subject of unilateral Presidential action that either repeals or amends parts of duly enacted statutes.
There are powerful reasons for construing constitutional silence on this profoundly important issue as equivalent to an express prohibition. The procedures governing the enactment of statutes set forth in the text of Article I were the product of the great debates and compromises that produced the Constitution itself. Familiar historical materials provide abundant support for the conclusion that the power to enact statutes may only “be exercised in accord with a single, finely wrought and exhaustively considered, procedure.” Chadha, 462 U.S., at 951. Our first President understood the text of the Presentment Clause as requiring that he either “approve all the parts of a Bill, or reject it in toto.” 30 What has emerged in these cases from the President’s exercise of his statutory cancellation powers, however, are truncated versions of two bills that passed both Houses of Congress. They are not the product of the “finely wrought” procedure that the Framers designed.
At oral argument, the Government suggested that the cancellations at issue in these cases do not effect a “repeal” of the canceled items because under the special “lockbox” provisions of the Act,31 a canceled item “retain[s] real, legal budgetary effect” insofar as it prevents Congress and the President from spending the savings that result from the cancellation. Tr. of Oral Arg. 10.32 The text of the Act expressly provides, however, that a cancellation prevents a direct spending or tax benefit provision “from having legal force or effect.” 2 U.S.C. § 691e(4)(B)—(C). That a canceled item may have “real, legal budgetary effect” as a result of the lockbox procedure does not change the fact that by canceling the items at issue in these cases, the President made them entirely inoperative as to appellees. Section 968 of the Taxpayer Relief Act no longer provides a tax benefit, and §4722(c) of the Balanced Budget Act of 1997 no longer relieves New York of its contingent liability.33 Such significant changes do not lose their character simply because the canceled provisions may have some continuing financial effect on the Government.34 The cancellation of one section of a statute may be the functional equivalent of a partial repeal even if a portion of the section is not canceled.
V
The Government advances two related arguments to support its position that despite the unambiguous provisions of the Act, cancellations do not amend or repeal properly enacted statutes in violation of the Presentment Clause. First, relying primarily on Field v. Clark, 143 U.S. 649 (1892), the Government contends that the cancellations were merely exercises of discretionary authority granted to the President by the Balanced Budget Act and the Taxpayer Relief Act read in light of the previously enacted Line Item Veto Act. Second, the Government submits that the substance of the authority to cancel tax and spending items “is, in practical effect, no more and no less than the power to ‘decline to spend’ specified sums of money, or to ‘decline to implement’ specified tax measures.” Brief for Appellants 40. Neither argument is
persuasive.
In Field v. Clark, the Court upheld the constitutionality of the Tariff Act of 1890. Act of Oct. 1, 1890, 26 Stat. 567. That statute contained a “free list” of almost 300 specific articles that were exempted from import duties “unless otherwise specially provided for in this act.” 26 Stat. 602. Section 3 was a special provision that directed the President to suspend that exemption for sugar, molasses, coffee, tea, and hides “whenever, and so often” as he should be satisfied that any country producing and exporting those products imposed duties on the agricultural products of the United States that he deemed to be “reciprocally unequal and unreasonable… .” 26 Stat. 612, quoted in Field, 143 U.S., at 680. The section then specified the duties to be imposed on those products during any such suspension. The Court provided this explanation for its conclusion that §3 had not delegated legislative power to the President:
“Nothing involving the expediency or the just operation of such legislation was left to the determination of the President… . [W]hen he ascertained the fact that duties and exactions, reciprocally unequal and unreasonable, were imposed upon the agricultural or other products of the United States by a country producing and exporting sugar, molasses, coffee, tea or hides, it became his duty to issue a proclamation declaring the suspension, as to that country, which Congress had determined should occur. He had no discretion in the premises except in respect to the duration of the suspension so ordered. But that related only to the enforcement of the policy established by Congress. As the suspension was absolutely required when the President ascertained the existence of a particular fact, it cannot be said that in ascertaining that fact and in issuing his proclamation, in obedience to the legislative will, he exercised the function of making laws… . It was a part of the law itself as it left the hands of Congress that the provisions, full and complete in themselves, permitting the free introduction of sugars, molasses, coffee, tea and hides, from particular countries, should be suspended, in a given contingency, and that in case of such suspensions certain duties should be imposed.” Id., at 693.
This passage identifies three critical differences between the power to suspend the exemption from import duties and the power to cancel portions of a duly enacted statute. First, the exercise of the suspension power was contingent upon a condition that did not exist when the Tariff Act was passed: the imposition of “reciprocally unequal and unreasonable” import duties by other countries. In contrast, the exercise of the cancellation power within five days after the enactment of the Balanced Budget and Tax Reform Acts necessarily was based on the same conditions that Congress evaluated when it passed those statutes. Second, under the Tariff Act, when the President determined that the contingency had arisen, he had a duty to suspend; in contrast, while it is true that the President was required by the Act to make three determinations before he canceled a provision, see 2 U.S.C. § 691(a)(A) (1994 ed., Supp. II), those determinations did not qualify his discretion to cancel or not to cancel. Finally, whenever the President suspended an exemption under the Tariff Act, he was executing the policy that Congress had embodied in the statute. In contrast, whenever the President cancels an item of new direct spending or a limited tax benefit he is rejecting the policy judgment made by Congress and relying on his own policy judgment.35 Thus, the conclusion in Field v. Clark that the suspensions mandated by the Tariff Act were not exercises of legislative power does not undermine our opinion that cancellations pursuant to the Line Item Veto Act are the functional equivalent of partial repeals of Acts of Congress that fail to satisfy Article I, §7.
The Government’s reliance upon other tariff and import statutes, discussed in Field, that contain provisions similar to the one challenged in Field is unavailing for the same reasons.36 Some of those statutes authorized the President to “suspen[d] and discontinu[e]” statutory duties upon his determination that discriminatory duties imposed by other nations had been abolished. See 143 U.S., at 686—687 (discussing Act of Jan. 7, 1824, ch. 4, §4, 4 Stat. 3, and Act of May 24, 1828, ch. 111, 4 Stat. 308).37 A slightly different statute, Act of May 31, 1830, ch. 219, §2, 4 Stat. 425, provided that certain statutory provisions imposing duties on foreign ships “shall be repealed” upon the same no-discrimination determination by the President. See 143 U.S., at 687; see also id., at 686 (discussing similar tariff statute, Act of Mar. 3, 1815, ch. 77, 3 Stat. 224, which provided that duties “are hereby repealed,” “[s]uch repeal to take effect … whenever the President” makes the required determination).
The cited statutes all relate to foreign trade, and this Court has recognized that in the foreign affairs arena, the President has “a degree of discretion and freedom from statutory restriction which would not be admissible were domestic affairs alone involved.” United States v. Curtiss-Wright Export Corp., 299 U.S. 304, 320 (1936). “Moreover, he, not Congress, has the better opportunity of knowing the conditions which prevail in foreign countries.” Ibid.38 More important, when enacting the statutes discussed in Field, Congress itself made the decision to suspend or repeal the particular provisions at issue upon the occurrence of particular events subsequent to enactment, and it left only the determination of whether such events occurred up to the President.39 The Line Item Veto Act authorizes the President himself to effect the repeal of laws, for his own policy reasons, without observing the procedures set out in Article I, §7. The fact that Congress intended such a result is of no moment. Although Congress presumably anticipated that the President might cancel some of the items in the Balanced Budget Act and in the Taxpayer Relief Act, Congress cannot alter the procedures set out in Article I, §7, without amending the Constitution.40
Neither are we persuaded by the Government’s contention that the President’s authority to cancel new direct spending and tax benefit items is no greater than his traditional authority to decline to spend appropriated funds. The Government has reviewed in some detail the series of statutes in which Congress has given the Executive broad discretion over the expenditure of appropriated funds. For example, the First Congress appropriated “sum[s] not exceeding” specified amounts to be spent on various Government operations. See, e.g., Act of Sept. 29, 1789, ch. 23, §1, 1 Stat. 95; Act of Mar. 26, 1790, ch. 4, §1, 1 Stat. 104; Act of Feb. 11, 1791, ch. 6, 1 Stat. 190. In those statutes, as in later years, the President was given wide discretion with respect to both the amounts to be spent and how the money would be allocated among different functions. It is argued that the Line Item Veto Act merely confers comparable discretionary authority over the expenditure of appropriated funds. The critical difference between this statute and all of its predecessors, however, is that unlike any of them, this Act gives the President the unilateral power to change the text of duly enacted statutes. None of the Act’s predecessors could even arguably have been construed to authorize such a change.
VI
Although they are implicit in what we have already written, the profound importance of these cases makes it appropriate to emphasize three points.
First, we express no opinion about the wisdom of the procedures authorized by the Line Item Veto Act. Many members of both major political parties who have served in the Legislative and the Executive Branches have long advocated the enactment of such procedures for the purpose of “ensur[ing] greater fiscal accountability in Washington.” H. R. Conf. Rep. 104—491, p. 15 (1996).41 The text of the Act was itself the product of much debate and deliberation in both Houses of Congress and that precise text was signed into law by the President. We do not lightly conclude that their action was unauthorized by the Constitution.42 We have, however, twice had full argument and briefing on the question and have concluded that our duty is clear.
Second, although appellees challenge the validity of the Act on alternative grounds, the only issue we address concerns the “finely wrought” procedure commanded by the Constitution. Chadha, 462 U.S., at 951. We have been favored with extensive debate about the scope of Congress’ power to delegate law-making authority, or its functional equivalent, to the President. The excellent briefs filed by the parties and their amici curiae have provided us with valuable historical information that illuminates the delegation issue but does not really bear on the narrow issue that is dispositive of these cases. Thus, because we conclude that the Act’s cancellation provisions violate Article I, §7, of the Constitution, we find it unnecessary to consider the District Court’s alternative holding that the Act “impermissibly disrupts the balance of powers among the three branches of government.” 985 F. Supp., at 179.43
Third, our decision rests on the narrow ground that the procedures authorized by the Line Item Veto Act are not authorized by the Constitution. The Balanced Budget Act of 1997 is a 500-page document that became “Public Law 105—33” after three procedural steps were taken: (1) a bill containing its exact text was approved by a majority of the Members of the House of Representatives; (2) the Senate approved precisely the same text; and (3) that text was signed into law by the President. The Constitution explicitly requires that each of those three steps be taken before a bill may “become a law.” Art. I, §7. If one paragraph of that text had been omitted at any one of those three stages, Public Law 105—33 would not have been validly enacted. If the Line Item Veto Act were valid, it would authorize the President to create a different law–one whose text was not voted on by either House of Congress or presented to the President for signature. Something that might be known as “Public Law 105—33 as modified by the President” may or may not be desirable, but it is surely not a document that may “become a law” pursuant to the procedures designed by the Framers of Article I, §7, of the Constitution.
If there is to be a new procedure in which the President will play a different role in determining the final text of what may “become a law,” such change must come not by legislation but through the amendment procedures set forth in Article V of the Constitution. Cf. U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779, 837 (1995).
The judgment of the District Court is affirmed.
Clinton v. City of New York (97-1374)
985 F. Supp. 168, affirmed.
If this Act were valid, it would authorize the President to create a law whose text was not voted on by either House or presented to the President for signature. That may or may not be desirable, but it is surely not a document that may “become a law” pursuant to Article I, §7. If there is to be a new procedure in which the President will play a different role, such change must come through the Article V amendment procedures. Pp. 29—31.
Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U.S. 321, 337.
SUPREME COURT OF THE UNITED STATES
CLINTON, PRESIDENT OF THE UNITED STATES, et al. v. CITY OF NEW YORK et al.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
No. 97—1374. Argued April 27, 1998–Decided June 25, 1998
Last Term, this Court determined on expedited review that Members of Congress did not have standing to maintain a constitutional challenge to the Line Item Veto Act (Act), 2 U.S.C. § 691 et seq., because they had not alleged a sufficiently concrete injury. Raines v. Byrd, 521 U.S. ___. Within two months, the President exercised his authority under the Act by canceling §4722(c) of the Balanced Budget Act of 1997, which waived the Federal Government’s statutory right to recoupment of as much as $2.6 billion in taxes that the State of New York had levied against Medicaid providers, and §968 of the Taxpayer Relief Act of 1997, which permitted the owners of certain food refiners and processors to defer recognition of capital gains if they sold their stock to eligible farmers’ cooperatives. Appellees, claiming they had been injured, filed separate actions against the President and other officials challenging the cancellations. The plaintiffs in the first case are the City of New York, two hospital associations, one hospital, and two unions representing health care employees. The plaintiffs in the second are the Snake River farmers’ cooperative and one of its individual members. The District Court consolidated the cases, determined that at least one of the plaintiffs in each had standing under Article III, and ruled, inter alia, that the Act’s cancellation procedures violate the Presentment Clause, Art. I, §7, cl. 2. This Court again expedited its review.
Held:
1. The appellees have standing to challenge the Act’s constitutionality. They invoked the District Court’s jurisdiction under a section entitled “Expedited Review,” which, among other things, expressly authorizes “any individual adversely affected” to bring a constitutional challenge. §692(a)(1). The Government’s argument that none of them except the individual Snake River member is an “individual” within §692(a)(1)’s meaning is rejected because, in the context of the entire section, it is clear that Congress meant that word to be construed broadly to include corporations and other entities. The Court is also unpersuaded by the Government’s argument that appellees’ challenge is nonjusticiable. These cases differ from Raines, not only because the President’s exercise of his cancellation authority has removed any concern about the dispute’s ripeness, but more importantly because the parties have alleged a “personal stake” in having an actual injury redressed, rather than an “institutional injury” that is “abstract and widely dispersed.” 521 U.S., at ___. There is no merit to the Government’s contention that, in both cases, the appellees have not suffered actual injury because their claims are too speculative and, in any event, are advanced by the wrong parties. Because New York State now has a multibillion dollar contingent liability that had been eliminated by §4722(c), the State, and the appellees, suffered an immediate, concrete injury the moment the President canceled the section and deprived them of its benefits. The argument that New York’s claim belongs to the State, not appellees, fails in light of New York statutes demonstrating that both New York City and the appellee providers will be assessed for substantial portions of any recoupment payments the State has to make. Similarly, the President’s cancellation of §968 inflicted a sufficient likelihood of economic injury on the Snake River appellees to establish standing under this Court’s precedents, cf. Bryant v. Yellen, 447 U.S. 352, 368. The assertion that, because processing facility sellers would have received the tax benefits, only they have standing to challenge the §968 cancellation not only ignores the fact that the cooperatives were the intended beneficiaries of §968, but also overlooks the fact that more than one party may be harmed by a defendant and therefore have standing. Pp. 9—17.
2. The Act’s cancellation procedures violate the Presentment Clause. Pp. 17—31.
(a) The Act empowers the President to cancel an “item of new direct spending” such as §4722(c) of the Balanced Budget Act and a “limited tax benefit” such as §968 of the Taxpayer Relief Act, §691(a), specifying that such cancellation prevents a provision “from having legal force or effect,” §§691e(4)(B)—(C). Thus, in both legal and practical effect, the presidential actions at issue have amended two Acts of Congress by repealing a portion of each. Statutory repeals must conform with Art. I, INS v. Chadha, 462 U.S. 919, 954, but there is no constitutional authorization for the President to amend or repeal. Under the Presentment Clause, after a bill has passed both Houses, but “before it become[s] a Law,” it must be presented to the President, who “shall sign it” if he approves it, but “return it,” i.e., “veto” it, if he does not. There are important differences between such a “return” and cancellation under the Act: The constitutional return is of the entire bill and takes place before it becomes law, whereas the statutory cancellation occurs after the bill becomes law and affects it only in part. There are powerful reasons for construing the constitutional silence on the profoundly important subject of presidential repeals as equivalent to an express prohibition. The Article I procedures governing statutory enactment were the product of the great debates and compromises that produced the Constitution itself. Familiar historical materials provide abundant support for the conclusion that the power to enact statutes may only “be exercised in accord with a single, finely wrought and exhaustively considered, procedure.” Chadha, 462 U.S., at 951. What has emerged in the present cases, however, are not the product of the “finely wrought” procedure that the Framers designed, but truncated versions of two bills that passed both Houses. Pp. 17—24.
(b) The Court rejects two related Government arguments. First, the contention that the cancellations were merely exercises of the President’s discretionary authority under the Balanced Budget Act and the Taxpayer Relief Act, read in light of the previously enacted Line Item Veto Act, is unpersuasive. Field v. Clark, 143 U.S. 649, 693, on which the Government relies, suggests critical differences between this cancellation power and the President’s statutory power to suspend import duty exemptions that was there upheld: such suspension was contingent on a condition that did not predate its statute, the duty to suspend was absolute once the President determined the contingency had arisen, and the suspension executed congressional policy. In contrast, the Act at issue authorizes the President himself to effect the repeal of laws, for his own policy reasons, without observing Article I, §7, procedures. Second, the contention that the cancellation authority is no greater than the President’s traditional statutory authority to decline to spend appropriated funds or to implement specified tax measures fails because this Act, unlike the earlier laws, gives the President the unilateral power to change the text of duly enacted statutes. Pp. 23—29.
(c) The profound importance of these cases makes it appropriate to emphasize three points. First, the Court expresses no opinion about the wisdom of the Act’s procedures and does not lightly conclude that the actions of the Congress that passed it, and the President who signed it into law, were unconstitutional. The Court has, however, twice had full argument and briefing on the question and has concluded that its duty is clear. Second, having concluded that the Act’s cancellation provisions violate Article I, §7, the Court finds it unnecessary to consider the District Court’s alternative holding that the Act impermissibly disrupts the balance of powers among the three branches of Government. Third, this decision rests on the narrow ground that the Act’s procedures are not authorized by the Constitution. If this Act were valid, it would authorize the President to create a law whose text was not voted on by either House or presented to the President for signature. That may or may not be desirable, but it is surely not a document that may “become a law” pursuant to Article I, §7. If there is to be a new procedure in which the President will play a different role, such change must come through the Article V amendment procedures. Pp. 29—31.
985 F. Supp. 168, affirmed.
Stevens, J., delivered the opinion of the Court, in which Rehnquist, C. J., and Kennedy, Souter, Thomas, and Ginsburg, JJ., joined. Kennedy, J., filed a concurring opinion. Scalia, J., filed an opinion concurring in part and dissenting in part, in which O’Connor, J., joined, and in which Breyer, J., joined as to Part III. Breyer, J., filed a dissenting opinion, in which O’Connor and Scalia, JJ., joined as to Part III.
***
Opinion of the Court
NOTICE: This opinion is subject to formal revision before publication in the preliminary print of the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order that corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
No. 97—1374
WILLIAM J. CLINTON, PRESIDENT OF THE UNITED STATES, et al., APPELLANTS v. CITY OF NEW YORK et al.
ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
[June 25, 1998]
Justice Stevens delivered the opinion of the Court.
The Line Item Veto Act (Act), 110 Stat. 1200, 2 U.S.C. § 691 et seq. (1994 ed., Supp. II), was enacted in April 1996 and became effective on January 1, 1997. The following day, six Members of Congress who had voted against the Act brought suit in the District Court for the District of Columbia challenging its constitutionality. On April 10, 1997, the District Court entered an order holding that the Act is unconstitutional. Byrd v. Raines, 956 F. Supp. 25. In obedience to the statutory direction to allow a direct, expedited appeal to this Court, see §§692(b)—(c), we promptly noted probable jurisdiction and expedited review, 520 U.S. ___ (1997). We determined, however, that the Members of Congress did not have standing to sue because they had not “alleged a sufficiently concrete injury to have established Article III standing,” Raines v. Byrd, 521 U.S. ___, ___ (1997) (slip op., at 18); thus, “in … light of [the] overriding and time-honored concern about keeping the Judiciary’s power within its proper constitutional sphere,” id., at ___ (slip op., at 8), we remanded the case to the District Court with instructions to dismiss the complaint for lack of jurisdiction.
Less than two months after our decision in that case, the President exercised his authority to cancel one provision in the Balanced Budget Act of 1997, Pub. L. 105—33, 111 Stat. 251, 515, and two provisions in the Taxpayer Relief Act of 1997, Pub. L. 105—34, 111 Stat. 788, 895—896, 990—993. Appellees, claiming that they had been injured by two of those cancellations, filed these cases in the District Court. That Court again held the statute invalid, 985 F. Supp. 168, 177—182 (1998), and we again expedited our review, 522 U.S. ___ (1998). We now hold that these appellees have standing to challenge the constitutionality of the Act and, reaching the merits, we agree that the cancellation procedures set forth in the Act violate the Presentment Clause, Art. I, §7, cl. 2, of the Constitution.
I
We begin by reviewing the canceled items that are at issue in these cases.
Section 4722(c) of the Balanced Budget Act
Title XIX of the Social Security Act, 79 Stat. 343, as amended, authorizes the Federal Government to transfer huge sums of money to the States to help finance medical care for the indigent. See 42 U.S.C. § 1396d(b). In 1991, Congress directed that those federal subsidies be reduced by the amount of certain taxes levied by the States on health care providers.1 In 1994, the Department of Health and Human Services (HHS) notified the State of New York that 15 of its taxes were covered by the 1991 Act, and that as of June 30, 1994, the statute therefore required New York to return $955 million to the United States. The notice advised the State that it could apply for a waiver on certain statutory grounds. New York did request a waiver for those tax programs, as well as for a number of others, but HHS has not formally acted on any of those waiver requests. New York has estimated that the amount at issue for the period from October 1992 through March 1997 is as high as $2.6 billion.
Because HHS had not taken any action on the waiver requests, New York turned to Congress for relief. On August 5, 1997, Congress enacted a law that resolved the issue in New York’s favor. Section 4722(c) of the Balanced Budget Act of 1997 identifies the disputed taxes and provides that they “are deemed to be permissible health care related taxes and in compliance with the requirements” of the relevant provisions of the 1991 statute.2
On August 11, 1997, the President sent identical notices to the Senate and to the House of Representatives canceling “one item of new direct spending,” specifying §4722(c) as that item, and stating that he had determined that “this cancellation will reduce the Federal budget deficit.” He explained that §4722(c) would have permitted New York “to continue relying upon impermissible provider taxes to finance its Medicaid program” and that “[t]his preferential treatment would have increased Medicaid costs, would have treated New York differently from all other States, and would have established a costly precedent for other States to request comparable treatment.”3
Section 968 of the Taxpayer Relief Act
A person who realizes a profit from the sale of securities is generally subject to a capital gains tax. Under existing law, however, an ordinary business corporation can acquire a corporation, including a food processing or refining company, in a merger or stock-for-stock transaction in which no gain is recognized to the seller, see 26 U.S.C. § 354(a), 368(a); the seller’s tax payment, therefore, is deferred. If, however, the purchaser is a farmers’ cooperative, the parties cannot structure such a transaction because the stock of the cooperative may be held only by its members, see 26 U.S.C. § 521(b)(2); thus, a seller dealing with a farmers’ cooperative cannot obtain the benefits of tax deferral.
In §968 of the Taxpayer Relief Act of 1997, Congress amended §1042 of the Internal Revenue Code to permit owners of certain food refiners and processors to defer the recognition of gain if they sell their stock to eligible farmers’ cooperatives.4 The purpose of the amendment, as repeatedly explained by its sponsors, was “to facilitate the transfer of refiners and processors to farmers’ cooperatives.” 5 The amendment to §1042 was one of the 79 “limited tax benefits” authorized by the Taxpayer Relief Act of 1997 and specifically identified in Title XVII of that Act as “subject to [the] line item veto.” 6
On the same date that he canceled the “item of new direct spending” involving New York’s health care programs, the President also canceled this limited tax benefit. In his explanation of that action, the President endorsed the objective of encouraging “value-added farming through the purchase by farmers’ cooperatives of refiners or processors of agricultural goods,” 7 but concluded that the provision lacked safeguards and also “failed to target its benefits to small-and-medium-size cooperatives.” 8
II
Appellees filed two separate actions against the President 9 and other federal officials challenging these two cancellations. The plaintiffs in the first case are the City of New York, two hospital associations, one hospital, and two unions representing health care employees. The plaintiffs in the second are a farmers’ cooperative consisting of about 30 potato growers in Idaho and an individual farmer who is a member and officer of the cooperative. The District Court consolidated the two cases and determined that at least one of the plaintiffs in each had standing under Article III of the Constitution.
Appellee New York City Health and Hospitals Corporation (NYCHHC) is responsible for the operation of public health care facilities throughout the City of New York. If HHS ultimately denies the State’s waiver requests, New York law will automatically require 10 NYCHHC to make retroactive tax payments to the State of about $4 million for each of the years at issue. 985 F. Supp., at 172. This contingent liability for NYCHHC, and comparable potential liabilities for the other appellee health care providers, were eliminated by §4722(c) of the Balanced Budget Act of 1997 and revived by the President’s cancellation of that provision. The District Court held that the cancellation of the statutory protection against these liabilities constituted sufficient injury to give these providers Article III standing.
Appellee Snake River Potato Growers, Inc. (Snake River) was formed in May 1997 to assist Idaho potato farmers in marketing their crops and stabilizing prices, in part through a strategy of acquiring potato processing facilities that will allow the members of the cooperative to retain revenues otherwise payable to third-party processors. At that time, Congress was considering the amendment to the capital gains tax that was expressly intended to aid farmers’ cooperatives in the purchase of processing facilities, and Snake River had concrete plans to take advantage of the amendment if passed. Indeed, appellee Mike Cranney, acting on behalf of Snake River, was engaged in negotiations with the owner of an Idaho potato processor that would have qualified for the tax benefit under the pending legislation, but these negotiations terminated when the President canceled §968. Snake River is currently considering the possible purchase of other processing facilities in Idaho if the President’s cancellation is reversed. Based on these facts, the District Court concluded that the Snake River plaintiffs were injured by the President’s cancellation of §968, as they “lost the benefit of being on equal footing with their competitors and will likely have to pay more to purchase processing facilities now that the sellers will not [be] able to take advantage of section 968’s tax breaks.” Id., at 177.
On the merits, the District Court held that the cancellations did not conform to the constitutionally mandated procedures for the enactment or repeal of laws in two respects. First, the laws that resulted after the cancellations “were different from those consented to by both Houses of Congress.” Id., at 178.11 Moreover, the President violated Article I “when he unilaterally canceled provisions of duly enacted statutes.” Id., at 179.12 As a separate basis for its decision, the District Court also held that the Act “impermissibly disrupts the balance of powers among the three branches of government.” Ibid.
III
As in the prior challenge to the Line Item Veto Act, we initially confront jurisdictional questions. The appellees invoked the jurisdiction of the District Court under the section of the Act entitled “Expedited Review.” That section, 2 U.S.C. § 692(a)(1), expressly authorizes “[a]ny Member of Congress or any individual adversely affected” by the Act to bring an action for declaratory judgment or injunctive relief on the ground that any provision of the Act is unconstitutional. Although the Government did not question the applicability of that section in the District Court, it now argues that, with the exception of Mike Cranney, the appellees are not “individuals” within the meaning of §692(a)(1). Because the argument poses a jurisdictional question (although not one of constitutional magnitude), it is not waived by the failure to raise it in the District Court. The fact that the argument did not previously occur to the able lawyers for the Government does, however, confirm our view that in the context of the entire section Congress undoubtedly intended the word “individual” to be construed as synonymous with the word “person.”13
The special section authorizing expedited review evidences an unmistakable congressional interest in a prompt and authoritative judicial determination of the constitutionality of the Act. Subsection (a)(2) requires that copies of any complaint filed under subsection (a)(1) “shall be promptly delivered” to both Houses of Congress, and that each House shall have a right to intervene. Subsection (b) authorizes a direct appeal to this Court from any order of the District Court, and requires that the appeal be filed within 10 days. Subsection (c) imposes a duty on both the District Court and this Court “to advance on the docket and to expedite to the greatest possible extent the disposition of any matter brought under subsection (a).” There is no plausible reason why Congress would have intended to provide for such special treatment of actions filed by natural persons and to have precluded entirely jurisdiction over comparable cases brought by corporate persons. Acceptance of the Government’s new-found reading of §692 “would produce an absurd and unjust result which Congress could not have intended.” Griffin v. Oceanic Contractors, Inc., 458 U.S. 564, 574 (1982).14
We are also unpersuaded by the Government’s argument that appellees’ challenge to the constitutionality of the Act is nonjusticiable. We agree, of course, that Article III of the Constitution confines the jurisdiction of the federal courts to actual “Cases” and “Controversies,” and that “the doctrine of standing serves to identify those disputes which are appropriately resolved through the judicial process.” Whitmore v. Arkansas, 495 U.S. 149, 155 (1990).15 Our disposition of the first challenge to the constitutionality of this Act demonstrates our recognition of the importance of respecting the constitutional limits on our jurisdiction, even when Congress has manifested an interest in obtaining our views as promptly as possible. But these cases differ from Raines, not only because the President’s exercise of his cancellation authority has removed any concern about the ripeness of the dispute, but more importantly because the parties have alleged a “personal stake” in having an actual injury redressed rather than an “institutional injury” that is “abstract and widely dispersed.” 521 U.S., at ___ (slip op., at 18).
In both the New York and the Snake River cases, the Government argues that the appellees are not actually injured because the claims are too speculative and, in any event, the claims are advanced by the wrong parties. We find no merit in the suggestion that New York’s injury is merely speculative because HHS has not yet acted on the State’s waiver requests. The State now has a multibillion dollar contingent liability that had been eliminated by §4722(c) of the Balanced Budget Act of 1997. The District Court correctly concluded that the State, and the appellees, “suffered an immediate, concrete injury the moment that the President used the Line Item Veto to cancel section 4722(c) and deprived them of the benefits of that law.” 985 F. Supp., at 174. The self-evident significance of the contingent liability is confirmed by the fact that New York lobbied Congress for this relief, that Congress decided that it warranted statutory attention, and that the President selected for cancellation only this one provision in an act that occupies 536 pages of the Statutes-at-Large. His action was comparable to the judgment of an appellate court setting aside a verdict for the defendant and remanding for a new trial of a multibillion dollar damages claim. Even if the outcome of the second trial is speculative, the reversal, like the President’s cancellation, causes a significant immediate injury by depriving the defendant of the benefit of a favorable final judgment. The revival of a substantial contingent liability immediately and directly affects the borrowing power, financial strength, and fiscal planning of the potential obligor.16
We also reject the Government’s argument that New York’s claim is advanced by the wrong parties because the claim belongs to the State of New York, and not appellees. Under New York statutes that are already in place, it is clear that both the City of New York 17 and the appellee health care providers 18 will be assessed by the State for substantial portions of any recoupment payments that the State may have to make to the Federal Government. To the extent of such assessments, they have the same potential liability as the State does.19
The Snake River farmers’ cooperative also suffered an immediate injury when the President canceled the limited tax benefit that Congress had enacted to facilitate the acquisition of processing plants. Three critical facts identify the specificity and the importance of that injury. First, Congress enacted §968 for the specific purpose of providing a benefit to a defined category of potential purchasers of a defined category of assets.20 The members of that statutorily defined class received the equivalent of a statutory “bargaining chip” to use in carrying out the congressional plan to facilitate their purchase of such assets. Second, the President selected §968 as one of only two tax benefits in the Taxpayer Relief Act of 1997 that should be canceled. The cancellation rested on his determination that the use of those bargaining chips would have a significant impact on the Federal budget deficit. Third, the Snake River cooperative was organized for the very purpose of acquiring processing facilities, it had concrete plans to utilize the benefits of §968, and it was engaged in ongoing negotiations with the owner of a processing plant who had expressed an interest in structuring a tax-deferred sale when the President canceled §968. Moreover, it is actively searching for other processing facilities for possible future purchase if the President’s cancellation is reversed; and there are ample processing facilities in the State that Snake River may be able to purchase.21 By depriving them of their statutory bargaining chip, the cancellation inflicted a sufficient likelihood of economic injury to establish standing under our precedents. See, e.g., Investment Company Institute v. Camp, 401 U.S. 617, 620 (1971); 3 K. Davis & R. Pierce, Administrative Law Treatise 13—14 (3d ed. 1994) (“The Court routinely recognizes probable economic injury resulting from [governmental actions] that alter competitive conditions as sufficient to satisfy the [Article III ‘injury-in-fact’ requirement]… . It follows logically that any … petitioner who is likely to suffer economic injury as a result of [governmental action] that changes market conditions satisfies this part of the standing test”).
Appellees’ injury in this regard is at least as concrete as the injury suffered by the respondents in Bryant v. Yellen, 447 U.S. 352 (1980). In that case, we considered whether a rule that generally limited water deliveries from reclamation projects to 160 acres applied to the much larger tracts of the Imperial Irrigation District in southeastern California; application of that limitation would have given large landowners an incentive to sell excess lands at prices below the prevailing market price for irrigated land. The District Court had held that the 160-acre limitation did not apply, and farmers who had hoped to purchase the excess land sought to appeal. We acknowledged that the farmers had not presented “detailed information about [their] financial resources,” and noted that “the prospect of windfall profits could attract a large number of potential purchasers” besides the farmers. Id., at 367, n. 17. Nonetheless, “even though they could not with certainty establish that they would be able to purchase excess lands” if the judgment were reversed, id., at 367, we found standing because it was “likely that excess lands would become available at less than market prices,” id., at 368. The Snake River appellees have alleged an injury that is as specific and immediate as that in Yellen. See also Duke Power Co. v. Carolina Environmental Study Group, Inc., 438 U.S. 59, 72—78 (1978).22
As with the New York case, the Government argues that the wrong parties are before the Court–that because the sellers of the processing facilities would have received the tax benefits, only they have standing to challenge the cancellation of §968. This argument not only ignores the fact that the cooperatives were the intended beneficiaries of §968, but also overlooks the self-evident proposition that more than one party may have standing to challenge a particular action or inaction.23 Once it is determined that a particular plaintiff is harmed by the defendant, and that the harm will likely be redressed by a favorable decision, that plaintiff has standing–regardless of whether there are others who would also have standing to sue. Thus, we are satisfied that both of these actions are Article III “Cases” that we have a duty to decide.
IV
The Line Item Veto Act gives the President the power to “cancel in whole” three types of provisions that have been signed into law: “(1) any dollar amount of discretionary budget authority; (2) any item of new direct spending; or (3) any limited tax benefit.” 2 U.S.C. § 691(a) (1994 ed., Supp. II). It is undisputed that the New York case involves an “item of new direct spending” and that the Snake River case involves a “limited tax benefit” as those terms are defined in the Act. It is also undisputed that each of those provisions had been signed into law pursuant to Article I, §7, of the Constitution before it was canceled.
The Act requires the President to adhere to precise procedures whenever he exercises his cancellation authority. In identifying items for cancellation he must consider the legislative history, the purposes, and other relevant information about the items. See 2 U.S.C. § 691(b) (1994 ed., Supp. II). He must determine, with respect to each cancellation, that it will “(i) reduce the Federal budget deficit; (ii) not impair any essential Government functions; and (iii) not harm the national interest.” §691(a)(A). Moreover, he must transmit a special message to Congress notifying it of each cancellation within five calendar days (excluding Sundays) after the enactment of the canceled provision. See §691(a)(B). It is undisputed that the President meticulously followed these procedures in these cases.
A cancellation takes effect upon receipt by Congress of the special message from the President. See §691b(a). If, however, a “disapproval bill” pertaining to a special message is enacted into law, the cancellations set forth in that message become “null and void.” Ibid. The Act sets forth a detailed expedited procedure for the consideration of a “disapproval bill,” see §691d, but no such bill was passed for either of the cancellations involved in these cases.24 A majority vote of both Houses is sufficient to enact a disapproval bill. The Act does not grant the President the authority to cancel a disapproval bill, see §691(c), but he does, of course, retain his constitutional authority to veto such a bill.25
The effect of a cancellation is plainly stated in §691e, which defines the principal terms used in the Act. With respect to both an item of new direct spending and a limited tax benefit, the cancellation prevents the item “from having legal force or effect.” 2 U.S.C. § 691e(4)(B)—(C) (1994 ed., Supp. II).26 Thus, under the plain text of the statute, the two actions of the President that are challenged in these cases prevented one section of the Balanced Budget Act of 1997 and one section of the Taxpayer Relief Act of 1997 “from having legal force or effect.” The remaining provisions of those statutes, with the exception of the second canceled item in the latter, continue to have the same force and effect as they had when signed into law.
In both legal and practical effect, the President has amended two Acts of Congress by repealing a portion of each. “[R]epeal of statutes, no less than enactment, must conform with Art. I.” INS v. Chadha, 462 U.S. 919, 954 (1983). There is no provision in the Constitution that authorizes the President to enact, to amend, or to repeal statutes. Both Article I and Article II assign responsibilities to the President that directly relate to the lawmaking process, but neither addresses the issue presented by these cases. The President “shall from time to time give to the Congress Information on the State of the Union, and recommend to their Consideration such Measures as he shall judge necessary and expedient … .” Art. II, §3. Thus, he may initiate and influence legislative proposals.27 Moreover, after a bill has passed both Houses of Congress, but “before it become[s] a Law,” it must be presented to the President. If he approves it, “he shall sign it, but if not he shall return it, with his Objections to that House in which it shall have originated, who shall enter the Objections at large on their Journal, and proceed to reconsider it.” Art. I, §7, cl. 2.28 His “return” of a bill, which is usually described as a “veto,” 29 is subject to being overridden by a two-thirds vote in each House.
There are important differences between the President’s “return” of a bill pursuant to Article I, §7, and the exercise of the President’s cancellation authority pursuant to the Line Item Veto Act. The constitutional return takes place before the bill becomes law; the statutory cancellation occurs after the bill becomes law. The constitutional return is of the entire bill; the statutory cancellation is of only a part. Although the Constitution expressly authorizes the President to play a role in the process of enacting statutes, it is silent on the subject of unilateral Presidential action that either repeals or amends parts of duly enacted statutes.
There are powerful reasons for construing constitutional silence on this profoundly important issue as equivalent to an express prohibition. The procedures governing the enactment of statutes set forth in the text of Article I were the product of the great debates and compromises that produced the Constitution itself. Familiar historical materials provide abundant support for the conclusion that the power to enact statutes may only “be exercised in accord with a single, finely wrought and exhaustively considered, procedure.” Chadha, 462 U.S., at 951. Our first President understood the text of the Presentment Clause as requiring that he either “approve all the parts of a Bill, or reject it in toto.” 30 What has emerged in these cases from the President’s exercise of his statutory cancellation powers, however, are truncated versions of two bills that passed both Houses of Congress. They are not the product of the “finely wrought” procedure that the Framers designed.
At oral argument, the Government suggested that the cancellations at issue in these cases do not effect a “repeal” of the canceled items because under the special “lockbox” provisions of the Act,31 a canceled item “retain[s] real, legal budgetary effect” insofar as it prevents Congress and the President from spending the savings that result from the cancellation. Tr. of Oral Arg. 10.32 The text of the Act expressly provides, however, that a cancellation prevents a direct spending or tax benefit provision “from having legal force or effect.” 2 U.S.C. § 691e(4)(B)—(C). That a canceled item may have “real, legal budgetary effect” as a result of the lockbox procedure does not change the fact that by canceling the items at issue in these cases, the President made them entirely inoperative as to appellees. Section 968 of the Taxpayer Relief Act no longer provides a tax benefit, and §4722(c) of the Balanced Budget Act of 1997 no longer relieves New York of its contingent liability.33 Such significant changes do not lose their character simply because the canceled provisions may have some continuing financial effect on the Government.34 The cancellation of one section of a statute may be the functional equivalent of a partial repeal even if a portion of the section is not canceled.
V
The Government advances two related arguments to support its position that despite the unambiguous provisions of the Act, cancellations do not amend or repeal properly enacted statutes in violation of the Presentment Clause. First, relying primarily on Field v. Clark, 143 U.S. 649 (1892), the Government contends that the cancellations were merely exercises of discretionary authority granted to the President by the Balanced Budget Act and the Taxpayer Relief Act read in light of the previously enacted Line Item Veto Act. Second, the Government submits that the substance of the authority to cancel tax and spending items “is, in practical effect, no more and no less than the power to ‘decline to spend’ specified sums of money, or to ‘decline to implement’ specified tax measures.” Brief for Appellants 40. Neither argument is
persuasive.
In Field v. Clark, the Court upheld the constitutionality of the Tariff Act of 1890. Act of Oct. 1, 1890, 26 Stat. 567. That statute contained a “free list” of almost 300 specific articles that were exempted from import duties “unless otherwise specially provided for in this act.” 26 Stat. 602. Section 3 was a special provision that directed the President to suspend that exemption for sugar, molasses, coffee, tea, and hides “whenever, and so often” as he should be satisfied that any country producing and exporting those products imposed duties on the agricultural products of the United States that he deemed to be “reciprocally unequal and unreasonable… .” 26 Stat. 612, quoted in Field, 143 U.S., at 680. The section then specified the duties to be imposed on those products during any such suspension. The Court provided this explanation for its conclusion that §3 had not delegated legislative power to the President:
“Nothing involving the expediency or the just operation of such legislation was left to the determination of the President… . [W]hen he ascertained the fact that duties and exactions, reciprocally unequal and unreasonable, were imposed upon the agricultural or other products of the United States by a country producing and exporting sugar, molasses, coffee, tea or hides, it became his duty to issue a proclamation declaring the suspension, as to that country, which Congress had determined should occur. He had no discretion in the premises except in respect to the duration of the suspension so ordered. But that related only to the enforcement of the policy established by Congress. As the suspension was absolutely required when the President ascertained the existence of a particular fact, it cannot be said that in ascertaining that fact and in issuing his proclamation, in obedience to the legislative will, he exercised the function of making laws… . It was a part of the law itself as it left the hands of Congress that the provisions, full and complete in themselves, permitting the free introduction of sugars, molasses, coffee, tea and hides, from particular countries, should be suspended, in a given contingency, and that in case of such suspensions certain duties should be imposed.” Id., at 693.
This passage identifies three critical differences between the power to suspend the exemption from import duties and the power to cancel portions of a duly enacted statute. First, the exercise of the suspension power was contingent upon a condition that did not exist when the Tariff Act was passed: the imposition of “reciprocally unequal and unreasonable” import duties by other countries. In contrast, the exercise of the cancellation power within five days after the enactment of the Balanced Budget and Tax Reform Acts necessarily was based on the same conditions that Congress evaluated when it passed those statutes. Second, under the Tariff Act, when the President determined that the contingency had arisen, he had a duty to suspend; in contrast, while it is true that the President was required by the Act to make three determinations before he canceled a provision, see 2 U.S.C. § 691(a)(A) (1994 ed., Supp. II), those determinations did not qualify his discretion to cancel or not to cancel. Finally, whenever the President suspended an exemption under the Tariff Act, he was executing the policy that Congress had embodied in the statute. In contrast, whenever the President cancels an item of new direct spending or a limited tax benefit he is rejecting the policy judgment made by Congress and relying on his own policy judgment.35 Thus, the conclusion in Field v. Clark that the suspensions mandated by the Tariff Act were not exercises of legislative power does not undermine our opinion that cancellations pursuant to the Line Item Veto Act are the functional equivalent of partial repeals of Acts of Congress that fail to satisfy Article I, §7.
The Government’s reliance upon other tariff and import statutes, discussed in Field, that contain provisions similar to the one challenged in Field is unavailing for the same reasons.36 Some of those statutes authorized the President to “suspen[d] and discontinu[e]” statutory duties upon his determination that discriminatory duties imposed by other nations had been abolished. See 143 U.S., at 686—687 (discussing Act of Jan. 7, 1824, ch. 4, §4, 4 Stat. 3, and Act of May 24, 1828, ch. 111, 4 Stat. 308).37 A slightly different statute, Act of May 31, 1830, ch. 219, §2, 4 Stat. 425, provided that certain statutory provisions imposing duties on foreign ships “shall be repealed” upon the same no-discrimination determination by the President. See 143 U.S., at 687; see also id., at 686 (discussing similar tariff statute, Act of Mar. 3, 1815, ch. 77, 3 Stat. 224, which provided that duties “are hereby repealed,” “[s]uch repeal to take effect … whenever the President” makes the required determination).
The cited statutes all relate to foreign trade, and this Court has recognized that in the foreign affairs arena, the President has “a degree of discretion and freedom from statutory restriction which would not be admissible were domestic affairs alone involved.” United States v. Curtiss-Wright Export Corp., 299 U.S. 304, 320 (1936). “Moreover, he, not Congress, has the better opportunity of knowing the conditions which prevail in foreign countries.” Ibid.38 More important, when enacting the statutes discussed in Field, Congress itself made the decision to suspend or repeal the particular provisions at issue upon the occurrence of particular events subsequent to enactment, and it left only the determination of whether such events occurred up to the President.39 The Line Item Veto Act authorizes the President himself to effect the repeal of laws, for his own policy reasons, without observing the procedures set out in Article I, §7. The fact that Congress intended such a result is of no moment. Although Congress presumably anticipated that the President might cancel some of the items in the Balanced Budget Act and in the Taxpayer Relief Act, Congress cannot alter the procedures set out in Article I, §7, without amending the Constitution.40
Neither are we persuaded by the Government’s contention that the President’s authority to cancel new direct spending and tax benefit items is no greater than his traditional authority to decline to spend appropriated funds. The Government has reviewed in some detail the series of statutes in which Congress has given the Executive broad discretion over the expenditure of appropriated funds. For example, the First Congress appropriated “sum[s] not exceeding” specified amounts to be spent on various Government operations. See, e.g., Act of Sept. 29, 1789, ch. 23, §1, 1 Stat. 95; Act of Mar. 26, 1790, ch. 4, §1, 1 Stat. 104; Act of Feb. 11, 1791, ch. 6, 1 Stat. 190. In those statutes, as in later years, the President was given wide discretion with respect to both the amounts to be spent and how the money would be allocated among different functions. It is argued that the Line Item Veto Act merely confers comparable discretionary authority over the expenditure of appropriated funds. The critical difference between this statute and all of its predecessors, however, is that unlike any of them, this Act gives the President the unilateral power to change the text of duly enacted statutes. None of the Act’s predecessors could even arguably have been construed to authorize such a change.
VI
Although they are implicit in what we have already written, the profound importance of these cases makes it appropriate to emphasize three points.
First, we express no opinion about the wisdom of the procedures authorized by the Line Item Veto Act. Many members of both major political parties who have served in the Legislative and the Executive Branches have long advocated the enactment of such procedures for the purpose of “ensur[ing] greater fiscal accountability in Washington.” H. R. Conf. Rep. 104—491, p. 15 (1996).41 The text of the Act was itself the product of much debate and deliberation in both Houses of Congress and that precise text was signed into law by the President. We do not lightly conclude that their action was unauthorized by the Constitution.42 We have, however, twice had full argument and briefing on the question and have concluded that our duty is clear.
Second, although appellees challenge the validity of the Act on alternative grounds, the only issue we address concerns the “finely wrought” procedure commanded by the Constitution. Chadha, 462 U.S., at 951. We have been favored with extensive debate about the scope of Congress’ power to delegate law-making authority, or its functional equivalent, to the President. The excellent briefs filed by the parties and their amici curiae have provided us with valuable historical information that illuminates the delegation issue but does not really bear on the narrow issue that is dispositive of these cases. Thus, because we conclude that the Act’s cancellation provisions violate Article I, §7, of the Constitution, we find it unnecessary to consider the District Court’s alternative holding that the Act “impermissibly disrupts the balance of powers among the three branches of government.” 985 F. Supp., at 179.43
Third, our decision rests on the narrow ground that the procedures authorized by the Line Item Veto Act are not authorized by the Constitution. The Balanced Budget Act of 1997 is a 500-page document that became “Public Law 105—33” after three procedural steps were taken: (1) a bill containing its exact text was approved by a majority of the Members of the House of Representatives; (2) the Senate approved precisely the same text; and (3) that text was signed into law by the President. The Constitution explicitly requires that each of those three steps be taken before a bill may “become a law.” Art. I, §7. If one paragraph of that text had been omitted at any one of those three stages, Public Law 105—33 would not have been validly enacted. If the Line Item Veto Act were valid, it would authorize the President to create a different law–one whose text was not voted on by either House of Congress or presented to the President for signature. Something that might be known as “Public Law 105—33 as modified by the President” may or may not be desirable, but it is surely not a document that may “become a law” pursuant to the procedures designed by the Framers of Article I, §7, of the Constitution.
If there is to be a new procedure in which the President will play a different role in determining the final text of what may “become a law,” such change must come not by legislation but through the amendment procedures set forth in Article V of the Constitution. Cf. U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779, 837 (1995).
The judgment of the District Court is affirmed.
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Part 2 of 4
Notes
1. Medicaid Voluntary Contribution and Provider-Specific Tax Amendments of 1991, Pub. L. 102—234, 105 Stat. 1793, 42 U.S.C. § 1396b(w).
2. Section 4722(c) provides: “(c) WAIVER OF CERTAIN PROVIDER TAX PROVISIONS.–Notwithstanding any other provision of law, taxes, fees, or assessments, as defined in section 1903(w)(3)(A) of the Social Security Act (42 U.S.C. 1396b(w)(3)(A)), that were collected by the State of New York from a health care provider before June 1, 1997, and for which a waiver of the provisions of subparagraph (B) or (C) of section 1903(w)(3) of such Act has been applied for, or that would, but for this subsection require that such a waiver be applied for, in accordance with subparagraph (E) of such section, and, (if so applied for) upon which action by the Secretary of Health and Human Services (including any judicial review of any such proceeding) has not been completed as of July 23, 1997, are deemed to be permissible health care related taxes and in compliance with the requirements of subparagraphs (B) and (C) of section 1903(w)(3) of such Act.” 111 Stat. 515.
3. App. to Juris. Statement 63a—64a (Cancellation No. 97—3). The quoted text is an excerpt from the statement of reasons for the cancellation, which is required by the Line Item Veto Act. See 2 U.S.C. § 691a (1994 ed., Supp. II).
4. Section 968 of the Taxpayer Relief Act of 1997 amended 26 U.S.C. § 1042 by adding a new subsection (g), which defined the sellers eligible for the exemption as follows: “(2) QUALIFIED REFINER OR PROCESSOR.–For purposes of this subsection, the term ‘qualified refiner or processor’ means a domestic corporation– “(A) substantially all of the activities of which consist of the active conduct of the trade or business of refining or processing agricultural or horticultural products, and “(B) which, during the 1-year period ending on the date of the sale, purchases more than one-half of such products to be refined or processed from– “(i) farmers who make up the eligible farmers’ cooperative which is purchasing stock in the corporation in a transaction to which this subsection is to apply, or “(ii) such cooperative.” 111 Stat. 896.
5. H. R. Rep. No. 105—148, p. 420 (1997); see also 141 Cong. Rec. S18739 (Dec. 15, 1995) (Senator Hatch, introducing a previous version of the bill, stating that it “would provide farmers who form farmers cooperatives the opportunity for an ownership interest in the processing and marketing of their products”); ibid. (Senator Craig, cosponsor of a previous bill, stating that “[c]urrently, farmers cannot compete with other business entities … in buying such [processing] businesses because of the advantages inherent in the tax deferrals available in transactions with these other purchases”; bill “would be helpful to farmers cooperatives”); App. 116—117 (Letter from Congresspersons Roberts and Stenholm (Dec. 1, 1995)) (congressional sponsors stating that a previous version of the bill was intended to “provide American farmers a more firm economic footing and more control over their economic destiny. We believe this proposal will help farmers, through their cooperatives, purchase facilities to refine and process their raw commodities into value-added products. … It will encourage farmers to help themselves in a more market-oriented environment by vertically integrating. If this legislation is passed, we are confident that, 10 years from now, we will look on this bill as one of the most beneficial actions Congress took for U.S. farmers”).
6. §1701, 111 Stat. 1101.
7. App. to Juris. Statement 71a (Cancellation No. 97—2). On the day the President canceled §968, he stated: “Because I strongly support family farmers, farm cooperatives, and the acquisition of production facilities by co-ops, this was a very difficult decision for me.” App. 125. He added that creating incentives so that farmers’ cooperatives can obtain processing facilities is a “very worthy goal.” Id., at 130.
8. App. to Juris. Statement 71a (Cancellation No. 97—2). Section 968 was one of the two limited tax benefits in the Taxpayer Relief Act of 1997 that the President canceled.
9. In both actions, the plaintiffs sought a declaratory judgment that the Line Item Veto Act is unconstitutional and that the particular cancellation was invalid; neither set of plaintiffs sought injunctive relief against the President.
10. See, e.g., N. Y. Pub. Health Law §2807—c(18)(e) (Supp. 1997—1998) (“In the event the secretary of the department of health and human services determines that the assessments do not … qualify based on any such exclusion, then the exclusion shall be deemed to have been null and void … and the commissioner shall collect any retroactive amount due as a result … . Interest and penalties shall be measured from the due date of ninety days following notice from the commissioner”); §2807—d(12) (1993) (same); §2807—j(11) (Supp. 1997—1998) (same); §2807—s(8) (same).
11. As the District Court explained: “These laws reflected the best judgment of both Houses. The laws that resulted after the President’s line item veto were different from those consented to by both Houses of Congress. There is no way of knowing whether these laws, in their truncated form, would have received the requisite support from both the House and the Senate. Because the laws that emerged after the Line Item Veto are not the same laws that proceeded through the legislative process, as required, the resulting laws are not valid.” 985 F. Supp., at 178—179.
12. “Unilateral action by any single participant in the law-making process is precisely what the Bicameralism and Presentment Clauses were designed to prevent. Once a bill becomes law, it can only be repealed or amended through another, independent legislative enactment, which itself must conform with the requirements of Article I. Any rescissions must be agreed upon by a majority of both Houses of Congress. The President cannot single-handedly revise the work of the other two participants in the lawmaking process, as he did here when he vetoed certain provisions of these statutes.” Ibid.
13. Although in ordinary usage both “individual” and “person” often refer to an individual human being, see, e.g., Webster’s Third New International Dictionary 1152, 1686 (1986) (“individual” defined as a “single human being”; “person” defined as “an individual human being”), “person” often has a broader meaning in the law, see, e.g., 1 U.S.C. § 1 (“person” includes “corporations, companies, associations, firms, partnerships, societies, and joint stock companies, as well as individuals”).
14. Justice Scalia objects to our conclusion that the Government’s reading of the statute would produce an absurd result. Post, at 2—3. Nonetheless, he states that “ ‘the case is of such imperative public importance as to justify deviation from normal appellate practice and to require immediate determination in this Court.’ ” Post, at 3—4 (quoting this Court’s Rule 11). Unlike Justice Scalia, however, we need not rely on our own sense of the importance of the issue involved; instead, the structure of §692 makes it clear that Congress believed the issue warranted expedited review and, therefore, that Congress did not
intend the result that the word “individual” would dictate in other contexts.
15. To meet the standing requirements of Article III, “[a] plaintiff must allege personal injury fairly traceable to the defendant’s allegedly unlawful conduct and likely to be redressed by the requested relief.” Allen v. Wright, 468 U.S. 737, 751 (1984).
16. Because the cancellation of the legislative equivalent of a favorable final judgment causes immediate injury, the Government’s reliance on Anderson v. Green, 513 U.S. 557 (1995) (per curiam), is misplaced. That case involved a challenge to a California statute that would have imposed limits on welfare payments to new residents during their first year of residence in California. The statute could not become effective without a waiver from HHS. Although such a waiver had been in effect when the action was filed, it had been vacated in a separate proceeding and HHS had not sought review of that judgment. Accordingly, at the time the Anderson case reached this Court, the plaintiffs were receiving the same benefits as long term residents; they had suffered no injury. We held that the case was not ripe because, unless and until HHS issued a new waiver, any future injury was purely conjectural. 513 U.S., at 559 (“The parties [i.e. the plaintiffs and California, but not HHS] have no live dispute now, and whether one will arise in the future is conjectural”). Unlike New York in this case, they were not contingently liable for anything.
17. App. 106—107.
18. See n. 10, supra.
19. The Government relies on Warth v. Seldin, 422 U.S. 490 (1975), to support its argument that the State, and not appellees, should be bringing this claim. In Warth we held, inter alia, that citizens of Rochester did not have standing to challenge the exclusionary zoning practices of another community because their claimed injury of increased taxation turned on the prospective actions of Rochester officials. Id., at 509. Appellees’ injury in this case, however, does not turn on the independent actions of third parties, as existing New York law will automatically require that appellees reimburse the State. Because both the City of New York and the health care appellees have standing, we need not consider whether the appellee unions also have standing to sue. See, e.g., Bowsher v. Synar, 478 U.S. 714, 721 (1986).
20. See n. 5, supra.
21. App. 111—115 (Declaration of Mike Cranney).
22. The Government argues that there can be an Article III injury only if Snake River would have actually obtained a facility on favorable terms. We have held, however, that a denial of a benefit in the bargaining process can itself create an Article III injury, irrespective of the end result. See Northeastern Fla. Chapter, Associated Gen. Contractors of America v. Jacksonville, 508 U.S. 656, 666 (1993). In that case an association of contractors challenged a city ordinance that accorded preferential treatment to certain minority-owned businesses in the award of city contracts. The Court of Appeals had held that the association lacked standing “because it failed to allege that one or more of its members would have been awarded a contract but for the challenged ordinance.” Id., at 664. We rejected the Court of Appeals’ position, stating that it “cannot be reconciled with our precedents.” Ibid. Even though the preference applied to only a small percentage of the city’s business, and even though there was no showing that any party would have received a contract absent the ordinance, we held that the prospective bidders had standing; the “injury in fact” was the harm to the contractors in the negotiation process, “not the ultimate inability to obtain the benefit.” Id., at 666. Having found that both the New York and Snake River appellees are actually injured, traceability and redressability are easily satisfied–each injury is traceable to the President’s cancellation of §4722(c) or §968, and would be redressed by a declaratory judgment that the cancellations are invalid.
23. Allen v. Wright, 468 U.S. 737 (1984), and Simon v. Eastern Ky. Welfare Rights Organization, 426 U.S. 26 (1976), are distinguishable, as each of those cases involved a speculative chain of causation quite different from the situation here. In Allen, parents of black public school children alleged that, even though it was the policy of the Internal Revenue Service (IRS) to deny tax-exempt status to racially discriminatory schools, the IRS had “not adopted sufficient standards and procedures” to enforce this policy. Allen, 468 U.S., at 739. The parents alleged that the lax enforcement caused white students to attend discriminatory private schools and, therefore, interfered with their children’s opportunity to attend desegregated public schools. We held that the chain of causation between the challenged action and the alleged injury was too attenuated to confer standing: “It is, first, uncertain how many racially discriminatory private schools are in fact receiving tax exemptions. Moreover, it is entirely speculative … whether withdrawal of a tax exemption from any particular school would lead the school to change its policies… . It is just as speculative whether any given parent of a child attending such a private school would decide to transfer the child to public school as a result of any changes in educational or financial policy made by the private school once it was threatened with loss of tax-exempt status. It is also pure speculation whether, in a particular community, a large enough number of the numerous relevant school officials and parents would reach decisions that collectively would have a significant impact on the racial composition of the public schools.” Id., at 758 (footnote omitted). Similarly, in Simon, the respondents challenged an IRS Revenue Ruling that granted favorable tax treatment to nonprofit hospitals that offered only emergency-room services to the poor. The respondents argued that the Revenue Ruling “ ‘encouraged’ hospitals to deny services to indigents.” Simon, 426 U.S., at 42. As in Allen, we held that the chain of causation was too attenuated: “It is purely speculative whether the denials of service … fairly can be traced to [the IRS’s] ‘encouragement’ or instead result from decisions made by the hospitals without regard to the tax implications. “It is equally speculative whether the desired exercise of the court’s remedial powers in this suit would result in the availability to respondents of such services. So far as the complaint sheds light, it is just as plausible that the hospitals to which respondents may apply for service would elect to forgo favorable tax treatment to avoid the undetermined financial drain of an increase in the level of uncompensated services.” 426 U.S., at 42—43. See also id., at 45 (“Speculative inferences are necessary to connect [respondents’] injury to the challenged actions of petitioners”). The injury in the present case is comparable to the repeal of a law granting a subsidy to sellers of processing plants if, and only if, they sell to farmers’ cooperatives. Every farmers’ cooperative seeking to buy a processing plant is harmed by that repeal.
24. Congress failed to act upon proposed legislation to disapprove these cancellations. See S. 1157, H. R. 2444, S. 1144, and H. R. 2436, 105th Cong., 1st Sess. (1997). Indeed, despite the fact that the President has canceled at least 82 items since the Act was passed, see Statement of June E. O’Neill, Director, Congressional Budget Office, Line Item Veto Act After One Year, The Process and Its Implementation, before the Subcommittee on Legislative and Budget Process of the House Committee on Rules, 105th Cong., 2d Sess. (Mar. 11—12, 1998), Congress has enacted only one law, over a Presidential veto, disapproving any cancellation, see Pub. L. 105—159, 112 Stat. 19 (1998) (disapproving the cancellation of 38 military construction spending items).
25. See n. 29, infra.
26. The term “cancel,” used in connection with any dollar amount of discretionary budget authority, means “to rescind.” 2 U.S.C. § 691e(4)(A). The entire definition reads as follows: “The term ‘cancel’ or ‘cancellation’ means– “(A) with respect to any dollar amount of discretionary budget authority, to rescind; “(B) with respect to any item of new direct spending– “(i) that is budget authority provided by law (other than an appropriation law), to prevent such budget authority from having legal force or effect; “(ii) that is entitlement authority, to prevent the specific legal obligation of the United States from having legal force or effect; or “(iii) through the food stamp program, to prevent the specific provision of law that results in an increase in budget authority or outlays for that program from having legal force or effect; and “(C) with respect to a limited tax benefit, to prevent the specific provision of law that provides such benefit from having legal force or effect.” 2 U.S.C. § 691e(4) (1994 ed., Supp. II).
27. See 3 J. Story, Commentaries on the Constitution of the United States §1555, p. 413 (1833) (Art. II, §3, enables the President “to point out the evil, and to suggest the remedy”).
28. The full text of the relevant paragraph of §7 provides: “Every Bill which shall have passed the House of Representatives and the Senate, shall, before it become a Law, be presented to the President of the United States; If he approve he shall sign it, but if not he shall return it, with his Objections to that House in which it shall have originated, who shall enter the Objections at large on their Journal, and proceed to reconsider it. If after such Reconsideration two thirds of that House shall agree to pass the Bill, it shall be sent, together with the Objections, to the other House, by which it shall likewise be reconsidered, and if approved by two thirds of that House, it shall become a Law. But in all such Cases the Votes of both Houses shall be determined by Yeas and Nays, and the Names of the Persons voting for and against the Bill shall be entered on the Journal of each House respectively. If any Bill shall not be returned by the President within ten Days (Sundays excepted) after it shall have been presented to him, the Same shall be a Law, in like Manner as if he had signed it, unless the Congress by their Adjournment prevent its Return, in which Case it shall not be a Law.”
29. “In constitutional terms, ‘veto’ is used to describe the President’s power under Art. I, §7, of the Constitution.” INS v. Chadha, 462 U.S. 919, 925, n. 2 (1983) (citing Black’s Law Dictionary 1403 (5th ed. 1979)).
30. 33 Writings of George Washington 96 (J. Fitzpatrick ed., 1940); see also W. Taft, The Presidency: Its Duties, Its Powers, Its Opportunities and Its Limitations 11 (1916) (stating that the President “has no power to veto part of a bill and let the rest become a law”); cf. 1 W. Blackstone, Commentaries *154 (“The crown cannot begin of itself any alterations in the present established law; but it may approve or disapprove of the alterations suggested and consented to by the two houses”).
31. The lockbox procedure ensures that savings resulting from cancellations are used to reduce the deficit, rather than to offset deficit increases arising from other laws. See 2 U.S.C. § 691c(a)—(b); see also H. R. Conf. Rep. No. 104—491, pp. 23—24 (1996). The Office of Management and Budget (OMB) estimates the deficit reduction resulting from each cancellation of new direct spending or limited tax benefit items and presents its estimate as a separate entry in the “pay-as-you-go” report submitted to Congress pursuant to §252(d) of the Balanced Budget and Emergency Deficit Control Act of 1985 (or “Gramm-Rudman-Hollings Act”), 2 U.S.C. § 902(d). See §691c(a)(2)(A) (1994 ed., Supp. II); see also H. R. Conf. Rep. No. 104—491, at 23. The “pay-as-you-go” requirement acts as a self-imposed limitation on Congress’ ability to increase spending and/or reduce revenue: if spending increases are not offset by revenue increases (or if revenue reductions are not offset by spending reductions), then a “sequester” of the excess budgeted funds is required. See 2 U.S.C. § 900(b), 901(a)(1), 902(b), 906(l). OMB does not include the estimated savings resulting from a cancellation in the report it must submit under §§252(b) and 254 of the Balanced Budget and Emergency Deficit Control Act of 1985, 2 U.S.C. § 902(b), 904. See §691c(a)(2)(B). By providing in this way that such savings “shall not be included in the pay-as-you-go balances,” Congress ensures that “savings from the cancellation of new direct spending or limited tax benefits are devoted to deficit reduction and are not available to offset a deficit increase in another law.” H. R. Conf. Rep. No. 104—491, at 23. Thus, the “pay-as-you-go” cap does not change upon cancellation because the canceled item is not treated as canceled. Moreover, if Congress enacts a disapproval bill, “OMB will not score this legislation as increasing the deficit under pay as you go.” Ibid.
32. The Snake River appellees have argued that the lockbox provisions have no such effect with respect to the canceled tax benefits at issue. Because we reject the Government’s suggestion that the lockbox provisions alter our constitutional analysis, however, we find it unnecessary to resolve the dispute over the details of the lockbox procedure’s applicability.
33. Thus, although “Congress’s use of infelicitous terminology cannot transform the cancellation into an unconstitutional amendment or repeal of an enacted law,” Brief for Appellants 40—41 (citations omitted), the actual effect of a cancellation is entirely consistent with the language of the Act.
34. Moreover, Congress always retains the option of statutorily amending or repealing the lockbox provisions and/or the Gramm-Rudman-Hollings Act, so as to eliminate any lingering financial effect of canceled items.
35. For example, one reason that the President gave for canceling §968 of the Taxpayer Relief Act was his conclusion that “this provision failed to target its benefits to small-and-medium size cooperatives.” App. to Juris. Statement 71a (Cancellation No. 97—2); see n. 8, supra. Because the Line Item Veto Act requires the President to act within five days, every exercise of the cancellation power will necessarily be based on the same facts and circumstances that Congress considered, and therefore constitute a rejection of the policy choice made by Congress.
36. The Court did not, of course, expressly consider in Field whether those statutes comported with the requirements of the Presentment Clause.
37. Cf. 143 U.S., at 688 (discussing Act of Mar. 6, 1866, ch. 12, §2, 14 Stat. 4, which permitted the President to “declare the provisions of this act to be inoperative” and lift import restrictions on foreign cattle and hides upon a showing that such importation would not endanger U.S. cattle).
38. Indeed, the Court in Field v. Clark, 143 U.S. 649 (1892), so limited its reasoning: “in the judgment of the legislative branch of the government, it is often desirable, if not essential for the protection of the interests of our people, against the unfriendly or discriminating regulations established by foreign governments, … to invest the President with large discretion in matters arising out of the execution of statutes relating to trade and commerce with other nations.” Id., at 691.
39. See also J. W. Hampton, Jr., & Co. v. United States, 276 U.S. 394, 407 (1928) (“Congress may feel itself unable conveniently to determine exactly when its exercise of the legislative power should become effective, because dependent on future conditions, and it may leave the determination of such time to the decision of an Executive”).
40. The Government argues that the Rules Enabling Act, 28 U.S.C. § 2072(b), permits this Court to “repeal” prior laws without violating Article I, §7. Section 2072(b) provides that this Court may promulgate rules of procedure for the lower federal courts and that “[a]ll laws in conflict with such rules shall be of no further force or effect after such rules have taken effect.” See Sibbach v. Wilson & Co., 312 U.S. 1, 10 (1941) (stating that the procedural rules that this Court promulgates, “if they are within the authority granted by Congress, repeal” a prior inconsistent procedural statute); see also Henderson v. United States, 517 U.S. 654, 664 (1996) (citing §2072(b)). In enacting §2072(b), however, Congress expressly provided that laws inconsistent with the procedural rules promulgated by this Court would automatically be repealed upon the enactment of new rules in order to create a uniform system of rules for Article III courts. As in the tariff statutes, Congress itself made the decision to repeal prior rules upon the occurrence of a particular event–here, the promulgation of procedural rules by this Court.
41. Cf. Taft, The Presidency, supra n. 30, at 21 (“A President with the power to veto items in appropriation bills might exercise a good restraining influence in cutting down the total annual expenses of the government. But this is not the right way”).
42. See Bowsher, 478 U.S., at 736 (Stevens, J., concurring in judgment) (“When this Court is asked to invalidate a statutory provision that has been approved by both Houses of the Congress and signed by the President, particularly an Act of Congress that confronts a deeply vexing national problem, it should only do so for the most compelling constitutional reasons”).
43. We also find it unnecessary to consider whether the provisions of the Act relating to discretionary budget authority are severable from the Act’s tax benefit and direct spending provisions. We note, however, that the Act contains no severability clause; a severability provision that had appeared in the Senate bill was dropped in conference without explanation. H. R. Conf. Rep. No. 104—491, at 17, 41.
***
Kennedy, J., concurring
SUPREME COURT OF THE UNITED STATES
No. 97—1374
WILLIAM J. CLINTON, PRESIDENT OF THE UNITED
STATES, et al., APPELLANTS v. CITY OF
NEW YORK et al.
ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
[June 25, 1998]
Justice Kennedy, concurring.
A nation cannot plunder its own treasury without putting its Constitution and its survival in peril. The statute before us, then, is of first importance, for it seems undeniable the Act will tend to restrain persistent excessive spending. Nevertheless, for the reasons given by Justice Stevens in the opinion for the Court, the statute must be found invalid. Failure of political will does not justify unconstitutional remedies.
I write to respond to my colleague Justice Breyer, who observes that the statute does not threaten the liberties of individual citizens, a point on which I disagree. See post, at 29. The argument is related to his earlier suggestion that our role is lessened here because the two political branches are adjusting their own powers between themselves. Post, at 4, 14—15. To say the political branches have a somewhat free hand to reallocate their own authority would seem to require acceptance of two premises: first, that the public good demands it, and second, that liberty is not at risk. The former premise is inadmissible. The Constitution’s structure requires a stability which transcends the convenience of the moment. See Metropolitan Washington Airports Authority v. Citizens for Abatement of Aircraft Noise, Inc., 501 U.S. 252, 276—277 (1991); Bowsher v. Synar, 478 U.S. 714, 736 (1986); INS v. Chadha, 462 U.S. 919, 944—945, 958—959 (1983); Northern Pipeline Constr. Co. v. Marathon Pipe Line Co., 458 U.S. 50, 73—74 (1982). The latter premise, too, is flawed. Liberty is always at stake when one or more of the branches seek to transgress the separation of powers.
Separation of powers was designed to implement a fundamental insight: concentration of power in the hands of a single branch is a threat to liberty. The Federalist states the axiom in these explicit terms: “The accumulation of all powers, legislative, executive, and judiciary, in the same hands … may justly be pronounced the very definition of tyranny.” The Federalist No. 47, p. 301 (C. Rossiter ed., 1961). So convinced were the Framers that liberty of the person inheres in structure that at first they did not consider a Bill of Rights necessary. The Federalist No. 84, pp. 513, 515; G. Wood, The Creation of the American Republic 1776—1787, pp. 536—543 (1969). It was at Madison’s insistence that the First Congress enacted the Bill of Rights. R. Goldwin, From Parchment to Power 75—153 (1997). It would be a grave mistake, however, to think a Bill of Rights in Madison’s scheme then or in sound constitutional theory now renders separation of powers of lesser importance. See Amar, The Bill of Rights as a Constitution, 100 Yale L. J. 1131, 1132 (1991).
In recent years, perhaps, we have come to think of liberty as defined by that word in the Fifth and Fourteenth Amendments and as illuminated by the other provisions of the Bill of Rights. The conception of liberty embraced by the Framers was not so confined. They used the principles of separation of powers and federalism to secure liberty in the fundamental political sense of the term, quite in addition to the idea of freedom from intrusive governmental acts. The idea and the promise were that when the people delegate some degree of control to a remote central authority, one branch of government ought not possess the power to shape their destiny without a sufficient check from the other two. In this vision, liberty demands limits on the ability of any one branch to influence basic political decisions. Quoting Montesquieu, the Federalist Papers made the point in the following manner:
“ ‘When the legislative and executive powers are united in the same person or body,’ says he, ‘there can be no liberty, because apprehensions may arise lest the same monarch or senate should enact tyrannical laws to execute them in a tyrannical manner.’ Again: ‘Were the power of judging joined with the legislative, the life and liberty of the subject would be exposed to arbitrary control, for the judge would then be the legislator. Were it joined to the executive power, the judge might behave with all the violence of an oppressor.’ ” The Federalist No. 47, supra, at 303.
It follows that if a citizen who is taxed has the measure of the tax or the decision to spend determined by the Executive alone, without adequate control by the citizen’s Representatives in Congress, liberty is threatened. Money is the instrument of policy and policy affects the lives of citizens. The individual loses liberty in a real sense if that instrument is not subject to traditional constitutional constraints.
The principal object of the statute, it is true, was not to enhance the President’s power to reward one group and punish another, to help one set of taxpayers and hurt another, to favor one State and ignore another. Yet these are its undeniable effects. The law establishes a new mechanism which gives the President the sole ability to hurt a group that is a visible target, in order to disfavor the group or to extract further concessions from Congress. The law is the functional equivalent of a line item veto and enhances the President’s powers beyond what the Framers would have endorsed.
It is no answer, of course, to say that Congress surrendered its authority by its own hand; nor does it suffice to point out that a new statute, signed by the President or enacted over his veto, could restore to Congress the power it now seeks to relinquish. That a congressional cession of power is voluntary does not make it innocuous. The Constitution is a compact enduring for more than our time, and one Congress cannot yield up its own powers, much less those of other Congresses to follow. See Freytag v. Commissioner, 501 U.S. 868, 880 (1991); cf. Chadha, supra, at 942, n. 13. Abdication of responsibility is not part of the constitutional design.
Separation of powers helps to ensure the ability of each branch to be vigorous in asserting its proper authority. In this respect the device operates on a horizontal axis to secure a proper balance of legislative, executive, and judicial authority. Separation of powers operates on a vertical axis as well, between each branch and the citizens in whose interest powers must be exercised. The citizen has a vital interest in the regularity of the exercise of governmental power. If this point was not clear before Chadha, it should have been so afterwards. Though Chadha involved the deportation of a person, while the case before us involves the expenditure of money or the grant of a tax exemption, this circumstance does not mean that the vertical operation of the separation of powers is irrelevant here. By increasing the power of the President beyond what the Framers envisioned, the statute compromises the political liberty of our citizens, liberty which the separation of powers seeks to secure.
The Constitution is not bereft of controls over improvident spending. Federalism is one safeguard, for political accountability is easier to enforce within the States than nationwide. The other principal mechanism, of course, is control of the political branches by an informed and responsible electorate. Whether or not federalism and control by the electorate are adequate for the problem at hand, they are two of the structures the Framers designed for the problem the statute strives to confront. The Framers of the Constitution could not command statesmanship. They could simply provide structures from which it might emerge. The fact that these mechanisms, plus the proper functioning of the separation of powers itself, are not employed, or that they prove insufficient, cannot validate an otherwise unconstitutional device. With these observations, I join the opinion of the Court.
***
Notes
1. Medicaid Voluntary Contribution and Provider-Specific Tax Amendments of 1991, Pub. L. 102—234, 105 Stat. 1793, 42 U.S.C. § 1396b(w).
2. Section 4722(c) provides: “(c) WAIVER OF CERTAIN PROVIDER TAX PROVISIONS.–Notwithstanding any other provision of law, taxes, fees, or assessments, as defined in section 1903(w)(3)(A) of the Social Security Act (42 U.S.C. 1396b(w)(3)(A)), that were collected by the State of New York from a health care provider before June 1, 1997, and for which a waiver of the provisions of subparagraph (B) or (C) of section 1903(w)(3) of such Act has been applied for, or that would, but for this subsection require that such a waiver be applied for, in accordance with subparagraph (E) of such section, and, (if so applied for) upon which action by the Secretary of Health and Human Services (including any judicial review of any such proceeding) has not been completed as of July 23, 1997, are deemed to be permissible health care related taxes and in compliance with the requirements of subparagraphs (B) and (C) of section 1903(w)(3) of such Act.” 111 Stat. 515.
3. App. to Juris. Statement 63a—64a (Cancellation No. 97—3). The quoted text is an excerpt from the statement of reasons for the cancellation, which is required by the Line Item Veto Act. See 2 U.S.C. § 691a (1994 ed., Supp. II).
4. Section 968 of the Taxpayer Relief Act of 1997 amended 26 U.S.C. § 1042 by adding a new subsection (g), which defined the sellers eligible for the exemption as follows: “(2) QUALIFIED REFINER OR PROCESSOR.–For purposes of this subsection, the term ‘qualified refiner or processor’ means a domestic corporation– “(A) substantially all of the activities of which consist of the active conduct of the trade or business of refining or processing agricultural or horticultural products, and “(B) which, during the 1-year period ending on the date of the sale, purchases more than one-half of such products to be refined or processed from– “(i) farmers who make up the eligible farmers’ cooperative which is purchasing stock in the corporation in a transaction to which this subsection is to apply, or “(ii) such cooperative.” 111 Stat. 896.
5. H. R. Rep. No. 105—148, p. 420 (1997); see also 141 Cong. Rec. S18739 (Dec. 15, 1995) (Senator Hatch, introducing a previous version of the bill, stating that it “would provide farmers who form farmers cooperatives the opportunity for an ownership interest in the processing and marketing of their products”); ibid. (Senator Craig, cosponsor of a previous bill, stating that “[c]urrently, farmers cannot compete with other business entities … in buying such [processing] businesses because of the advantages inherent in the tax deferrals available in transactions with these other purchases”; bill “would be helpful to farmers cooperatives”); App. 116—117 (Letter from Congresspersons Roberts and Stenholm (Dec. 1, 1995)) (congressional sponsors stating that a previous version of the bill was intended to “provide American farmers a more firm economic footing and more control over their economic destiny. We believe this proposal will help farmers, through their cooperatives, purchase facilities to refine and process their raw commodities into value-added products. … It will encourage farmers to help themselves in a more market-oriented environment by vertically integrating. If this legislation is passed, we are confident that, 10 years from now, we will look on this bill as one of the most beneficial actions Congress took for U.S. farmers”).
6. §1701, 111 Stat. 1101.
7. App. to Juris. Statement 71a (Cancellation No. 97—2). On the day the President canceled §968, he stated: “Because I strongly support family farmers, farm cooperatives, and the acquisition of production facilities by co-ops, this was a very difficult decision for me.” App. 125. He added that creating incentives so that farmers’ cooperatives can obtain processing facilities is a “very worthy goal.” Id., at 130.
8. App. to Juris. Statement 71a (Cancellation No. 97—2). Section 968 was one of the two limited tax benefits in the Taxpayer Relief Act of 1997 that the President canceled.
9. In both actions, the plaintiffs sought a declaratory judgment that the Line Item Veto Act is unconstitutional and that the particular cancellation was invalid; neither set of plaintiffs sought injunctive relief against the President.
10. See, e.g., N. Y. Pub. Health Law §2807—c(18)(e) (Supp. 1997—1998) (“In the event the secretary of the department of health and human services determines that the assessments do not … qualify based on any such exclusion, then the exclusion shall be deemed to have been null and void … and the commissioner shall collect any retroactive amount due as a result … . Interest and penalties shall be measured from the due date of ninety days following notice from the commissioner”); §2807—d(12) (1993) (same); §2807—j(11) (Supp. 1997—1998) (same); §2807—s(8) (same).
11. As the District Court explained: “These laws reflected the best judgment of both Houses. The laws that resulted after the President’s line item veto were different from those consented to by both Houses of Congress. There is no way of knowing whether these laws, in their truncated form, would have received the requisite support from both the House and the Senate. Because the laws that emerged after the Line Item Veto are not the same laws that proceeded through the legislative process, as required, the resulting laws are not valid.” 985 F. Supp., at 178—179.
12. “Unilateral action by any single participant in the law-making process is precisely what the Bicameralism and Presentment Clauses were designed to prevent. Once a bill becomes law, it can only be repealed or amended through another, independent legislative enactment, which itself must conform with the requirements of Article I. Any rescissions must be agreed upon by a majority of both Houses of Congress. The President cannot single-handedly revise the work of the other two participants in the lawmaking process, as he did here when he vetoed certain provisions of these statutes.” Ibid.
13. Although in ordinary usage both “individual” and “person” often refer to an individual human being, see, e.g., Webster’s Third New International Dictionary 1152, 1686 (1986) (“individual” defined as a “single human being”; “person” defined as “an individual human being”), “person” often has a broader meaning in the law, see, e.g., 1 U.S.C. § 1 (“person” includes “corporations, companies, associations, firms, partnerships, societies, and joint stock companies, as well as individuals”).
14. Justice Scalia objects to our conclusion that the Government’s reading of the statute would produce an absurd result. Post, at 2—3. Nonetheless, he states that “ ‘the case is of such imperative public importance as to justify deviation from normal appellate practice and to require immediate determination in this Court.’ ” Post, at 3—4 (quoting this Court’s Rule 11). Unlike Justice Scalia, however, we need not rely on our own sense of the importance of the issue involved; instead, the structure of §692 makes it clear that Congress believed the issue warranted expedited review and, therefore, that Congress did not
intend the result that the word “individual” would dictate in other contexts.
15. To meet the standing requirements of Article III, “[a] plaintiff must allege personal injury fairly traceable to the defendant’s allegedly unlawful conduct and likely to be redressed by the requested relief.” Allen v. Wright, 468 U.S. 737, 751 (1984).
16. Because the cancellation of the legislative equivalent of a favorable final judgment causes immediate injury, the Government’s reliance on Anderson v. Green, 513 U.S. 557 (1995) (per curiam), is misplaced. That case involved a challenge to a California statute that would have imposed limits on welfare payments to new residents during their first year of residence in California. The statute could not become effective without a waiver from HHS. Although such a waiver had been in effect when the action was filed, it had been vacated in a separate proceeding and HHS had not sought review of that judgment. Accordingly, at the time the Anderson case reached this Court, the plaintiffs were receiving the same benefits as long term residents; they had suffered no injury. We held that the case was not ripe because, unless and until HHS issued a new waiver, any future injury was purely conjectural. 513 U.S., at 559 (“The parties [i.e. the plaintiffs and California, but not HHS] have no live dispute now, and whether one will arise in the future is conjectural”). Unlike New York in this case, they were not contingently liable for anything.
17. App. 106—107.
18. See n. 10, supra.
19. The Government relies on Warth v. Seldin, 422 U.S. 490 (1975), to support its argument that the State, and not appellees, should be bringing this claim. In Warth we held, inter alia, that citizens of Rochester did not have standing to challenge the exclusionary zoning practices of another community because their claimed injury of increased taxation turned on the prospective actions of Rochester officials. Id., at 509. Appellees’ injury in this case, however, does not turn on the independent actions of third parties, as existing New York law will automatically require that appellees reimburse the State. Because both the City of New York and the health care appellees have standing, we need not consider whether the appellee unions also have standing to sue. See, e.g., Bowsher v. Synar, 478 U.S. 714, 721 (1986).
20. See n. 5, supra.
21. App. 111—115 (Declaration of Mike Cranney).
22. The Government argues that there can be an Article III injury only if Snake River would have actually obtained a facility on favorable terms. We have held, however, that a denial of a benefit in the bargaining process can itself create an Article III injury, irrespective of the end result. See Northeastern Fla. Chapter, Associated Gen. Contractors of America v. Jacksonville, 508 U.S. 656, 666 (1993). In that case an association of contractors challenged a city ordinance that accorded preferential treatment to certain minority-owned businesses in the award of city contracts. The Court of Appeals had held that the association lacked standing “because it failed to allege that one or more of its members would have been awarded a contract but for the challenged ordinance.” Id., at 664. We rejected the Court of Appeals’ position, stating that it “cannot be reconciled with our precedents.” Ibid. Even though the preference applied to only a small percentage of the city’s business, and even though there was no showing that any party would have received a contract absent the ordinance, we held that the prospective bidders had standing; the “injury in fact” was the harm to the contractors in the negotiation process, “not the ultimate inability to obtain the benefit.” Id., at 666. Having found that both the New York and Snake River appellees are actually injured, traceability and redressability are easily satisfied–each injury is traceable to the President’s cancellation of §4722(c) or §968, and would be redressed by a declaratory judgment that the cancellations are invalid.
23. Allen v. Wright, 468 U.S. 737 (1984), and Simon v. Eastern Ky. Welfare Rights Organization, 426 U.S. 26 (1976), are distinguishable, as each of those cases involved a speculative chain of causation quite different from the situation here. In Allen, parents of black public school children alleged that, even though it was the policy of the Internal Revenue Service (IRS) to deny tax-exempt status to racially discriminatory schools, the IRS had “not adopted sufficient standards and procedures” to enforce this policy. Allen, 468 U.S., at 739. The parents alleged that the lax enforcement caused white students to attend discriminatory private schools and, therefore, interfered with their children’s opportunity to attend desegregated public schools. We held that the chain of causation between the challenged action and the alleged injury was too attenuated to confer standing: “It is, first, uncertain how many racially discriminatory private schools are in fact receiving tax exemptions. Moreover, it is entirely speculative … whether withdrawal of a tax exemption from any particular school would lead the school to change its policies… . It is just as speculative whether any given parent of a child attending such a private school would decide to transfer the child to public school as a result of any changes in educational or financial policy made by the private school once it was threatened with loss of tax-exempt status. It is also pure speculation whether, in a particular community, a large enough number of the numerous relevant school officials and parents would reach decisions that collectively would have a significant impact on the racial composition of the public schools.” Id., at 758 (footnote omitted). Similarly, in Simon, the respondents challenged an IRS Revenue Ruling that granted favorable tax treatment to nonprofit hospitals that offered only emergency-room services to the poor. The respondents argued that the Revenue Ruling “ ‘encouraged’ hospitals to deny services to indigents.” Simon, 426 U.S., at 42. As in Allen, we held that the chain of causation was too attenuated: “It is purely speculative whether the denials of service … fairly can be traced to [the IRS’s] ‘encouragement’ or instead result from decisions made by the hospitals without regard to the tax implications. “It is equally speculative whether the desired exercise of the court’s remedial powers in this suit would result in the availability to respondents of such services. So far as the complaint sheds light, it is just as plausible that the hospitals to which respondents may apply for service would elect to forgo favorable tax treatment to avoid the undetermined financial drain of an increase in the level of uncompensated services.” 426 U.S., at 42—43. See also id., at 45 (“Speculative inferences are necessary to connect [respondents’] injury to the challenged actions of petitioners”). The injury in the present case is comparable to the repeal of a law granting a subsidy to sellers of processing plants if, and only if, they sell to farmers’ cooperatives. Every farmers’ cooperative seeking to buy a processing plant is harmed by that repeal.
24. Congress failed to act upon proposed legislation to disapprove these cancellations. See S. 1157, H. R. 2444, S. 1144, and H. R. 2436, 105th Cong., 1st Sess. (1997). Indeed, despite the fact that the President has canceled at least 82 items since the Act was passed, see Statement of June E. O’Neill, Director, Congressional Budget Office, Line Item Veto Act After One Year, The Process and Its Implementation, before the Subcommittee on Legislative and Budget Process of the House Committee on Rules, 105th Cong., 2d Sess. (Mar. 11—12, 1998), Congress has enacted only one law, over a Presidential veto, disapproving any cancellation, see Pub. L. 105—159, 112 Stat. 19 (1998) (disapproving the cancellation of 38 military construction spending items).
25. See n. 29, infra.
26. The term “cancel,” used in connection with any dollar amount of discretionary budget authority, means “to rescind.” 2 U.S.C. § 691e(4)(A). The entire definition reads as follows: “The term ‘cancel’ or ‘cancellation’ means– “(A) with respect to any dollar amount of discretionary budget authority, to rescind; “(B) with respect to any item of new direct spending– “(i) that is budget authority provided by law (other than an appropriation law), to prevent such budget authority from having legal force or effect; “(ii) that is entitlement authority, to prevent the specific legal obligation of the United States from having legal force or effect; or “(iii) through the food stamp program, to prevent the specific provision of law that results in an increase in budget authority or outlays for that program from having legal force or effect; and “(C) with respect to a limited tax benefit, to prevent the specific provision of law that provides such benefit from having legal force or effect.” 2 U.S.C. § 691e(4) (1994 ed., Supp. II).
27. See 3 J. Story, Commentaries on the Constitution of the United States §1555, p. 413 (1833) (Art. II, §3, enables the President “to point out the evil, and to suggest the remedy”).
28. The full text of the relevant paragraph of §7 provides: “Every Bill which shall have passed the House of Representatives and the Senate, shall, before it become a Law, be presented to the President of the United States; If he approve he shall sign it, but if not he shall return it, with his Objections to that House in which it shall have originated, who shall enter the Objections at large on their Journal, and proceed to reconsider it. If after such Reconsideration two thirds of that House shall agree to pass the Bill, it shall be sent, together with the Objections, to the other House, by which it shall likewise be reconsidered, and if approved by two thirds of that House, it shall become a Law. But in all such Cases the Votes of both Houses shall be determined by Yeas and Nays, and the Names of the Persons voting for and against the Bill shall be entered on the Journal of each House respectively. If any Bill shall not be returned by the President within ten Days (Sundays excepted) after it shall have been presented to him, the Same shall be a Law, in like Manner as if he had signed it, unless the Congress by their Adjournment prevent its Return, in which Case it shall not be a Law.”
29. “In constitutional terms, ‘veto’ is used to describe the President’s power under Art. I, §7, of the Constitution.” INS v. Chadha, 462 U.S. 919, 925, n. 2 (1983) (citing Black’s Law Dictionary 1403 (5th ed. 1979)).
30. 33 Writings of George Washington 96 (J. Fitzpatrick ed., 1940); see also W. Taft, The Presidency: Its Duties, Its Powers, Its Opportunities and Its Limitations 11 (1916) (stating that the President “has no power to veto part of a bill and let the rest become a law”); cf. 1 W. Blackstone, Commentaries *154 (“The crown cannot begin of itself any alterations in the present established law; but it may approve or disapprove of the alterations suggested and consented to by the two houses”).
31. The lockbox procedure ensures that savings resulting from cancellations are used to reduce the deficit, rather than to offset deficit increases arising from other laws. See 2 U.S.C. § 691c(a)—(b); see also H. R. Conf. Rep. No. 104—491, pp. 23—24 (1996). The Office of Management and Budget (OMB) estimates the deficit reduction resulting from each cancellation of new direct spending or limited tax benefit items and presents its estimate as a separate entry in the “pay-as-you-go” report submitted to Congress pursuant to §252(d) of the Balanced Budget and Emergency Deficit Control Act of 1985 (or “Gramm-Rudman-Hollings Act”), 2 U.S.C. § 902(d). See §691c(a)(2)(A) (1994 ed., Supp. II); see also H. R. Conf. Rep. No. 104—491, at 23. The “pay-as-you-go” requirement acts as a self-imposed limitation on Congress’ ability to increase spending and/or reduce revenue: if spending increases are not offset by revenue increases (or if revenue reductions are not offset by spending reductions), then a “sequester” of the excess budgeted funds is required. See 2 U.S.C. § 900(b), 901(a)(1), 902(b), 906(l). OMB does not include the estimated savings resulting from a cancellation in the report it must submit under §§252(b) and 254 of the Balanced Budget and Emergency Deficit Control Act of 1985, 2 U.S.C. § 902(b), 904. See §691c(a)(2)(B). By providing in this way that such savings “shall not be included in the pay-as-you-go balances,” Congress ensures that “savings from the cancellation of new direct spending or limited tax benefits are devoted to deficit reduction and are not available to offset a deficit increase in another law.” H. R. Conf. Rep. No. 104—491, at 23. Thus, the “pay-as-you-go” cap does not change upon cancellation because the canceled item is not treated as canceled. Moreover, if Congress enacts a disapproval bill, “OMB will not score this legislation as increasing the deficit under pay as you go.” Ibid.
32. The Snake River appellees have argued that the lockbox provisions have no such effect with respect to the canceled tax benefits at issue. Because we reject the Government’s suggestion that the lockbox provisions alter our constitutional analysis, however, we find it unnecessary to resolve the dispute over the details of the lockbox procedure’s applicability.
33. Thus, although “Congress’s use of infelicitous terminology cannot transform the cancellation into an unconstitutional amendment or repeal of an enacted law,” Brief for Appellants 40—41 (citations omitted), the actual effect of a cancellation is entirely consistent with the language of the Act.
34. Moreover, Congress always retains the option of statutorily amending or repealing the lockbox provisions and/or the Gramm-Rudman-Hollings Act, so as to eliminate any lingering financial effect of canceled items.
35. For example, one reason that the President gave for canceling §968 of the Taxpayer Relief Act was his conclusion that “this provision failed to target its benefits to small-and-medium size cooperatives.” App. to Juris. Statement 71a (Cancellation No. 97—2); see n. 8, supra. Because the Line Item Veto Act requires the President to act within five days, every exercise of the cancellation power will necessarily be based on the same facts and circumstances that Congress considered, and therefore constitute a rejection of the policy choice made by Congress.
36. The Court did not, of course, expressly consider in Field whether those statutes comported with the requirements of the Presentment Clause.
37. Cf. 143 U.S., at 688 (discussing Act of Mar. 6, 1866, ch. 12, §2, 14 Stat. 4, which permitted the President to “declare the provisions of this act to be inoperative” and lift import restrictions on foreign cattle and hides upon a showing that such importation would not endanger U.S. cattle).
38. Indeed, the Court in Field v. Clark, 143 U.S. 649 (1892), so limited its reasoning: “in the judgment of the legislative branch of the government, it is often desirable, if not essential for the protection of the interests of our people, against the unfriendly or discriminating regulations established by foreign governments, … to invest the President with large discretion in matters arising out of the execution of statutes relating to trade and commerce with other nations.” Id., at 691.
39. See also J. W. Hampton, Jr., & Co. v. United States, 276 U.S. 394, 407 (1928) (“Congress may feel itself unable conveniently to determine exactly when its exercise of the legislative power should become effective, because dependent on future conditions, and it may leave the determination of such time to the decision of an Executive”).
40. The Government argues that the Rules Enabling Act, 28 U.S.C. § 2072(b), permits this Court to “repeal” prior laws without violating Article I, §7. Section 2072(b) provides that this Court may promulgate rules of procedure for the lower federal courts and that “[a]ll laws in conflict with such rules shall be of no further force or effect after such rules have taken effect.” See Sibbach v. Wilson & Co., 312 U.S. 1, 10 (1941) (stating that the procedural rules that this Court promulgates, “if they are within the authority granted by Congress, repeal” a prior inconsistent procedural statute); see also Henderson v. United States, 517 U.S. 654, 664 (1996) (citing §2072(b)). In enacting §2072(b), however, Congress expressly provided that laws inconsistent with the procedural rules promulgated by this Court would automatically be repealed upon the enactment of new rules in order to create a uniform system of rules for Article III courts. As in the tariff statutes, Congress itself made the decision to repeal prior rules upon the occurrence of a particular event–here, the promulgation of procedural rules by this Court.
41. Cf. Taft, The Presidency, supra n. 30, at 21 (“A President with the power to veto items in appropriation bills might exercise a good restraining influence in cutting down the total annual expenses of the government. But this is not the right way”).
42. See Bowsher, 478 U.S., at 736 (Stevens, J., concurring in judgment) (“When this Court is asked to invalidate a statutory provision that has been approved by both Houses of the Congress and signed by the President, particularly an Act of Congress that confronts a deeply vexing national problem, it should only do so for the most compelling constitutional reasons”).
43. We also find it unnecessary to consider whether the provisions of the Act relating to discretionary budget authority are severable from the Act’s tax benefit and direct spending provisions. We note, however, that the Act contains no severability clause; a severability provision that had appeared in the Senate bill was dropped in conference without explanation. H. R. Conf. Rep. No. 104—491, at 17, 41.
***
Kennedy, J., concurring
SUPREME COURT OF THE UNITED STATES
No. 97—1374
WILLIAM J. CLINTON, PRESIDENT OF THE UNITED
STATES, et al., APPELLANTS v. CITY OF
NEW YORK et al.
ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
[June 25, 1998]
Justice Kennedy, concurring.
A nation cannot plunder its own treasury without putting its Constitution and its survival in peril. The statute before us, then, is of first importance, for it seems undeniable the Act will tend to restrain persistent excessive spending. Nevertheless, for the reasons given by Justice Stevens in the opinion for the Court, the statute must be found invalid. Failure of political will does not justify unconstitutional remedies.
I write to respond to my colleague Justice Breyer, who observes that the statute does not threaten the liberties of individual citizens, a point on which I disagree. See post, at 29. The argument is related to his earlier suggestion that our role is lessened here because the two political branches are adjusting their own powers between themselves. Post, at 4, 14—15. To say the political branches have a somewhat free hand to reallocate their own authority would seem to require acceptance of two premises: first, that the public good demands it, and second, that liberty is not at risk. The former premise is inadmissible. The Constitution’s structure requires a stability which transcends the convenience of the moment. See Metropolitan Washington Airports Authority v. Citizens for Abatement of Aircraft Noise, Inc., 501 U.S. 252, 276—277 (1991); Bowsher v. Synar, 478 U.S. 714, 736 (1986); INS v. Chadha, 462 U.S. 919, 944—945, 958—959 (1983); Northern Pipeline Constr. Co. v. Marathon Pipe Line Co., 458 U.S. 50, 73—74 (1982). The latter premise, too, is flawed. Liberty is always at stake when one or more of the branches seek to transgress the separation of powers.
Separation of powers was designed to implement a fundamental insight: concentration of power in the hands of a single branch is a threat to liberty. The Federalist states the axiom in these explicit terms: “The accumulation of all powers, legislative, executive, and judiciary, in the same hands … may justly be pronounced the very definition of tyranny.” The Federalist No. 47, p. 301 (C. Rossiter ed., 1961). So convinced were the Framers that liberty of the person inheres in structure that at first they did not consider a Bill of Rights necessary. The Federalist No. 84, pp. 513, 515; G. Wood, The Creation of the American Republic 1776—1787, pp. 536—543 (1969). It was at Madison’s insistence that the First Congress enacted the Bill of Rights. R. Goldwin, From Parchment to Power 75—153 (1997). It would be a grave mistake, however, to think a Bill of Rights in Madison’s scheme then or in sound constitutional theory now renders separation of powers of lesser importance. See Amar, The Bill of Rights as a Constitution, 100 Yale L. J. 1131, 1132 (1991).
In recent years, perhaps, we have come to think of liberty as defined by that word in the Fifth and Fourteenth Amendments and as illuminated by the other provisions of the Bill of Rights. The conception of liberty embraced by the Framers was not so confined. They used the principles of separation of powers and federalism to secure liberty in the fundamental political sense of the term, quite in addition to the idea of freedom from intrusive governmental acts. The idea and the promise were that when the people delegate some degree of control to a remote central authority, one branch of government ought not possess the power to shape their destiny without a sufficient check from the other two. In this vision, liberty demands limits on the ability of any one branch to influence basic political decisions. Quoting Montesquieu, the Federalist Papers made the point in the following manner:
“ ‘When the legislative and executive powers are united in the same person or body,’ says he, ‘there can be no liberty, because apprehensions may arise lest the same monarch or senate should enact tyrannical laws to execute them in a tyrannical manner.’ Again: ‘Were the power of judging joined with the legislative, the life and liberty of the subject would be exposed to arbitrary control, for the judge would then be the legislator. Were it joined to the executive power, the judge might behave with all the violence of an oppressor.’ ” The Federalist No. 47, supra, at 303.
It follows that if a citizen who is taxed has the measure of the tax or the decision to spend determined by the Executive alone, without adequate control by the citizen’s Representatives in Congress, liberty is threatened. Money is the instrument of policy and policy affects the lives of citizens. The individual loses liberty in a real sense if that instrument is not subject to traditional constitutional constraints.
The principal object of the statute, it is true, was not to enhance the President’s power to reward one group and punish another, to help one set of taxpayers and hurt another, to favor one State and ignore another. Yet these are its undeniable effects. The law establishes a new mechanism which gives the President the sole ability to hurt a group that is a visible target, in order to disfavor the group or to extract further concessions from Congress. The law is the functional equivalent of a line item veto and enhances the President’s powers beyond what the Framers would have endorsed.
It is no answer, of course, to say that Congress surrendered its authority by its own hand; nor does it suffice to point out that a new statute, signed by the President or enacted over his veto, could restore to Congress the power it now seeks to relinquish. That a congressional cession of power is voluntary does not make it innocuous. The Constitution is a compact enduring for more than our time, and one Congress cannot yield up its own powers, much less those of other Congresses to follow. See Freytag v. Commissioner, 501 U.S. 868, 880 (1991); cf. Chadha, supra, at 942, n. 13. Abdication of responsibility is not part of the constitutional design.
Separation of powers helps to ensure the ability of each branch to be vigorous in asserting its proper authority. In this respect the device operates on a horizontal axis to secure a proper balance of legislative, executive, and judicial authority. Separation of powers operates on a vertical axis as well, between each branch and the citizens in whose interest powers must be exercised. The citizen has a vital interest in the regularity of the exercise of governmental power. If this point was not clear before Chadha, it should have been so afterwards. Though Chadha involved the deportation of a person, while the case before us involves the expenditure of money or the grant of a tax exemption, this circumstance does not mean that the vertical operation of the separation of powers is irrelevant here. By increasing the power of the President beyond what the Framers envisioned, the statute compromises the political liberty of our citizens, liberty which the separation of powers seeks to secure.
The Constitution is not bereft of controls over improvident spending. Federalism is one safeguard, for political accountability is easier to enforce within the States than nationwide. The other principal mechanism, of course, is control of the political branches by an informed and responsible electorate. Whether or not federalism and control by the electorate are adequate for the problem at hand, they are two of the structures the Framers designed for the problem the statute strives to confront. The Framers of the Constitution could not command statesmanship. They could simply provide structures from which it might emerge. The fact that these mechanisms, plus the proper functioning of the separation of powers itself, are not employed, or that they prove insufficient, cannot validate an otherwise unconstitutional device. With these observations, I join the opinion of the Court.
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Part 3 of 4
Breyer, J., dissenting
SUPREME COURT OF THE UNITED STATES
No. 97—1374
WILLIAM J. CLINTON, PRESIDENT OF THE UNITED
STATES, et al., APPELLANTS v. CITY OF
NEW YORK et al.
ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
[June 25, 1998]
Justice Breyer, with whom Justice O’Connor and Justice Scalia join as to Part III, dissenting.
I
I agree with the Court that the parties have standing, but I do not agree with its ultimate conclusion. In my view the Line Item Veto Act does not violate any specific textual constitutional command, nor does it violate any implicit Separation of Powers principle. Consequently, I believe that the Act is constitutional.
II
I approach the constitutional question before us with three general considerations in mind. First, the Act represents a legislative effort to provide the President with the power to give effect to some, but not to all, of the expenditure and revenue-diminishing provisions contained in a single massive appropriations bill. And this objective is constitutionally proper.
When our Nation was founded, Congress could easily have provided the President with this kind of power. In that time period, our population was less than four million, see U.S. Dept. of Commerce, Census Bureau, Historical Statistics of the United States: Colonial Times to 1970, pt. 1, p. 8 (1975), federal employees numbered fewer than 5,000, see id., pt. 2, at 1103, annual federal budget outlays totaled approximately $4 million, see id., pt. 2, at 1104, and the entire operative text of Congress’s first general appropriations law read as follows:
“Be it enacted . . . [t]hat there be appropriated for the service of the present year, to be paid out of the monies which arise, either from the requisitions heretofore made upon the several states, or from the duties on import and tonnage, the following sums, viz. A sum not exceeding two hundred and sixteen thousand dollars for defraying the expenses of the civil list, under the late and present government; a sum not exceeding one hundred and thirty-seven thousand dollars for defraying the expenses of the department of war; a sum not exceeding one hundred and ninety thousand dollars for discharging the warrants issued by the late board of treasury, and remaining unsatisfied; and a sum not exceeding ninety-six thousand dollars for paying the pensions to invalids.” Act of Sept. 29, 1789, ch. 23, §1, 1 Stat. 95.
At that time, a Congress, wishing to give a President the power to select among appropriations, could simply have embodied each appropriation in a separate bill, each bill subject to a separate Presidential veto.
Today, however, our population is about 250 million, see U.S. Dept. of Commerce, Census Bureau, 1990 Census, the Federal Government employs more than four million people, see Office of Management and Budget, Budget of the United States Government, Fiscal Year 1998: Analytical Perspectives 207 (1997) (hereinafter Analytical Perspectives), the annual federal budget is $1.5 trillion, see Office of Management and Budget, Budget of the United States Government, Fiscal Year 1998: Budget 303 (1997) (hereinafter Budget), and a typical budget appropriations bill may have a dozen titles, hundreds of sections, and spread across more than 500 pages of the Statutes at Large. See, e.g., Balanced Budget Act of 1997, Pub. L. 105—33, 111 Stat. 251. Congress cannot divide such a bill into thousands, or tens of thousands, of separate appropriations bills, each one of which the President would have to sign, or to veto, separately. Thus, the question is whether the Constitution permits Congress to choose a particular novel means to achieve this same, constitutionally legitimate, end.
Second, the case in part requires us to focus upon the Constitution’s generally phrased structural provisions, provisions that delegate all “legislative” power to Congress and vest all “executive” power in the President. See Part IV, infra. The Court, when applying these provisions, has interpreted them generously in terms of the institutional arrangements that they permit. See, e.g., Mistretta v. United States, 488 U.S. 361, 412 (1989) (upholding delegation of authority to Sentencing Commission to promulgate Sentencing Guidelines); Crowell v. Benson, 285 U.S. 22, 53—54 (1932) (permitting non-Article III commission to adjudicate factual disputes arising under federal dock workers’ compensation statute). See generally, e.g., OPP Cotton Mills, Inc. v. Administrator of Wage and Hour Div., Dept. of Labor, 312 U.S. 126, 145 (1941) (“In an increasingly complex society Congress obviously could not perform its functions” without delegating details of regulatory scheme to executive agency); Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 635 (1952) (Jackson, J., concurring) (Constitution permits “interdependence” and flexible relations between branches in order to secure “workable government”); J. W. Hampton, Jr., & Co. v. United States, 276 U.S. 394, 406 (1928) (Taft, C. J.) (“[T]he extent and character of . . . assistance [between the different branches] must be fixed according to common sense and the inherent necessities of the governmental co-ordination”); Crowell v. Benson, supra, at 53 (“[R]egard must be had” in cases “where constitutional limits are invoked, not to mere matters of form but to the substance of what is required”).
Indeed, Chief Justice Marshall, in a well-known passage, explained,
“To have prescribed the means by which government should, in all future time, execute its powers, would have been to change, entirely, the character of the instrument, and give it the properties of a legal code. It would have been an unwise attempt to provide, by immutable rules, for exigencies which, if foreseen at all, must have been seen dimly, and which can be best provided for as they occur.” McCulloch v. Maryland, 4 Wheat. 316, 415 (1819).
This passage, like the cases I have just mentioned, calls attention to the genius of the Framers’ pragmatic vision, which this Court has long recognized in cases that find constitutional room for necessary institutional innovation.
Third, we need not here referee a dispute among the other two branches. And, as the majority points out,
“ ‘When this Court is asked to invalidate a statutory provision that has been approved by both Houses of the Congress and signed by the President, particularly an Act of Congress that confronts a deeply vexing national problem, it should only do so for the most compelling constitutional reasons.’ ” Ante, at 29, n. 42 (quoting Bowsher v. Synar, 478 U.S. 714, 736 (1986) (Stevens, J., concurring in judgment)).
Cf. Youngstown Sheet and Tube Co., supra, at 635 (Jackson, J., concurring) (“Presidential powers are not fixed but fluctuate, depending on their disjunction or conjunction with those of Congress . . . [and when] the President acts pursuant to an express or implied authorization of Congress, his authority is at its maximum”).
These three background circumstances mean that, when one measures the literal words of the Act against the Constitution’s literal commands, the fact that the Act may closely resemble a different, literally unconstitutional, arrangement is beside the point. To drive exactly 65 miles per hour on an interstate highway closely resembles an act that violates the speed limit. But it does not violate that limit, for small differences matter when the question is one of literal violation of law. No more does this Act literally violate the Constitution’s words. See Part III, infra.
The background circumstances also mean that we are to interpret nonliteral Separation of Powers principles in light of the need for “workable government.” Youngstown Sheet and Tube Co., supra, at 635 (Jackson, J., concurring). If we apply those principles in light of that objective, as this Court has applied them in the past, the Act is constitutional. See Part IV, infra.
III
The Court believes that the Act violates the literal text of the Constitution. A simple syllogism captures its basic reasoning:
Major Premise: The Constitution sets forth an exclusive method for enacting, repealing, or amending laws. See ante, at 19—21.
Minor Premise: The Act authorizes the President to “repea[l] or amen[d]” laws in a different way, namely by announcing a cancellation of a portion of a previously enacted law. See ante, at 18—19.
Conclusion: The Act is inconsistent with the Constitution. See ante, at 30—31.
I find this syllogism unconvincing, however, because its Minor Premise is faulty. When the President “canceled” the two appropriation measures now before us, he did not repeal any law nor did he amend any law. He simply followed the law, leaving the statutes, as they are literally written, intact.
To understand why one cannot say, literally speaking, that the President has repealed or amended any law, imagine how the provisions of law before us might have been, but were not, written. Imagine that the canceled New York health care tax provision at issue here, Pub. L. 105—33, §4722(c), 111 Stat. 515 (quoted in full ante, at 3, n. 2), had instead said the following:
Section One. Taxes . . . that were collected by the State of New York from a health care provider before June 1, 1997 and for which a waiver of provisions [requiring payment] have been sought . . . are deemed to be permissible health care related taxes . . . provided however that the President may prevent the just-mentioned provision from having legal force or effect if he determines x, y and z. (Assume x, y and z to be the same determinations required by the Line Item Veto Act).
Whatever a person might say, or think, about the constitutionality of this imaginary law, there is one thing the English language would prevent one from saying. One could not say that a President who “prevent[s]” the deeming language from “having legal force or effect,” see 2 U.S.C. § 691e(4)(B) (1994 ed., Supp. II), has either repealed or amended this particular hypothetical statute. Rather, the President has followed that law to the letter. He has exercised the power it explicitly delegates to him. He has executed the law, not repealed it.
It could make no significant difference to this linguistic point were the italicized proviso to appear, not as part of what I have called Section One, but, instead, at the bottom of the statute page, say referenced by an asterisk, with a statement that it applies to every spending provision in the act next to which a similar asterisk appears. And that being so, it could make no difference if that proviso appeared, instead, in a different, earlier-enacted law, along with legal language that makes it applicable to every future spending provision picked out according to a specified formula. See, e.g., Balanced Budget and Emergency Deficit Control Act of 1985 (Gramm-Rudman-Hollings Act), Pub. L. 99—177, 99 Stat. 1063, 2 U.S.C. § 901 et seq. (enforcing strict spending and deficit-neutrality limits on future appropriations statutes); see also 1 U.S.C. § 1 (in “any Act of Congress” singular words include plural, and vice versa) (emphasis added).
But, of course, this last-mentioned possibility is this very case. The earlier law, namely, the Line Item Veto Act, says that “the President may . . . prevent such [future] budget authority from having legal force or effect.” 2 U.S.C. § 691(a), 691e(4)(B) (1994 ed., Supp. II). Its definitional sections make clear that it applies to the 1997 New York health care provision, see 2 U.S.C. § 691e(8), just as they give a special legal meaning to the word “cancel,” 2 U.S.C. § 691e(4). For that reason, one cannot dispose of this case through a purely literal analysis as the majority does. Literally speaking, the President has not “repealed” or “amended” anything. He has simply executed a power conferred upon him by Congress, which power is contained in laws that were enacted in compliance with the exclusive method set forth in the Constitution. See Field v. Clark, 143 U.S. 649, 693 (1892) (President’s power to raise tariff rates “was a part of the law itself, as it left the hands of Congress” (emphasis added)).
Nor can one dismiss this literal compliance as some kind of formal quibble, as if it were somehow “obvious” that what the President has done “amounts to,” “comes close to,” or is “analogous to” the repeal or amendment of a previously enacted law. That is because the power the Act grants the President (to render designated appropriations items without “legal force or effect”) also “amounts to,” “comes close to,” or is “analogous to” a different legal animal, the delegation of a power to choose one legal path as opposed to another, such as a power to appoint.
To take a simple example, a legal document, say a will or a trust instrument, might grant a beneficiary the power (a) to appoint property “to Jones for his life, remainder to Smith for 10 years so long as Smith . . . etc., and then to Brown,” or (b) to appoint the same property “to Black and the heirs of his body,” or (c) not to exercise the power of appointment at all. See, e.g., 5 W. Bowe & D. Parker, Page on Law of Wills §45.8 (rev. 3d ed. 1962) (describing power of appointment). To choose the second or third of these alternatives prevents from taking effect the legal consequences that flow from the first alternative, which the legal instrument describes in detail. Any such choice, made in the exercise of a delegated power, renders that first alternative language without “legal force or effect.” But such a choice does not “repeal” or “amend” either that language or the document itself. The will or trust instrument, in delegating the power of appointment, has not delegated a power to amend or to repeal the instrument; to the contrary, it requires the delegated power to be exercised in accordance with the instrument’s terms. Id., §45.9, at 516—518.
The trust example is useful not merely because of its simplicity, but also because it illustrates the logic that must apply when a power to execute is conferred, not by a private trust document, but by a federal statute. This is not the first time that Congress has delegated to the President or to others this kind of power–a contingent power to deny effect to certain statutory language. See, e.g., Pub. L. 95—384, §13(a), 92 Stat. 737 (“Section 620(x) of the Foreign Assistance Act of 1961 shall be of no further force and effect upon the President’s determination and certification to the Congress that the resumption of full military cooperation with Turkey is in the national interest of the United States and [other criteria]”) (emphasis added); 28 U.S.C. § 2072 (Supreme Court is authorized to promulgate rules of practice and procedure in federal courts, and “[a]ll laws in conflict with such rules shall be of no further force and effect”) (emphasis added); 41 U.S.C. § 405b (subsection (a) requires the Office of Federal Procurement Policy to issue “[g]overnment-wide regulations” setting forth a variety of conflict of interest standards, but subsection (e) says that “if the President determine[s]” that the regulations “would have a significantly adverse effect on the accomplishment of the mission” of government agencies, “the requirement [to promulgate] the regulations . . . shall be null and void”) (emphasis added); Gramm-Rudman-Hollings Act, §252(a)(4), 99 Stat. 1074 (authorizing the President to issue a “final order” that has the effect of “permanently cancell[ing]” sequestered amounts in spending statutes in order to achieve budget compliance) (emphasis added); Pub. L. 104—208, 110 Stat. 3009-695 (“Public Law 89—732 [dealing with immigration from Cuba] is repealed . . . upon a determination by the President . . . that a democratically elected government in Cuba is in power”) (emphasis added); Pub. L. 99—498, §701, 100 Stat. 1532 (amending §758 of the Higher Education Act of 1965) (Secretary of Education “may” sell common stock in an educational loan corporation; if the Secretary decides to sell stock, and “if the Student Loan Marketing Association acquires from the Secretary” over 50 percent of the voting stock, “section 754 [governing composition of the Board of Directors] shall be of no further force or effect”) (emphasis added); Pub. L. 104—134, §2901(c), 110 Stat. 1321—160 (President is “authorized to suspend the provisions of the [preceding] proviso” which suspension may last for entire effective period of proviso, if he determines suspension is “appropriate based upon the public interest in sound environmental management . . . [or] the protection of national or locally-affected interests, or protection of any cultural, biological or historic resources”).
All of these examples, like the Act, delegate a power to take action that will render statutory provisions “without force or effect.” Every one of these examples, like the present Act, delegates the power to choose between alternatives, each of which the statute spells out in some detail. None of these examples delegates a power to “repeal” or “amend” a statute, or to “make” a new law. Nor does the Act. Rather, the delegated power to nullify statutory language was itself created and defined by Congress, and included in the statute books on an equal footing with (indeed, as a component part of) the sections that are potentially subject to nullification. As a Pennsylvania court put the matter more than a century ago: “The legislature cannot delegate its power to make a law; but it can make a law to delegate a power.” Locke’s Appeal, 72 Pa. 491, 498 (1873).
In fact, a power to appoint property offers a closer analogy to the power delegated here than one might at first suspect. That is because the Act contains a “lockbox” feature, which gives legal significance to the enactment of a particular appropriations item even if, and even after, the President has rendered it without “force or effect.” See 2 U.S.C. § 691c; see also ante, at 22, n. 31 (describing lockbox); but cf. Letter from Counsel for Snake River Cooperative, dated Apr. 29, 1998 (available in Clerk of Court’s case file) (arguing “lockbox” feature inapplicable here due to special provision in Balanced Budget Act of 1997, the constitutionality and severability of which have not been argued). In essence, the “lockbox” feature: (1) points to a Gramm-Rudman-Hollings Act requirement that, when Congress enacts a “budget-busting” appropriation bill, automatically reduces authorized spending for a host of federal programs in a pro rata way; (2) notes that cancellation of an item (say, a $2 billion item) would, absent the lockbox provision, neutralize (by up to $2 billion) the potential “budget busting” effects of other bills (and therefore potentially the President could cancel items in order to “save” the other programs from the mandatory cuts, resulting no net deficit reduction); and (3) says that this “neutralization” will not occur (i.e., the pro rata reductions will take place just as if the $2 billion item had not been canceled), so that the canceled items truly provide additional budget savings over and above the Gramm-Rudman-Hollings regime. See generally H. R. Conf. Rep. No. 104—491, pp. 23—24 (1996) (lockbox provision included “to ensure that the savings from the cancellation of [items] are devoted to deficit reduction and are not available to offset a deficit increase in another law”). That is why the Government says that the Act provides a “lockbox,” and why it seems fair to say that, despite the Act’s use of the word “cancel,” the Act does not delegate to the President the power truly to cancel a line item expenditure (returning the legal status quo to one in which the item had never been enacted). Rather, it delegates to the President the power to decide how to spend the money to which the line item refers–either for the specific purpose mentioned
the item, or for general deficit reduction via the “lockbox” feature.
These features of the law do not mean that the delegated power is, or is just like, a power to appoint property. But they do mean that it is not, and it is not just like, the repeal or amendment of a law, or, for that matter, a true line item veto (despite the Act’s title). Because one cannot say that the President’s exercise of the power the Act grants is, literally speaking, a “repeal” or “amendment,” the fact that the Act’s procedures differ from the Constitution’s exclusive procedures for enacting (or repealing) legislation is beside the point. The Act itself was enacted in accordance with these procedures, and its failure to require the President to satisfy those procedures does not make the Act unconstitutional.
IV
Because I disagree with the Court’s holding of literal violation, I must consider whether the Act nonetheless violates Separation of Powers principles–principles that arise out of the Constitution’s vesting of the “executive Power” in “a President,” U.S. Const., Art. II, §1, and “[a]ll legislative Powers” in “a Congress,” Art. I, §1. There are three relevant Separation of Powers questions here: (1) Has Congress given the President the wrong kind of power, i.e., “non-Executive” power? (2) Has Congress given the President the power to “encroach” upon Congress’ own constitutionally reserved territory? (3) Has Congress given the President too much power, violating the doctrine of “nondelegation?” These three limitations help assure “adequate control by the citizen’s representatives in Congress,” upon which Justice Kennedy properly insists. See ante, at 3 (concurring opinion). And with respect to this Act, the answer to all these questions is “no.”
A
Viewed conceptually, the power the Act conveys is the right kind of power. It is “executive.” As explained above, an exercise of that power “executes” the Act. Conceptually speaking, it closely resembles the kind of delegated authority–to spend or not to spend appropriations, to change or not to change tariff rates–that Congress has frequently granted the President, any differences being differences in degree, not kind. See Part IV—C, infra.
The fact that one could also characterize this kind of power as “legislative,” say, if Congress itself (by amending the appropriations bill) prevented a provision from taking effect, is beside the point. This Court has frequently found that the exercise of a particular power, such as the power to make rules of broad applicability, American Trucking Assns., Inc. v. United States, 344 U.S. 298, 310—313 (1953), or to adjudicate claims, Crowell v. Benson, 285 U.S., at 50—51, 54; Wiener v. United States, 357 U.S. 349, 354—356 (1958), can fall within the constitutional purview of more than one branch of Government. See Wayman v. Southard, 10 Wheat. 1, 43 (1825) (Marshall, C. J.) (“Congress may certainly delegate to others, powers which the legislature may rightfully exercise itself”). The Court does not “carry out the distinction between legislative and executive action with mathematical precision” or “divide the branches into watertight compartments,” Springer v. Philippine Islands, 277 U.S. 189, 211 (1928) (Holmes, J., dissenting), for, as others have said, the Constitution “blend[s]” as well as “separat[es]” powers in order to create a workable government. 1 K. Davis, Administrative Law §1.09, p. 68 (1958).
The Court has upheld congressional delegation of rulemaking power and adjudicatory power to federal agencies, American Trucking Assns. v. United States, supra, at 310—313; Wiener v. United States, supra, at 354—356, guideline-writing power to a Sentencing Commission, Mistretta v. United States, 488 U.S., at 412, and prosecutor-appointment power to judges, Morrison v. Olson, 487 U.S. 654, 696—697 (1988). It is far easier conceptually to reconcile the power at issue here with the relevant constitutional description (“executive”) than in many of these cases. And cases in which the Court may have found a delegated power and the basic constitutional function of another branch conceptually irreconcilable are yet more distant. See, e.g., Federal Radio Comm’n v. General Elec. Co., 281 U.S. 464 (1930) (power to award radio licenses not a “judicial” power).
If there is a Separation of Powers violation, then, it must rest, not upon purely conceptual grounds, but upon some important conflict between the Act and a significant Separation of Powers objective.
B
The Act does not undermine what this Court has often described as the principal function of the Separation of Powers, which is to maintain the tripartite structure of the Federal Government–and thereby protect individual liberty–by providing a “safeguard against the encroachment or aggrandizement of one branch at the expense of the other.” Buckley v. Valeo, 424 U.S. 1, 122 (1976) (per curiam); Mistretta v. United States, supra, at 380—382. See The Federalist No. 51, p. 349 (J. Cooke ed. 1961) (J. Madison) (separation of powers confers on each branch the means “to resist encroachments of the others”); 1 Davis, supra, §1.09, at 68 (“The danger is not blended power . . . [t]he danger is unchecked power”); see also, e.g., Bowsher v. Synar, 478 U.S. 714 (1986) (invalidating congressional intrusion on Executive Branch); Northern Pipeline Constr. Co. v. Marathon Pipe Line Co., 458 U.S. 50 (1982) (Congress may not give away Article III “judicial” power to an Article I judge); Myers v. United States, 272 U.S. 52 (1926) (Congress cannot limit President’s power to remove Executive Branch official).
In contrast to these cases, one cannot say that the Act “encroaches” upon Congress’ power, when Congress retained the power to insert, by simple majority, into any future appropriations bill, into any section of any such bill, or into any phrase of any section, a provision that says the Act will not apply. See 2 U.S.C. § 691f(c)(1) (1994 ed., Supp. II); Raines v. Byrd, 521 U.S. ___, ___, (1997) (slip op., at 13) (Congress can “exempt a given appropriations bill (or a given provision in an appropriations bill) from the Act”). Congress also retained the power to “disapprov[e],” and thereby reinstate, any of the President’s cancellations. See 2 U.S. C. §691b(a). And it is Congress that drafts and enacts the appropriations statutes that are subject to the Act in the first place–and thereby defines the outer limits of the President’s cancellation authority. Thus this Act is not the sort of delegation “without . . . sufficient check” that concerns Justice Kennedy. See ante, at 3 (concurring opinion). Indeed, the President acts only in response to, and on the terms set by, the Congress.
Nor can one say that the Act’s basic substantive objective is constitutionally improper, for the earliest Congresses could have, see Part II, supra, and often did, confer on the President this sort of discretionary authority over spending, see ante, at 15 (Scalia, J., concurring in part and dissenting in part). Cf. J. W. Hampton, 276 U.S., at 412 (Taft, C. J.) (“contemporaneous legislative exposition of the Constitution when the founders of our Government and the framers of our Constitution were actively participating in public affairs . . . fixes the construction to be given to its provisions”). And, if an individual Member of Congress, who say, favors aid to Country A but not to Country B, objects to the Act on the ground that the President may “rewrite” an appropriations law to do the opposite, one can respond, “But a majority of Congress voted that he have that power; you may vote to exempt the relevant appropriations provision from the Act; and if you command a majority, your appropriation is safe.” Where the burden of overcoming legislative inertia lies is within the power of Congress to determine by rule. Where is the encroachment?
Nor can one say the Act’s grant of power “aggrandizes” the Presidential office. The grant is limited to the context of the budget. It is limited to the power to spend, or not to spend, particular appropriated items, and the power to permit, or not to permit, specific limited exemptions from generally applicable tax law from taking effect. These powers, as I will explain in detail, resemble those the President has exercised in the past on other occasions. See Part IV—C, infra. The delegation of those powers to the President may strengthen the Presidency, but any such change in Executive Branch authority seems minute when compared with the changes worked by delegations of other kinds of authority that the Court in the past has upheld. See, e.g., American Trucking Assns., Inc. v. United States, 344 U.S. 298 (1953) (delegation of rulemaking authority); Lichter v. United States, 334 U.S. 742 (1948) (delegation to determine and regulate “excessive” profits); Crowell v. Benson, 285 U.S. 22 (1932) (delegation of adjudicatory authority); Commodity Futures Trading Comm’n v. Schor, 478 U.S. 833 (1986) (same).
C
The “nondelegation” doctrine represents an added constitutional check upon Congress’ authority to delegate power to the Executive Branch. And it raises a more serious constitutional obstacle here. The Constitution permits Congress to “see[k] assistance from another branch” of Government, the “extent and character” of that assistance to be fixed “according to common sense and the inherent necessities of the governmental co-ordination.” J. W. Hampton, Jr., & Co. v. United States, 276 U.S., at 406. But there are limits on the way in which Congress can obtain such assistance; it “cannot delegate any part of its legislative power except under the limitation of a prescribed standard.” United States v. Chicago, M., St. P. & P. R. Co., 282 U.S. 311, 324 (1931). Or, in Chief Justice Taft’s more familiar words, the Constitution permits only those delegations where Congress “shall lay down by legislative act an intelligible principle to which the person or body authorized to [act] is directed to conform.” J. W. Hampton, supra, at 409 (emphasis added).
The Act before us seeks to create such a principle in three ways. The first is procedural. The Act tells the President that, in “identifying dollar amounts [or] . . . items. . . for cancellation” (which I take to refer to his selection of the amounts or items he will “prevent from having legal force or effect”), he is to “consider,” among other things,
“the legislative history, construction, and purposes of the law which contains [those amounts or items, and] . . . any specific sources of information referenced in such law or . . . the best available information . . . .” 2 U.S.C. § 691(b) (1994 ed., Supp. II).
The second is purposive. The clear purpose behind the Act, confirmed by its legislative history, is to promote “greater fiscal accountability” and to “eliminate wasteful federal spending and . . . special tax breaks.” H. R. Conf. Rep. No. 104—491, p. 15 (1996).
The third is substantive. The President must determine that, to “prevent” the item or amount “from having legal force or effect” will “reduce the Federal budget deficit; . . . not impair any essential Government functions; and . . . not harm the national interest.” 2 U.S.C. § 691(a)(A) (1994 ed., Supp. II).
The resulting standards are broad. But this Court has upheld standards that are equally broad, or broader. See, e.g., National Broadcasting Co. v. United States, 319 U.S. 190, 225—226 (1943) (upholding delegation to Federal Communications Commission to regulate broadcast licensing as “public interest, convenience, or necessity” require) (internal quotation marks omitted); FPC v. Hope Natural Gas Co., 320 U.S. 591, 600—603 (1944) (upholding delegation to Federal Power Commission to determine “just and reasonable” rates); United States v. Rock Royal Co-operative, Inc., 307 U.S. 533, 577 (1939) (if milk prices were “unreasonable,” Secretary could “fi[x]” prices to a level that was “in the public interest”). See also Lichter v. United States, 334 U.S. 742, 785—786 (1948) (delegation of authority to determine “excessive” profits); American Power & Light Co. v. SEC, 329 U.S. 90, 104—105 (1946) (delegation of authority to SEC to prevent “unfairly or inequitably” distributing voting power among security holders); Yakus v. United States, 321 U.S. 414, 427 (1944) (upholding delegation to Price Administrator to fix commodity prices that would be “fair” and “equitable”).
Indeed, the Court has only twice in its history found that a congressional delegation of power violated the “nondelegation” doctrine. One such case, Panama Refining Co. v. Ryan, 293 U.S. 388 (1935), was in a sense a special case, for it was discovered in the midst of the case that the particular exercise of the power at issue, the promulgation of a Petroleum Code under the National Industrial Recovery Act, did not contain any legally operative sentence. Id., at 412—413. The other case, A. L. A. Schechter Poultry Corp. v. United States, 295 U.S. 495 (1935), involved a delegation through the National Industrial Recovery Act, 48 Stat. 195, that contained not simply a broad standard (“fair competition”), but also the conferral of power on private parties to promulgate rules applying that standard to virtually all of American industry. Id., at 521—525. As Justice Cardozo put it, the legislation exemplified “delegation running riot,” which created a “roving commission to inquire into evils and upon discovery correct them.” Id., at 553, 551 (concurring opinion).
The case before us does not involve any such “roving commission,” nor does it involve delegation to private parties, nor does it bring all of American industry within its scope. It is limited to one area of government, the budget, and it seeks to give the President the power, in one portion of that budget, to tailor spending and special tax relief to what he concludes are the demands of fiscal responsibility. Nor is the standard that governs his judgment, though broad, any broader than the standard that currently governs the award of television licenses, namely “public convenience, interest, or necessity.” 47 U.S. C. §303 (emphasis added). To the contrary, (a) the broadly phrased limitations in the Act, together with (b) its evident deficit reduction purpose, and (c) a procedure that guarantees Presidential awareness of the reasons for including a particular provision in a budget bill, taken together, guide the President’s exercise of his discretionary powers.
1
The relevant similarities and differences among and between this case and other “nondelegation” cases can be listed more systematically as follows: First, as I have just said, like statutes delegating power to award broadcast television licenses, or to regulate the securities industry, or to develop and enforce workplace safety rules, the Act is aimed at a discrete problem: namely, a particular set of expenditures within the federal budget. The Act concerns, not the entire economy, cf. Schecter Poultry Corp., supra, but the annual federal budget. Within the budget it applies only to discretionary budget authority and new direct spending items, that together amount to approximately a third of the current annual budget outlays, see Tr. of Oral Arg. 18; see also Budget 303, and to “limited tax benefits” that (because each can affect no more than 100 people, see 2 U.S.C. § 691e(9)(A) (1994 ed., Supp. II)), amount to a tiny fraction of federal revenues and appropriations. Compare Analytical Perspectives 73—75 (1997) (listing over $500 billion in overall “tax expenditures” that OMB estimated were contained in federal law in 1997) and Budget 303 (federal outlays and receipts in 1997 were both over $1.5 trillion) with App. to Juris. Statement 71a (President’s cancellation message for Snake River appellees’ limited tax benefit, estimating annual “value” of benefit, in terms of revenue loss, at about $20 million).
Second, like the award of television licenses, the particular problem involved–determining whether or not a particular amount of money should be spent or whether a particular dispensation from tax law should be granted a few individuals–does not readily lend itself to a significantly more specific standard. The Act makes clear that the President should consider the reasons for the expenditure, measure those reasons against the desirability of avoiding a deficit (or building a surplus) and make up his mind about the comparative weight of these conflicting goals. Congress might have expressed this matter in other language, but could it have done so in a significantly more specific way? See National Broadcasting Co. v. United States, 319 U.S., at 216 (“[P]ublic interest, convenience, or necessity” standard is “ ‘as concrete as the complicated factors for judgment in such a field of delegated authority permit’ ”) (quoting FCC v. Pottsville Broadcasting Co., 309 U.S. 134, 138 (1940)). The statute’s language, I believe, is sufficient to provide the President, and the public, with a fairly clear idea as to what Congress had in mind. And the public can judge the merits of the President’s choices accordingly. Cf. Yakus v. United States, supra, 321 U.S., at 426 (standards were “sufficiently definite and precise to enable . . . the public to ascertain . . . conform[ity]”).
Third, in insofar as monetary expenditure (but not “tax expenditure”) is at issue, the President acts in an area where history helps to justify the discretionary power that Congress has delegated, and where history may inform his exercise of the Act’s delegated authority. Congress has frequently delegated the President the authority to spend, or not to spend, particular sums of money. See, e.g., Act of Sept. 29, 1789, ch. 23, §1, 1 Stat. 95; Act of Mar. 26, 1790, ch. 4, §1, 1 Stat. 104; Act of Feb. 11, 1791, ch. 6, 1 Stat. 190; Emergency Relief Appropriation Act of 1935, 49 Stat. 115 (appropriating over $4 billion to be spent “in the discretion and under the direction of the President” for economic relief measures); see also ante, at 15—16 (Scalia, J., concurring in part and dissenting in part) (listing numerous examples).
Fourth, the Constitution permits Congress to rely upon context and history as providing the necessary standard for the exercise of the delegated power. See, e.g., Federal Radio Comm’n v. Nelson Brothers Bond & Mortgage Co. (Station WIBO), 289 U.S. 266, 285 (1933) (“public interest, convenience, or necessity [standard] . . . is to be interpreted by its context”); Fahey v. Mallonee, 332 U.S. 245, 253 (1947) (otherwise vague delegation to regulate banks was “sufficiently explicit, against the background of custom, to be adequate”). Relying upon context, Congress has sometimes granted the President broad discretionary authority over spending in laws that mention no standard at all. See, e.g., Act of Mar. 3, 1809, ch. 28, §1, 2 Stat. 535—536 (granting the President recess authority to transfer money “appropriated for a particular branch of expenditure in [a] department” to be “applied [instead] to another branch of expenditure in the same department”); Revenue and Expenditure Control Act of 1968, Pub. L. 90—364, §§202(b), 203(b), 82 Stat. 271—272; (authorizing the President annually to reserve up to $6 billion in outlays and $10 billion in new obligation authority); Second Supplemental Appropriations Act, 1969, Pub. L. 91—47, §401, 83 Stat. 82; Second Supplemental Appropriations Act, 1970, Pub. L. 91—305, §§401, 501, 84 Stat. 405—407. In this case, too, context and purpose can give meaning to highly general language. See Federal Radio Commn. v. Nelson Bros., supra, at 285; Fahey v. Malonee, supra, at 250—253; cf. Lichter v. United States, 334 U.S., at 777 (Congress has “at least expressed . . . satisfaction with the existing specificity of the Act”); Train v. City of New York, 420 U.S. 35, 44—47 (1975) (disallowing President Nixon’s efforts to impound funds because Court found Congress did not intend him to exercise the power in that instance).
On the other hand, I must recognize that there are important differences between the delegation before us and other broad, constitutionally-acceptable delegations to Executive Branch agencies–differences that argue against my conclusion. In particular, a broad delegation of authority to an administrative agency differs from the delegation at issue here in that agencies often develop subsidiary rules under the statute, rules that explain the general “public interest” language. Doing so diminishes the risk that the agency will use the breadth of a grant of authority as a cloak for unreasonable or unfair implementation. See 1 K. Davis, Administrative Law §3:15, pp. 207—208 (2d ed. 1978). Moreover, agencies are typically subject to judicial review, which review provides an additional check against arbitrary implementation. See, e.g., Motor Vehicle Mfrs. Assn. of United States, Inc. v. State Farm Mut. Automobile Ins. Co., 463 U.S. 29, 40—42 (1983). The President has not so narrowed his discretionary power through rule, nor is his implementation subject to judicial review under the terms of the Administrative Procedure Act. See, e.g., Franklin v. Massachusetts, 505 U.S. 788, 801 (1992) (APA does not apply to President absent express statement by Congress).
While I believe that these last-mentioned considerations are important, they are not determinative. The President, unlike most agency decisionmakers, is an elected official. He is responsible to the voters, who, in principle, will judge the manner in which he exercises his delegated authority. Whether the President’s expenditure decisions, for example, are arbitrary is a matter that in the past has been left primarily to those voters to consider. And this Court has made clear that judicial review is less appropriate when the President’s own discretion, rather than that of an agency, is at stake. See Dalton v. Specter, 511 U.S. 462, 476 (1994) (Presidential decision on military base closure recommendations not reviewable; President could “approv[e] or disapprov[e] the recommendations for whatever reason he sees fit”); Franklin, 505 U.S., at 801 (President’s decision whether or not to transmit census report to Congress was unreviewable by courts for abuse of discretion); cf. id., at 799—800 (it was “important to the integrity of the process” that the decision was made by the President, a “constitutional officer” as opposed to the unelected Secretary of Commerce). These matters reflect in part the Constitution’s own delegation of “executive Power” to “a President,” U.S. Const., Art. II, §1, cf. Clinton v. Jones, 520 U.S. ___, ___, (1997) (slip op., at 1—2) (Breyer, J., concurring in judgment) (discussing unitary executive), and we must take this into account when applying the Constitution’s nondelegation doctrine to questions of Presidential authority.
Consequently I believe that the power the Act grants the President to prevent spending items from taking effect does not violate the “nondelegation” doctrine.
2
Most, but not all, of the considerations mentioned in the previous subsection apply to the Act’s delegation to the President of the authority to prevent “from having legal force or effect” a “limited tax benefit,” which term the Act defines in terms of special tax relief for fewer than 100 (or in some instances 10) beneficiaries, which tax relief is not available to others who are somewhat similarly situated. 2 U.S.C. § 691e(9) (1994 ed., Supp. II). There are, however, two related significant differences between the “limited tax benefit” and the spending items considered above, which make the “limited tax benefit” question more difficult. First, the history is different. The history of Presidential authority to pick and to choose is less voluminous. Second, the subject matter (increasing or decreasing an individual’s taxes) makes the considerations discussed at the end of the last section (i.e., the danger of an arbitrary exercise of delegated power) of greater concern. But these differences, in my view, are not sufficient to change the “nondelegation” result.
For one thing, this Court has made clear that the standard we must use to judge whether a law violates the “nondelegation” doctrine is the same in the tax area as in any other. In Skinner v. Mid-America Pipeline Co., 490 U.S. 212 (1989), the Court considered whether Congress, in the exercise of its taxing power, could delegate to the Secretary of Transportation the authority to establish a system of pipeline user fees. In rejecting the argument that the “fees” were actually a “tax,” and that the law amounted to an unconstitutional delegation of Congress’ own power to tax, the unanimous Court said that:
“From its earliest days to the present, Congress, when enacting tax legislation, has varied the degree of specificity and the consequent degree of discretionary authority delegated to the Executive . . . . We find no support … for [the] contention that the text of the Constitution or the practices of Congress require the application of a different and stricter nondelegation doctrine in cases where Congress delegates discretionary authority to the Executive under its taxing power. . . . Even if the user fees are a form of taxation, we hold that the delegation of discretionary authority under Congress’ taxing power is subject to no constitutional scrutiny greater than that we have applied to other nondelegation challenges. Congress may wisely choose to be more circumspect in delegating authority under the Taxing Clause than under other of its enumerated powers, but this is not a heightened degree of prudence required by the Constitution.” Id., at 221—223.
For another thing, this Court has upheld tax statutes that delegate to the President the power to change taxes under very broad standards. In 1890, for example, Congress authorized the President to “suspend” the provisions of the tariff statute, thereby raising tariff rates, if the President determined that other nations were imposing “reciprocally unequal and unreasonable” tariff rates on specialized commodities. Act of Oct. 1, 1890, ch. 1244, §3, 26 Stat. 612. And the Court upheld the statute against constitutional attack. Field v. Clark, 143 U.S., at 693—694 (“no valid objection can be made” to such statutes “conferring authority or discretion” on the President) (internal quotation marks omitted); see also Act of Dec. 19, 1806, ch. 1, 2 Stat. 411 (President “authorized” to “suspend the operation of” a customs law “if in his judgment the public interest should require it”); Act of June 4, 1794, ch. 41, §1, 1 Stat. 372 (empowering President to lay an embargo on ships in ports “whenever, in his opinion, the public safety shall so require” and to revoke related regulations “whenever he shall think proper”). In 1922 Congress gave the President the authority to adjust tariff rates to “equalize” the differences in costs of production at home and abroad, see Tariff Act of 1922, ch. 356, §315(a), 42 Stat. 941—942. The Court also upheld this delegation against constitutional attack. See J. W. Hampton, Jr., & Co. v. United States, 276 U.S. 394 (1928).
These statutory delegations resemble today’s Act more closely than one might at first suspect. They involve a duty on imports, which is a tax. That tax in the last century was as important then as the income tax is now, for it provided most of the Federal Government’s revenues. See U.S. Dept. of Commerce, Census Bureau, Historical Statistics of the United States: Colonial Times to 1970, pt. 2, at 1106 (in 1890, when Congress passed the statute at issue in Field, tariff revenues were 57% of the total receipts of the Federal Government). And the delegation then thus affected a far higher percentage of federal revenues than the tax-related delegation over extremely “limited” tax benefits here. See supra, at 18—19.
The standards at issue in these earlier laws, such as “unreasonable,” were frequently vague and without precise meaning. See, e.g., Act of Oct. 1, 1890, §3, 26 Stat. 612. Indeed, the word “equalize” in the 1922 statute, 42 Stat. 942, could not have been administered as if it offered the precision it seems to promise, for a tariff that literally “equalized” domestic and foreign production costs would, because of transport costs, have virtually ended foreign trade.
Nor can I accept the majority’s effort to distinguish these examples. The majority says that these statutes imposed a specific “duty” upon the President to act upon the occurrence of a specified event. See ante, at 25. But, in fact, some of the statutes imposed no duty upon the President at all. See, e.g., Act of Dec. 19, 1806, ch. 1, 2 Stat. 411 (President “authorized” to “suspend the operation of” a customs law “if in his judgment the public interest should require it”). Others imposed a “duty” in terms so vague as to leave substantial discretion in the President’s hands. See Act of Oct. 1, 1890, 26 Stat. 612 (President’s “duty” to suspend tariff law was triggered “whenever” and “so often as” he was “satisfied” that “unequal and unreasonable” rates were imposed); see also Field v. Clark, supra, at 691 (historically in the flexible tariff statutes Congress has “invest[ed] the President with large discretion”).
The majority also tries to distinguish these examples on the ground that the President there executed congressional policy while here he rejects that policy. See ante, at 24—29. The President here, however, in exercising his delegated authority does not reject congressional policy. Rather, he executes a law in which Congress has specified its desire that the President have the very authority he has exercised. See Part III, supra.
The majority further points out that these cases concern imports, an area that, it says, implicates foreign policy and therefore justifies an unusual degree of discretion by the President. See ante, at 27. Congress, however, has not limited its delegations of taxation authority to the “foreign policy” arena. The first Congress gave the Secretary of the Treasury the “power to mitigate or remit” statutory penalties for nonpayment of liquor taxes “upon such terms and conditions as shall appear to him reasonable.” Act of Mar. 3, 1791, ch. 15, §43, 1 Stat. 209. A few years later, the Secretary was authorized, in lieu of collecting the stamp duty enacted by Congress, “to agree to an annual composition for the amount of such stamp duty, with any of the said banks, of one per centum on the amount of the annual dividend made by such banks.” Act of July 6, 1797, ch. 11, §2, 1 Stat. 528. More recently, Congress has given to the Executive Branch the authority to “prescribe all needful rules and regulations for the enforcement of [the Internal Revenue Code], including all rules and regulations as may be necessary by reason of any alteration of law in relation to internal revenue.” 26 U.S.C. § 7805(a). And the Court has held that such rules and regulations, “which undoubtedly affect individual taxpayer liability, are . . . without doubt the result of entirely appropriate delegations of discretionary authority by Congress.” Skinner v. Mid-America Pipeline Co., 490 U.S., at 222. I do not believe the Court would hold the same delegations at issue in J. W. Hampton and Field unconstitutional were they to arise in a more obviously domestic area.
Finally, the tax-related delegation is limited in ways that tend to diminish any widespread risk of arbitrary Presidential decisionmaking:
(1) The Act does not give the President authority to change general tax policy. That is because the limited tax benefits are defined in terms of deviations from tax policy, i.e., special benefits to fewer than 100 individuals. See 2 U.S.C. § 691e(9)(A)(i) (1994 ed., Supp. II); see also Analytical Perpectives 84 (defining “tax expenditure” as “a preferential exception to the baseline provisions of the tax structure”).
(2) The Act requires the President to make the same kind of policy judgment with respect to these special benefits as with respect to items of spending. He is to consider the budget as a whole, he is to consider the particular history of the tax benefit provision, and he is to consider whether the provision is worth the loss of revenue it causes in the same way that he must decide whether a particular expenditure item is worth the added revenue that it requires. See supra, at 16.
(3) The delegated authority does not destroy any individual’s expectation of receiving a particular benefit, for the Act is written to say to the small group of taxpayers who may receive the benefit, “Taxpayers, you will receive an exemption from ordinary tax laws, but only if the President decides the budgetary loss is not too great.”
(4) The “limited tax benefit” provisions involve only a small part of the federal budget, probably less than one percent of total annual outlays and revenues. Compare Budget 303 (federal outlays and receipts in 1997 were both over $1.5 trillion) with App. to Juris. Statement 71a (President’s cancellation message for Snake River appellees’ limited tax benefit, estimating annual “value” of benefit, in terms of revenue loss, at about $20 million) and Taxpayer Relief Act of 1997, §1701, 111 Stat. 1099 (identifying only 79 “limited tax benefits” subject to cancellation in the entire tax statute).
(5) Because the “tax benefit” provisions are part and parcel of the budget provisions, and because the Act in defining them, focuses upon “revenue-losing” tax provisions, 2 U.S.C. § 691e(9)(A)(i) (1994 ed., Supp. II), it regards “tax benefits” as if they were a special kind of spending, namely spending that puts back into the pockets of a small group of taxpayers, money that “baseline” tax policy would otherwise take from them. There is, therefore, no need to consider this provision as if it represented a delegation of authority to the President, outside the budget expenditure context, to set major policy under the federal tax laws. But cf. Skinner v. Mid-America Pipeline, supra, at 222—223 (no “different and stricter” nondelegation doctrine in the taxation context). Still less does approval of the delegation in this case, given the long history of Presidential discretion in the budgetary context, automatically justify the delegation to the President of the authority to alter the effect of other laws outside that context.
The upshot is that, in my view, the “limited tax benefit” provisions do not differ enough from the “spending” provisions to warrant a different “nondelegation” result.
V
In sum, I recognize that the Act before us is novel. In a sense, it skirts a constitutional edge. But that edge has to do with means, not ends. The means chosen do not amount literally to the enactment, repeal, or amendment of a law. Nor, for that matter, do they amount literally to the “line item veto” that the Act’s title announces. Those means do not violate any basic Separation of Powers principle. They do not improperly shift the constitutionally foreseen balance of power from Congress to the President. Nor, since they comply with Separation of Powers principles, do they threaten the liberties of individual citizens. They represent an experiment that may, or may not, help representative government work better. The Constitution, in my view, authorizes Congress and the President to try novel methods in this way. Consequently, with respect, I dissent.
***
Breyer, J., dissenting
SUPREME COURT OF THE UNITED STATES
No. 97—1374
WILLIAM J. CLINTON, PRESIDENT OF THE UNITED
STATES, et al., APPELLANTS v. CITY OF
NEW YORK et al.
ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
[June 25, 1998]
Justice Breyer, with whom Justice O’Connor and Justice Scalia join as to Part III, dissenting.
I
I agree with the Court that the parties have standing, but I do not agree with its ultimate conclusion. In my view the Line Item Veto Act does not violate any specific textual constitutional command, nor does it violate any implicit Separation of Powers principle. Consequently, I believe that the Act is constitutional.
II
I approach the constitutional question before us with three general considerations in mind. First, the Act represents a legislative effort to provide the President with the power to give effect to some, but not to all, of the expenditure and revenue-diminishing provisions contained in a single massive appropriations bill. And this objective is constitutionally proper.
When our Nation was founded, Congress could easily have provided the President with this kind of power. In that time period, our population was less than four million, see U.S. Dept. of Commerce, Census Bureau, Historical Statistics of the United States: Colonial Times to 1970, pt. 1, p. 8 (1975), federal employees numbered fewer than 5,000, see id., pt. 2, at 1103, annual federal budget outlays totaled approximately $4 million, see id., pt. 2, at 1104, and the entire operative text of Congress’s first general appropriations law read as follows:
“Be it enacted . . . [t]hat there be appropriated for the service of the present year, to be paid out of the monies which arise, either from the requisitions heretofore made upon the several states, or from the duties on import and tonnage, the following sums, viz. A sum not exceeding two hundred and sixteen thousand dollars for defraying the expenses of the civil list, under the late and present government; a sum not exceeding one hundred and thirty-seven thousand dollars for defraying the expenses of the department of war; a sum not exceeding one hundred and ninety thousand dollars for discharging the warrants issued by the late board of treasury, and remaining unsatisfied; and a sum not exceeding ninety-six thousand dollars for paying the pensions to invalids.” Act of Sept. 29, 1789, ch. 23, §1, 1 Stat. 95.
At that time, a Congress, wishing to give a President the power to select among appropriations, could simply have embodied each appropriation in a separate bill, each bill subject to a separate Presidential veto.
Today, however, our population is about 250 million, see U.S. Dept. of Commerce, Census Bureau, 1990 Census, the Federal Government employs more than four million people, see Office of Management and Budget, Budget of the United States Government, Fiscal Year 1998: Analytical Perspectives 207 (1997) (hereinafter Analytical Perspectives), the annual federal budget is $1.5 trillion, see Office of Management and Budget, Budget of the United States Government, Fiscal Year 1998: Budget 303 (1997) (hereinafter Budget), and a typical budget appropriations bill may have a dozen titles, hundreds of sections, and spread across more than 500 pages of the Statutes at Large. See, e.g., Balanced Budget Act of 1997, Pub. L. 105—33, 111 Stat. 251. Congress cannot divide such a bill into thousands, or tens of thousands, of separate appropriations bills, each one of which the President would have to sign, or to veto, separately. Thus, the question is whether the Constitution permits Congress to choose a particular novel means to achieve this same, constitutionally legitimate, end.
Second, the case in part requires us to focus upon the Constitution’s generally phrased structural provisions, provisions that delegate all “legislative” power to Congress and vest all “executive” power in the President. See Part IV, infra. The Court, when applying these provisions, has interpreted them generously in terms of the institutional arrangements that they permit. See, e.g., Mistretta v. United States, 488 U.S. 361, 412 (1989) (upholding delegation of authority to Sentencing Commission to promulgate Sentencing Guidelines); Crowell v. Benson, 285 U.S. 22, 53—54 (1932) (permitting non-Article III commission to adjudicate factual disputes arising under federal dock workers’ compensation statute). See generally, e.g., OPP Cotton Mills, Inc. v. Administrator of Wage and Hour Div., Dept. of Labor, 312 U.S. 126, 145 (1941) (“In an increasingly complex society Congress obviously could not perform its functions” without delegating details of regulatory scheme to executive agency); Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 635 (1952) (Jackson, J., concurring) (Constitution permits “interdependence” and flexible relations between branches in order to secure “workable government”); J. W. Hampton, Jr., & Co. v. United States, 276 U.S. 394, 406 (1928) (Taft, C. J.) (“[T]he extent and character of . . . assistance [between the different branches] must be fixed according to common sense and the inherent necessities of the governmental co-ordination”); Crowell v. Benson, supra, at 53 (“[R]egard must be had” in cases “where constitutional limits are invoked, not to mere matters of form but to the substance of what is required”).
Indeed, Chief Justice Marshall, in a well-known passage, explained,
“To have prescribed the means by which government should, in all future time, execute its powers, would have been to change, entirely, the character of the instrument, and give it the properties of a legal code. It would have been an unwise attempt to provide, by immutable rules, for exigencies which, if foreseen at all, must have been seen dimly, and which can be best provided for as they occur.” McCulloch v. Maryland, 4 Wheat. 316, 415 (1819).
This passage, like the cases I have just mentioned, calls attention to the genius of the Framers’ pragmatic vision, which this Court has long recognized in cases that find constitutional room for necessary institutional innovation.
Third, we need not here referee a dispute among the other two branches. And, as the majority points out,
“ ‘When this Court is asked to invalidate a statutory provision that has been approved by both Houses of the Congress and signed by the President, particularly an Act of Congress that confronts a deeply vexing national problem, it should only do so for the most compelling constitutional reasons.’ ” Ante, at 29, n. 42 (quoting Bowsher v. Synar, 478 U.S. 714, 736 (1986) (Stevens, J., concurring in judgment)).
Cf. Youngstown Sheet and Tube Co., supra, at 635 (Jackson, J., concurring) (“Presidential powers are not fixed but fluctuate, depending on their disjunction or conjunction with those of Congress . . . [and when] the President acts pursuant to an express or implied authorization of Congress, his authority is at its maximum”).
These three background circumstances mean that, when one measures the literal words of the Act against the Constitution’s literal commands, the fact that the Act may closely resemble a different, literally unconstitutional, arrangement is beside the point. To drive exactly 65 miles per hour on an interstate highway closely resembles an act that violates the speed limit. But it does not violate that limit, for small differences matter when the question is one of literal violation of law. No more does this Act literally violate the Constitution’s words. See Part III, infra.
The background circumstances also mean that we are to interpret nonliteral Separation of Powers principles in light of the need for “workable government.” Youngstown Sheet and Tube Co., supra, at 635 (Jackson, J., concurring). If we apply those principles in light of that objective, as this Court has applied them in the past, the Act is constitutional. See Part IV, infra.
III
The Court believes that the Act violates the literal text of the Constitution. A simple syllogism captures its basic reasoning:
Major Premise: The Constitution sets forth an exclusive method for enacting, repealing, or amending laws. See ante, at 19—21.
Minor Premise: The Act authorizes the President to “repea[l] or amen[d]” laws in a different way, namely by announcing a cancellation of a portion of a previously enacted law. See ante, at 18—19.
Conclusion: The Act is inconsistent with the Constitution. See ante, at 30—31.
I find this syllogism unconvincing, however, because its Minor Premise is faulty. When the President “canceled” the two appropriation measures now before us, he did not repeal any law nor did he amend any law. He simply followed the law, leaving the statutes, as they are literally written, intact.
To understand why one cannot say, literally speaking, that the President has repealed or amended any law, imagine how the provisions of law before us might have been, but were not, written. Imagine that the canceled New York health care tax provision at issue here, Pub. L. 105—33, §4722(c), 111 Stat. 515 (quoted in full ante, at 3, n. 2), had instead said the following:
Section One. Taxes . . . that were collected by the State of New York from a health care provider before June 1, 1997 and for which a waiver of provisions [requiring payment] have been sought . . . are deemed to be permissible health care related taxes . . . provided however that the President may prevent the just-mentioned provision from having legal force or effect if he determines x, y and z. (Assume x, y and z to be the same determinations required by the Line Item Veto Act).
Whatever a person might say, or think, about the constitutionality of this imaginary law, there is one thing the English language would prevent one from saying. One could not say that a President who “prevent[s]” the deeming language from “having legal force or effect,” see 2 U.S.C. § 691e(4)(B) (1994 ed., Supp. II), has either repealed or amended this particular hypothetical statute. Rather, the President has followed that law to the letter. He has exercised the power it explicitly delegates to him. He has executed the law, not repealed it.
It could make no significant difference to this linguistic point were the italicized proviso to appear, not as part of what I have called Section One, but, instead, at the bottom of the statute page, say referenced by an asterisk, with a statement that it applies to every spending provision in the act next to which a similar asterisk appears. And that being so, it could make no difference if that proviso appeared, instead, in a different, earlier-enacted law, along with legal language that makes it applicable to every future spending provision picked out according to a specified formula. See, e.g., Balanced Budget and Emergency Deficit Control Act of 1985 (Gramm-Rudman-Hollings Act), Pub. L. 99—177, 99 Stat. 1063, 2 U.S.C. § 901 et seq. (enforcing strict spending and deficit-neutrality limits on future appropriations statutes); see also 1 U.S.C. § 1 (in “any Act of Congress” singular words include plural, and vice versa) (emphasis added).
But, of course, this last-mentioned possibility is this very case. The earlier law, namely, the Line Item Veto Act, says that “the President may . . . prevent such [future] budget authority from having legal force or effect.” 2 U.S.C. § 691(a), 691e(4)(B) (1994 ed., Supp. II). Its definitional sections make clear that it applies to the 1997 New York health care provision, see 2 U.S.C. § 691e(8), just as they give a special legal meaning to the word “cancel,” 2 U.S.C. § 691e(4). For that reason, one cannot dispose of this case through a purely literal analysis as the majority does. Literally speaking, the President has not “repealed” or “amended” anything. He has simply executed a power conferred upon him by Congress, which power is contained in laws that were enacted in compliance with the exclusive method set forth in the Constitution. See Field v. Clark, 143 U.S. 649, 693 (1892) (President’s power to raise tariff rates “was a part of the law itself, as it left the hands of Congress” (emphasis added)).
Nor can one dismiss this literal compliance as some kind of formal quibble, as if it were somehow “obvious” that what the President has done “amounts to,” “comes close to,” or is “analogous to” the repeal or amendment of a previously enacted law. That is because the power the Act grants the President (to render designated appropriations items without “legal force or effect”) also “amounts to,” “comes close to,” or is “analogous to” a different legal animal, the delegation of a power to choose one legal path as opposed to another, such as a power to appoint.
To take a simple example, a legal document, say a will or a trust instrument, might grant a beneficiary the power (a) to appoint property “to Jones for his life, remainder to Smith for 10 years so long as Smith . . . etc., and then to Brown,” or (b) to appoint the same property “to Black and the heirs of his body,” or (c) not to exercise the power of appointment at all. See, e.g., 5 W. Bowe & D. Parker, Page on Law of Wills §45.8 (rev. 3d ed. 1962) (describing power of appointment). To choose the second or third of these alternatives prevents from taking effect the legal consequences that flow from the first alternative, which the legal instrument describes in detail. Any such choice, made in the exercise of a delegated power, renders that first alternative language without “legal force or effect.” But such a choice does not “repeal” or “amend” either that language or the document itself. The will or trust instrument, in delegating the power of appointment, has not delegated a power to amend or to repeal the instrument; to the contrary, it requires the delegated power to be exercised in accordance with the instrument’s terms. Id., §45.9, at 516—518.
The trust example is useful not merely because of its simplicity, but also because it illustrates the logic that must apply when a power to execute is conferred, not by a private trust document, but by a federal statute. This is not the first time that Congress has delegated to the President or to others this kind of power–a contingent power to deny effect to certain statutory language. See, e.g., Pub. L. 95—384, §13(a), 92 Stat. 737 (“Section 620(x) of the Foreign Assistance Act of 1961 shall be of no further force and effect upon the President’s determination and certification to the Congress that the resumption of full military cooperation with Turkey is in the national interest of the United States and [other criteria]”) (emphasis added); 28 U.S.C. § 2072 (Supreme Court is authorized to promulgate rules of practice and procedure in federal courts, and “[a]ll laws in conflict with such rules shall be of no further force and effect”) (emphasis added); 41 U.S.C. § 405b (subsection (a) requires the Office of Federal Procurement Policy to issue “[g]overnment-wide regulations” setting forth a variety of conflict of interest standards, but subsection (e) says that “if the President determine[s]” that the regulations “would have a significantly adverse effect on the accomplishment of the mission” of government agencies, “the requirement [to promulgate] the regulations . . . shall be null and void”) (emphasis added); Gramm-Rudman-Hollings Act, §252(a)(4), 99 Stat. 1074 (authorizing the President to issue a “final order” that has the effect of “permanently cancell[ing]” sequestered amounts in spending statutes in order to achieve budget compliance) (emphasis added); Pub. L. 104—208, 110 Stat. 3009-695 (“Public Law 89—732 [dealing with immigration from Cuba] is repealed . . . upon a determination by the President . . . that a democratically elected government in Cuba is in power”) (emphasis added); Pub. L. 99—498, §701, 100 Stat. 1532 (amending §758 of the Higher Education Act of 1965) (Secretary of Education “may” sell common stock in an educational loan corporation; if the Secretary decides to sell stock, and “if the Student Loan Marketing Association acquires from the Secretary” over 50 percent of the voting stock, “section 754 [governing composition of the Board of Directors] shall be of no further force or effect”) (emphasis added); Pub. L. 104—134, §2901(c), 110 Stat. 1321—160 (President is “authorized to suspend the provisions of the [preceding] proviso” which suspension may last for entire effective period of proviso, if he determines suspension is “appropriate based upon the public interest in sound environmental management . . . [or] the protection of national or locally-affected interests, or protection of any cultural, biological or historic resources”).
All of these examples, like the Act, delegate a power to take action that will render statutory provisions “without force or effect.” Every one of these examples, like the present Act, delegates the power to choose between alternatives, each of which the statute spells out in some detail. None of these examples delegates a power to “repeal” or “amend” a statute, or to “make” a new law. Nor does the Act. Rather, the delegated power to nullify statutory language was itself created and defined by Congress, and included in the statute books on an equal footing with (indeed, as a component part of) the sections that are potentially subject to nullification. As a Pennsylvania court put the matter more than a century ago: “The legislature cannot delegate its power to make a law; but it can make a law to delegate a power.” Locke’s Appeal, 72 Pa. 491, 498 (1873).
In fact, a power to appoint property offers a closer analogy to the power delegated here than one might at first suspect. That is because the Act contains a “lockbox” feature, which gives legal significance to the enactment of a particular appropriations item even if, and even after, the President has rendered it without “force or effect.” See 2 U.S.C. § 691c; see also ante, at 22, n. 31 (describing lockbox); but cf. Letter from Counsel for Snake River Cooperative, dated Apr. 29, 1998 (available in Clerk of Court’s case file) (arguing “lockbox” feature inapplicable here due to special provision in Balanced Budget Act of 1997, the constitutionality and severability of which have not been argued). In essence, the “lockbox” feature: (1) points to a Gramm-Rudman-Hollings Act requirement that, when Congress enacts a “budget-busting” appropriation bill, automatically reduces authorized spending for a host of federal programs in a pro rata way; (2) notes that cancellation of an item (say, a $2 billion item) would, absent the lockbox provision, neutralize (by up to $2 billion) the potential “budget busting” effects of other bills (and therefore potentially the President could cancel items in order to “save” the other programs from the mandatory cuts, resulting no net deficit reduction); and (3) says that this “neutralization” will not occur (i.e., the pro rata reductions will take place just as if the $2 billion item had not been canceled), so that the canceled items truly provide additional budget savings over and above the Gramm-Rudman-Hollings regime. See generally H. R. Conf. Rep. No. 104—491, pp. 23—24 (1996) (lockbox provision included “to ensure that the savings from the cancellation of [items] are devoted to deficit reduction and are not available to offset a deficit increase in another law”). That is why the Government says that the Act provides a “lockbox,” and why it seems fair to say that, despite the Act’s use of the word “cancel,” the Act does not delegate to the President the power truly to cancel a line item expenditure (returning the legal status quo to one in which the item had never been enacted). Rather, it delegates to the President the power to decide how to spend the money to which the line item refers–either for the specific purpose mentioned
the item, or for general deficit reduction via the “lockbox” feature.
These features of the law do not mean that the delegated power is, or is just like, a power to appoint property. But they do mean that it is not, and it is not just like, the repeal or amendment of a law, or, for that matter, a true line item veto (despite the Act’s title). Because one cannot say that the President’s exercise of the power the Act grants is, literally speaking, a “repeal” or “amendment,” the fact that the Act’s procedures differ from the Constitution’s exclusive procedures for enacting (or repealing) legislation is beside the point. The Act itself was enacted in accordance with these procedures, and its failure to require the President to satisfy those procedures does not make the Act unconstitutional.
IV
Because I disagree with the Court’s holding of literal violation, I must consider whether the Act nonetheless violates Separation of Powers principles–principles that arise out of the Constitution’s vesting of the “executive Power” in “a President,” U.S. Const., Art. II, §1, and “[a]ll legislative Powers” in “a Congress,” Art. I, §1. There are three relevant Separation of Powers questions here: (1) Has Congress given the President the wrong kind of power, i.e., “non-Executive” power? (2) Has Congress given the President the power to “encroach” upon Congress’ own constitutionally reserved territory? (3) Has Congress given the President too much power, violating the doctrine of “nondelegation?” These three limitations help assure “adequate control by the citizen’s representatives in Congress,” upon which Justice Kennedy properly insists. See ante, at 3 (concurring opinion). And with respect to this Act, the answer to all these questions is “no.”
A
Viewed conceptually, the power the Act conveys is the right kind of power. It is “executive.” As explained above, an exercise of that power “executes” the Act. Conceptually speaking, it closely resembles the kind of delegated authority–to spend or not to spend appropriations, to change or not to change tariff rates–that Congress has frequently granted the President, any differences being differences in degree, not kind. See Part IV—C, infra.
The fact that one could also characterize this kind of power as “legislative,” say, if Congress itself (by amending the appropriations bill) prevented a provision from taking effect, is beside the point. This Court has frequently found that the exercise of a particular power, such as the power to make rules of broad applicability, American Trucking Assns., Inc. v. United States, 344 U.S. 298, 310—313 (1953), or to adjudicate claims, Crowell v. Benson, 285 U.S., at 50—51, 54; Wiener v. United States, 357 U.S. 349, 354—356 (1958), can fall within the constitutional purview of more than one branch of Government. See Wayman v. Southard, 10 Wheat. 1, 43 (1825) (Marshall, C. J.) (“Congress may certainly delegate to others, powers which the legislature may rightfully exercise itself”). The Court does not “carry out the distinction between legislative and executive action with mathematical precision” or “divide the branches into watertight compartments,” Springer v. Philippine Islands, 277 U.S. 189, 211 (1928) (Holmes, J., dissenting), for, as others have said, the Constitution “blend[s]” as well as “separat[es]” powers in order to create a workable government. 1 K. Davis, Administrative Law §1.09, p. 68 (1958).
The Court has upheld congressional delegation of rulemaking power and adjudicatory power to federal agencies, American Trucking Assns. v. United States, supra, at 310—313; Wiener v. United States, supra, at 354—356, guideline-writing power to a Sentencing Commission, Mistretta v. United States, 488 U.S., at 412, and prosecutor-appointment power to judges, Morrison v. Olson, 487 U.S. 654, 696—697 (1988). It is far easier conceptually to reconcile the power at issue here with the relevant constitutional description (“executive”) than in many of these cases. And cases in which the Court may have found a delegated power and the basic constitutional function of another branch conceptually irreconcilable are yet more distant. See, e.g., Federal Radio Comm’n v. General Elec. Co., 281 U.S. 464 (1930) (power to award radio licenses not a “judicial” power).
If there is a Separation of Powers violation, then, it must rest, not upon purely conceptual grounds, but upon some important conflict between the Act and a significant Separation of Powers objective.
B
The Act does not undermine what this Court has often described as the principal function of the Separation of Powers, which is to maintain the tripartite structure of the Federal Government–and thereby protect individual liberty–by providing a “safeguard against the encroachment or aggrandizement of one branch at the expense of the other.” Buckley v. Valeo, 424 U.S. 1, 122 (1976) (per curiam); Mistretta v. United States, supra, at 380—382. See The Federalist No. 51, p. 349 (J. Cooke ed. 1961) (J. Madison) (separation of powers confers on each branch the means “to resist encroachments of the others”); 1 Davis, supra, §1.09, at 68 (“The danger is not blended power . . . [t]he danger is unchecked power”); see also, e.g., Bowsher v. Synar, 478 U.S. 714 (1986) (invalidating congressional intrusion on Executive Branch); Northern Pipeline Constr. Co. v. Marathon Pipe Line Co., 458 U.S. 50 (1982) (Congress may not give away Article III “judicial” power to an Article I judge); Myers v. United States, 272 U.S. 52 (1926) (Congress cannot limit President’s power to remove Executive Branch official).
In contrast to these cases, one cannot say that the Act “encroaches” upon Congress’ power, when Congress retained the power to insert, by simple majority, into any future appropriations bill, into any section of any such bill, or into any phrase of any section, a provision that says the Act will not apply. See 2 U.S.C. § 691f(c)(1) (1994 ed., Supp. II); Raines v. Byrd, 521 U.S. ___, ___, (1997) (slip op., at 13) (Congress can “exempt a given appropriations bill (or a given provision in an appropriations bill) from the Act”). Congress also retained the power to “disapprov[e],” and thereby reinstate, any of the President’s cancellations. See 2 U.S. C. §691b(a). And it is Congress that drafts and enacts the appropriations statutes that are subject to the Act in the first place–and thereby defines the outer limits of the President’s cancellation authority. Thus this Act is not the sort of delegation “without . . . sufficient check” that concerns Justice Kennedy. See ante, at 3 (concurring opinion). Indeed, the President acts only in response to, and on the terms set by, the Congress.
Nor can one say that the Act’s basic substantive objective is constitutionally improper, for the earliest Congresses could have, see Part II, supra, and often did, confer on the President this sort of discretionary authority over spending, see ante, at 15 (Scalia, J., concurring in part and dissenting in part). Cf. J. W. Hampton, 276 U.S., at 412 (Taft, C. J.) (“contemporaneous legislative exposition of the Constitution when the founders of our Government and the framers of our Constitution were actively participating in public affairs . . . fixes the construction to be given to its provisions”). And, if an individual Member of Congress, who say, favors aid to Country A but not to Country B, objects to the Act on the ground that the President may “rewrite” an appropriations law to do the opposite, one can respond, “But a majority of Congress voted that he have that power; you may vote to exempt the relevant appropriations provision from the Act; and if you command a majority, your appropriation is safe.” Where the burden of overcoming legislative inertia lies is within the power of Congress to determine by rule. Where is the encroachment?
Nor can one say the Act’s grant of power “aggrandizes” the Presidential office. The grant is limited to the context of the budget. It is limited to the power to spend, or not to spend, particular appropriated items, and the power to permit, or not to permit, specific limited exemptions from generally applicable tax law from taking effect. These powers, as I will explain in detail, resemble those the President has exercised in the past on other occasions. See Part IV—C, infra. The delegation of those powers to the President may strengthen the Presidency, but any such change in Executive Branch authority seems minute when compared with the changes worked by delegations of other kinds of authority that the Court in the past has upheld. See, e.g., American Trucking Assns., Inc. v. United States, 344 U.S. 298 (1953) (delegation of rulemaking authority); Lichter v. United States, 334 U.S. 742 (1948) (delegation to determine and regulate “excessive” profits); Crowell v. Benson, 285 U.S. 22 (1932) (delegation of adjudicatory authority); Commodity Futures Trading Comm’n v. Schor, 478 U.S. 833 (1986) (same).
C
The “nondelegation” doctrine represents an added constitutional check upon Congress’ authority to delegate power to the Executive Branch. And it raises a more serious constitutional obstacle here. The Constitution permits Congress to “see[k] assistance from another branch” of Government, the “extent and character” of that assistance to be fixed “according to common sense and the inherent necessities of the governmental co-ordination.” J. W. Hampton, Jr., & Co. v. United States, 276 U.S., at 406. But there are limits on the way in which Congress can obtain such assistance; it “cannot delegate any part of its legislative power except under the limitation of a prescribed standard.” United States v. Chicago, M., St. P. & P. R. Co., 282 U.S. 311, 324 (1931). Or, in Chief Justice Taft’s more familiar words, the Constitution permits only those delegations where Congress “shall lay down by legislative act an intelligible principle to which the person or body authorized to [act] is directed to conform.” J. W. Hampton, supra, at 409 (emphasis added).
The Act before us seeks to create such a principle in three ways. The first is procedural. The Act tells the President that, in “identifying dollar amounts [or] . . . items. . . for cancellation” (which I take to refer to his selection of the amounts or items he will “prevent from having legal force or effect”), he is to “consider,” among other things,
“the legislative history, construction, and purposes of the law which contains [those amounts or items, and] . . . any specific sources of information referenced in such law or . . . the best available information . . . .” 2 U.S.C. § 691(b) (1994 ed., Supp. II).
The second is purposive. The clear purpose behind the Act, confirmed by its legislative history, is to promote “greater fiscal accountability” and to “eliminate wasteful federal spending and . . . special tax breaks.” H. R. Conf. Rep. No. 104—491, p. 15 (1996).
The third is substantive. The President must determine that, to “prevent” the item or amount “from having legal force or effect” will “reduce the Federal budget deficit; . . . not impair any essential Government functions; and . . . not harm the national interest.” 2 U.S.C. § 691(a)(A) (1994 ed., Supp. II).
The resulting standards are broad. But this Court has upheld standards that are equally broad, or broader. See, e.g., National Broadcasting Co. v. United States, 319 U.S. 190, 225—226 (1943) (upholding delegation to Federal Communications Commission to regulate broadcast licensing as “public interest, convenience, or necessity” require) (internal quotation marks omitted); FPC v. Hope Natural Gas Co., 320 U.S. 591, 600—603 (1944) (upholding delegation to Federal Power Commission to determine “just and reasonable” rates); United States v. Rock Royal Co-operative, Inc., 307 U.S. 533, 577 (1939) (if milk prices were “unreasonable,” Secretary could “fi[x]” prices to a level that was “in the public interest”). See also Lichter v. United States, 334 U.S. 742, 785—786 (1948) (delegation of authority to determine “excessive” profits); American Power & Light Co. v. SEC, 329 U.S. 90, 104—105 (1946) (delegation of authority to SEC to prevent “unfairly or inequitably” distributing voting power among security holders); Yakus v. United States, 321 U.S. 414, 427 (1944) (upholding delegation to Price Administrator to fix commodity prices that would be “fair” and “equitable”).
Indeed, the Court has only twice in its history found that a congressional delegation of power violated the “nondelegation” doctrine. One such case, Panama Refining Co. v. Ryan, 293 U.S. 388 (1935), was in a sense a special case, for it was discovered in the midst of the case that the particular exercise of the power at issue, the promulgation of a Petroleum Code under the National Industrial Recovery Act, did not contain any legally operative sentence. Id., at 412—413. The other case, A. L. A. Schechter Poultry Corp. v. United States, 295 U.S. 495 (1935), involved a delegation through the National Industrial Recovery Act, 48 Stat. 195, that contained not simply a broad standard (“fair competition”), but also the conferral of power on private parties to promulgate rules applying that standard to virtually all of American industry. Id., at 521—525. As Justice Cardozo put it, the legislation exemplified “delegation running riot,” which created a “roving commission to inquire into evils and upon discovery correct them.” Id., at 553, 551 (concurring opinion).
The case before us does not involve any such “roving commission,” nor does it involve delegation to private parties, nor does it bring all of American industry within its scope. It is limited to one area of government, the budget, and it seeks to give the President the power, in one portion of that budget, to tailor spending and special tax relief to what he concludes are the demands of fiscal responsibility. Nor is the standard that governs his judgment, though broad, any broader than the standard that currently governs the award of television licenses, namely “public convenience, interest, or necessity.” 47 U.S. C. §303 (emphasis added). To the contrary, (a) the broadly phrased limitations in the Act, together with (b) its evident deficit reduction purpose, and (c) a procedure that guarantees Presidential awareness of the reasons for including a particular provision in a budget bill, taken together, guide the President’s exercise of his discretionary powers.
1
The relevant similarities and differences among and between this case and other “nondelegation” cases can be listed more systematically as follows: First, as I have just said, like statutes delegating power to award broadcast television licenses, or to regulate the securities industry, or to develop and enforce workplace safety rules, the Act is aimed at a discrete problem: namely, a particular set of expenditures within the federal budget. The Act concerns, not the entire economy, cf. Schecter Poultry Corp., supra, but the annual federal budget. Within the budget it applies only to discretionary budget authority and new direct spending items, that together amount to approximately a third of the current annual budget outlays, see Tr. of Oral Arg. 18; see also Budget 303, and to “limited tax benefits” that (because each can affect no more than 100 people, see 2 U.S.C. § 691e(9)(A) (1994 ed., Supp. II)), amount to a tiny fraction of federal revenues and appropriations. Compare Analytical Perspectives 73—75 (1997) (listing over $500 billion in overall “tax expenditures” that OMB estimated were contained in federal law in 1997) and Budget 303 (federal outlays and receipts in 1997 were both over $1.5 trillion) with App. to Juris. Statement 71a (President’s cancellation message for Snake River appellees’ limited tax benefit, estimating annual “value” of benefit, in terms of revenue loss, at about $20 million).
Second, like the award of television licenses, the particular problem involved–determining whether or not a particular amount of money should be spent or whether a particular dispensation from tax law should be granted a few individuals–does not readily lend itself to a significantly more specific standard. The Act makes clear that the President should consider the reasons for the expenditure, measure those reasons against the desirability of avoiding a deficit (or building a surplus) and make up his mind about the comparative weight of these conflicting goals. Congress might have expressed this matter in other language, but could it have done so in a significantly more specific way? See National Broadcasting Co. v. United States, 319 U.S., at 216 (“[P]ublic interest, convenience, or necessity” standard is “ ‘as concrete as the complicated factors for judgment in such a field of delegated authority permit’ ”) (quoting FCC v. Pottsville Broadcasting Co., 309 U.S. 134, 138 (1940)). The statute’s language, I believe, is sufficient to provide the President, and the public, with a fairly clear idea as to what Congress had in mind. And the public can judge the merits of the President’s choices accordingly. Cf. Yakus v. United States, supra, 321 U.S., at 426 (standards were “sufficiently definite and precise to enable . . . the public to ascertain . . . conform[ity]”).
Third, in insofar as monetary expenditure (but not “tax expenditure”) is at issue, the President acts in an area where history helps to justify the discretionary power that Congress has delegated, and where history may inform his exercise of the Act’s delegated authority. Congress has frequently delegated the President the authority to spend, or not to spend, particular sums of money. See, e.g., Act of Sept. 29, 1789, ch. 23, §1, 1 Stat. 95; Act of Mar. 26, 1790, ch. 4, §1, 1 Stat. 104; Act of Feb. 11, 1791, ch. 6, 1 Stat. 190; Emergency Relief Appropriation Act of 1935, 49 Stat. 115 (appropriating over $4 billion to be spent “in the discretion and under the direction of the President” for economic relief measures); see also ante, at 15—16 (Scalia, J., concurring in part and dissenting in part) (listing numerous examples).
Fourth, the Constitution permits Congress to rely upon context and history as providing the necessary standard for the exercise of the delegated power. See, e.g., Federal Radio Comm’n v. Nelson Brothers Bond & Mortgage Co. (Station WIBO), 289 U.S. 266, 285 (1933) (“public interest, convenience, or necessity [standard] . . . is to be interpreted by its context”); Fahey v. Mallonee, 332 U.S. 245, 253 (1947) (otherwise vague delegation to regulate banks was “sufficiently explicit, against the background of custom, to be adequate”). Relying upon context, Congress has sometimes granted the President broad discretionary authority over spending in laws that mention no standard at all. See, e.g., Act of Mar. 3, 1809, ch. 28, §1, 2 Stat. 535—536 (granting the President recess authority to transfer money “appropriated for a particular branch of expenditure in [a] department” to be “applied [instead] to another branch of expenditure in the same department”); Revenue and Expenditure Control Act of 1968, Pub. L. 90—364, §§202(b), 203(b), 82 Stat. 271—272; (authorizing the President annually to reserve up to $6 billion in outlays and $10 billion in new obligation authority); Second Supplemental Appropriations Act, 1969, Pub. L. 91—47, §401, 83 Stat. 82; Second Supplemental Appropriations Act, 1970, Pub. L. 91—305, §§401, 501, 84 Stat. 405—407. In this case, too, context and purpose can give meaning to highly general language. See Federal Radio Commn. v. Nelson Bros., supra, at 285; Fahey v. Malonee, supra, at 250—253; cf. Lichter v. United States, 334 U.S., at 777 (Congress has “at least expressed . . . satisfaction with the existing specificity of the Act”); Train v. City of New York, 420 U.S. 35, 44—47 (1975) (disallowing President Nixon’s efforts to impound funds because Court found Congress did not intend him to exercise the power in that instance).
On the other hand, I must recognize that there are important differences between the delegation before us and other broad, constitutionally-acceptable delegations to Executive Branch agencies–differences that argue against my conclusion. In particular, a broad delegation of authority to an administrative agency differs from the delegation at issue here in that agencies often develop subsidiary rules under the statute, rules that explain the general “public interest” language. Doing so diminishes the risk that the agency will use the breadth of a grant of authority as a cloak for unreasonable or unfair implementation. See 1 K. Davis, Administrative Law §3:15, pp. 207—208 (2d ed. 1978). Moreover, agencies are typically subject to judicial review, which review provides an additional check against arbitrary implementation. See, e.g., Motor Vehicle Mfrs. Assn. of United States, Inc. v. State Farm Mut. Automobile Ins. Co., 463 U.S. 29, 40—42 (1983). The President has not so narrowed his discretionary power through rule, nor is his implementation subject to judicial review under the terms of the Administrative Procedure Act. See, e.g., Franklin v. Massachusetts, 505 U.S. 788, 801 (1992) (APA does not apply to President absent express statement by Congress).
While I believe that these last-mentioned considerations are important, they are not determinative. The President, unlike most agency decisionmakers, is an elected official. He is responsible to the voters, who, in principle, will judge the manner in which he exercises his delegated authority. Whether the President’s expenditure decisions, for example, are arbitrary is a matter that in the past has been left primarily to those voters to consider. And this Court has made clear that judicial review is less appropriate when the President’s own discretion, rather than that of an agency, is at stake. See Dalton v. Specter, 511 U.S. 462, 476 (1994) (Presidential decision on military base closure recommendations not reviewable; President could “approv[e] or disapprov[e] the recommendations for whatever reason he sees fit”); Franklin, 505 U.S., at 801 (President’s decision whether or not to transmit census report to Congress was unreviewable by courts for abuse of discretion); cf. id., at 799—800 (it was “important to the integrity of the process” that the decision was made by the President, a “constitutional officer” as opposed to the unelected Secretary of Commerce). These matters reflect in part the Constitution’s own delegation of “executive Power” to “a President,” U.S. Const., Art. II, §1, cf. Clinton v. Jones, 520 U.S. ___, ___, (1997) (slip op., at 1—2) (Breyer, J., concurring in judgment) (discussing unitary executive), and we must take this into account when applying the Constitution’s nondelegation doctrine to questions of Presidential authority.
Consequently I believe that the power the Act grants the President to prevent spending items from taking effect does not violate the “nondelegation” doctrine.
2
Most, but not all, of the considerations mentioned in the previous subsection apply to the Act’s delegation to the President of the authority to prevent “from having legal force or effect” a “limited tax benefit,” which term the Act defines in terms of special tax relief for fewer than 100 (or in some instances 10) beneficiaries, which tax relief is not available to others who are somewhat similarly situated. 2 U.S.C. § 691e(9) (1994 ed., Supp. II). There are, however, two related significant differences between the “limited tax benefit” and the spending items considered above, which make the “limited tax benefit” question more difficult. First, the history is different. The history of Presidential authority to pick and to choose is less voluminous. Second, the subject matter (increasing or decreasing an individual’s taxes) makes the considerations discussed at the end of the last section (i.e., the danger of an arbitrary exercise of delegated power) of greater concern. But these differences, in my view, are not sufficient to change the “nondelegation” result.
For one thing, this Court has made clear that the standard we must use to judge whether a law violates the “nondelegation” doctrine is the same in the tax area as in any other. In Skinner v. Mid-America Pipeline Co., 490 U.S. 212 (1989), the Court considered whether Congress, in the exercise of its taxing power, could delegate to the Secretary of Transportation the authority to establish a system of pipeline user fees. In rejecting the argument that the “fees” were actually a “tax,” and that the law amounted to an unconstitutional delegation of Congress’ own power to tax, the unanimous Court said that:
“From its earliest days to the present, Congress, when enacting tax legislation, has varied the degree of specificity and the consequent degree of discretionary authority delegated to the Executive . . . . We find no support … for [the] contention that the text of the Constitution or the practices of Congress require the application of a different and stricter nondelegation doctrine in cases where Congress delegates discretionary authority to the Executive under its taxing power. . . . Even if the user fees are a form of taxation, we hold that the delegation of discretionary authority under Congress’ taxing power is subject to no constitutional scrutiny greater than that we have applied to other nondelegation challenges. Congress may wisely choose to be more circumspect in delegating authority under the Taxing Clause than under other of its enumerated powers, but this is not a heightened degree of prudence required by the Constitution.” Id., at 221—223.
For another thing, this Court has upheld tax statutes that delegate to the President the power to change taxes under very broad standards. In 1890, for example, Congress authorized the President to “suspend” the provisions of the tariff statute, thereby raising tariff rates, if the President determined that other nations were imposing “reciprocally unequal and unreasonable” tariff rates on specialized commodities. Act of Oct. 1, 1890, ch. 1244, §3, 26 Stat. 612. And the Court upheld the statute against constitutional attack. Field v. Clark, 143 U.S., at 693—694 (“no valid objection can be made” to such statutes “conferring authority or discretion” on the President) (internal quotation marks omitted); see also Act of Dec. 19, 1806, ch. 1, 2 Stat. 411 (President “authorized” to “suspend the operation of” a customs law “if in his judgment the public interest should require it”); Act of June 4, 1794, ch. 41, §1, 1 Stat. 372 (empowering President to lay an embargo on ships in ports “whenever, in his opinion, the public safety shall so require” and to revoke related regulations “whenever he shall think proper”). In 1922 Congress gave the President the authority to adjust tariff rates to “equalize” the differences in costs of production at home and abroad, see Tariff Act of 1922, ch. 356, §315(a), 42 Stat. 941—942. The Court also upheld this delegation against constitutional attack. See J. W. Hampton, Jr., & Co. v. United States, 276 U.S. 394 (1928).
These statutory delegations resemble today’s Act more closely than one might at first suspect. They involve a duty on imports, which is a tax. That tax in the last century was as important then as the income tax is now, for it provided most of the Federal Government’s revenues. See U.S. Dept. of Commerce, Census Bureau, Historical Statistics of the United States: Colonial Times to 1970, pt. 2, at 1106 (in 1890, when Congress passed the statute at issue in Field, tariff revenues were 57% of the total receipts of the Federal Government). And the delegation then thus affected a far higher percentage of federal revenues than the tax-related delegation over extremely “limited” tax benefits here. See supra, at 18—19.
The standards at issue in these earlier laws, such as “unreasonable,” were frequently vague and without precise meaning. See, e.g., Act of Oct. 1, 1890, §3, 26 Stat. 612. Indeed, the word “equalize” in the 1922 statute, 42 Stat. 942, could not have been administered as if it offered the precision it seems to promise, for a tariff that literally “equalized” domestic and foreign production costs would, because of transport costs, have virtually ended foreign trade.
Nor can I accept the majority’s effort to distinguish these examples. The majority says that these statutes imposed a specific “duty” upon the President to act upon the occurrence of a specified event. See ante, at 25. But, in fact, some of the statutes imposed no duty upon the President at all. See, e.g., Act of Dec. 19, 1806, ch. 1, 2 Stat. 411 (President “authorized” to “suspend the operation of” a customs law “if in his judgment the public interest should require it”). Others imposed a “duty” in terms so vague as to leave substantial discretion in the President’s hands. See Act of Oct. 1, 1890, 26 Stat. 612 (President’s “duty” to suspend tariff law was triggered “whenever” and “so often as” he was “satisfied” that “unequal and unreasonable” rates were imposed); see also Field v. Clark, supra, at 691 (historically in the flexible tariff statutes Congress has “invest[ed] the President with large discretion”).
The majority also tries to distinguish these examples on the ground that the President there executed congressional policy while here he rejects that policy. See ante, at 24—29. The President here, however, in exercising his delegated authority does not reject congressional policy. Rather, he executes a law in which Congress has specified its desire that the President have the very authority he has exercised. See Part III, supra.
The majority further points out that these cases concern imports, an area that, it says, implicates foreign policy and therefore justifies an unusual degree of discretion by the President. See ante, at 27. Congress, however, has not limited its delegations of taxation authority to the “foreign policy” arena. The first Congress gave the Secretary of the Treasury the “power to mitigate or remit” statutory penalties for nonpayment of liquor taxes “upon such terms and conditions as shall appear to him reasonable.” Act of Mar. 3, 1791, ch. 15, §43, 1 Stat. 209. A few years later, the Secretary was authorized, in lieu of collecting the stamp duty enacted by Congress, “to agree to an annual composition for the amount of such stamp duty, with any of the said banks, of one per centum on the amount of the annual dividend made by such banks.” Act of July 6, 1797, ch. 11, §2, 1 Stat. 528. More recently, Congress has given to the Executive Branch the authority to “prescribe all needful rules and regulations for the enforcement of [the Internal Revenue Code], including all rules and regulations as may be necessary by reason of any alteration of law in relation to internal revenue.” 26 U.S.C. § 7805(a). And the Court has held that such rules and regulations, “which undoubtedly affect individual taxpayer liability, are . . . without doubt the result of entirely appropriate delegations of discretionary authority by Congress.” Skinner v. Mid-America Pipeline Co., 490 U.S., at 222. I do not believe the Court would hold the same delegations at issue in J. W. Hampton and Field unconstitutional were they to arise in a more obviously domestic area.
Finally, the tax-related delegation is limited in ways that tend to diminish any widespread risk of arbitrary Presidential decisionmaking:
(1) The Act does not give the President authority to change general tax policy. That is because the limited tax benefits are defined in terms of deviations from tax policy, i.e., special benefits to fewer than 100 individuals. See 2 U.S.C. § 691e(9)(A)(i) (1994 ed., Supp. II); see also Analytical Perpectives 84 (defining “tax expenditure” as “a preferential exception to the baseline provisions of the tax structure”).
(2) The Act requires the President to make the same kind of policy judgment with respect to these special benefits as with respect to items of spending. He is to consider the budget as a whole, he is to consider the particular history of the tax benefit provision, and he is to consider whether the provision is worth the loss of revenue it causes in the same way that he must decide whether a particular expenditure item is worth the added revenue that it requires. See supra, at 16.
(3) The delegated authority does not destroy any individual’s expectation of receiving a particular benefit, for the Act is written to say to the small group of taxpayers who may receive the benefit, “Taxpayers, you will receive an exemption from ordinary tax laws, but only if the President decides the budgetary loss is not too great.”
(4) The “limited tax benefit” provisions involve only a small part of the federal budget, probably less than one percent of total annual outlays and revenues. Compare Budget 303 (federal outlays and receipts in 1997 were both over $1.5 trillion) with App. to Juris. Statement 71a (President’s cancellation message for Snake River appellees’ limited tax benefit, estimating annual “value” of benefit, in terms of revenue loss, at about $20 million) and Taxpayer Relief Act of 1997, §1701, 111 Stat. 1099 (identifying only 79 “limited tax benefits” subject to cancellation in the entire tax statute).
(5) Because the “tax benefit” provisions are part and parcel of the budget provisions, and because the Act in defining them, focuses upon “revenue-losing” tax provisions, 2 U.S.C. § 691e(9)(A)(i) (1994 ed., Supp. II), it regards “tax benefits” as if they were a special kind of spending, namely spending that puts back into the pockets of a small group of taxpayers, money that “baseline” tax policy would otherwise take from them. There is, therefore, no need to consider this provision as if it represented a delegation of authority to the President, outside the budget expenditure context, to set major policy under the federal tax laws. But cf. Skinner v. Mid-America Pipeline, supra, at 222—223 (no “different and stricter” nondelegation doctrine in the taxation context). Still less does approval of the delegation in this case, given the long history of Presidential discretion in the budgetary context, automatically justify the delegation to the President of the authority to alter the effect of other laws outside that context.
The upshot is that, in my view, the “limited tax benefit” provisions do not differ enough from the “spending” provisions to warrant a different “nondelegation” result.
V
In sum, I recognize that the Act before us is novel. In a sense, it skirts a constitutional edge. But that edge has to do with means, not ends. The means chosen do not amount literally to the enactment, repeal, or amendment of a law. Nor, for that matter, do they amount literally to the “line item veto” that the Act’s title announces. Those means do not violate any basic Separation of Powers principle. They do not improperly shift the constitutionally foreseen balance of power from Congress to the President. Nor, since they comply with Separation of Powers principles, do they threaten the liberties of individual citizens. They represent an experiment that may, or may not, help representative government work better. The Constitution, in my view, authorizes Congress and the President to try novel methods in this way. Consequently, with respect, I dissent.
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Part 4 of 4
Opinion of Scalia, J.
SUPREME COURT OF THE UNITED STATES
No. 97—1374
WILLIAM J. CLINTON, PRESIDENT OF THE UNITED
STATES, et al., APPELLANTS v. CITY OF
NEW YORK et al.
ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
[June 25, 1998]
Justice Scalia, with whom Justice O’Connor joins, and with whom Justice Breyer joins as to Part III, concurring in part and dissenting in part.
Today the Court acknowledges the “ ‘overriding and time-honored concern about keeping the Judiciary’s power within its proper constitutional sphere,’ ” ante, at 1—2, quoting Raines v. Byrd, 521 U.S. ___, ___ (1997) (slip op., at 8). It proceeds, however, to ignore the prescribed statutory limits of our jurisdiction by permitting the expedited-review provisions of the Line Item Veto Act to be invoked by persons who are not “individual[s],” 2 U.S.C. § 692 (1994 ed., Supp. II); and to ignore the constitutional limits of our jurisdiction by permitting one party to challenge the Government’s denial to another party of favorable tax treatment from which the first party might, but just as likely might not, gain a concrete benefit. In my view, the Snake River appellees lack standing to challenge the President’s cancellation of the “limited tax benefit,” and the constitutionality of that action should not be addressed. I think the New York appellees have standing to challenge the President’s cancellation of an “item of new direct spending”; I believe we have statutory authority (other than the expedited-review provision) to address that challenge; but unlike the Court I find the President’s cancellation of spending items to be entirely in accord with the Constitution.
I
The Court's unrestrained zeal to reach the merits of this case is evident in its disregard of the statute’s expedited-review provision, which extends that special procedure to “[a]ny Member of Congress or any individual adversely affected by [the Act],” §692. With the exception of Mike Cranney, a natural person, the appellees–corporations, cooperatives, and governmental entities–are not “individuals” under any accepted usage of that term. Worse still, the first provision of the United States Code confirms that insofar as this word is concerned, Congress speaks English like the rest of us: “In determining the meaning of any Act of Congress, unless the context indicates otherwise … the wor[d] ‘person’ … include[s] corporations, companies, associations, firms, partnerships, societies, and joint stock companies, as well as individuals.” 1 U.S.C. § 1 (emphasis added). And doubly worse, one of the definitional provisions of this very Act expressly distinguishes “individuals” from “persons.” A tax law does not create a “limited tax benefit,” it says, so long as
“any difference in the treatment of persons is based solely on–
“(I) in the case of businesses and associations, the size or form of the business or association involved;
“(II) in the case of individuals, general demographic conditions, such as income, marital status, number of dependents, or tax return filing status … .” 2 U.S.C. § 691e(9)(B)(iii) (1994 ed., Supp. II) (emphasis added).
The Court majestically sweeps the plain language of the statute aside, declaring that “[t]here is no plausible reason why Congress would have intended to provide for such special treatment of actions filed by natural persons and to have precluded entirely jurisdiction over comparable cases brought by corporate persons.” Ante, at 10. Indeed, the Court says, it would be “absurd” for Congress to have done so. Ibid. But Congress treats individuals more favorably than corporations and other associations all the time. There is nothing whatever extraordinary–and surely nothing so bizarre as to permit this Court to declare a “scrivener’s error”–in believing that individuals will suffer more seriously from delay in the receipt of “vetoed” benefits or tax savings than corporations will, and therefore according individuals (but not corporations) expedited review. It may be unlikely that this is what Congress actually had in mind; but it is what Congress said, it is not so absurd as to be an obvious mistake, and it is therefore the law.
The only individual who has sued, and thus the only appellee who qualifies for expedited review under §692, is Mike Cranney. Since §692 does not confer jurisdiction over the claims of the other appellees, we must dismiss them, unless we have jurisdiction under another statute. In their complaints, appellees sought declaratory relief not only under §692(a), but also under the Declaratory Judgment Act, 28 U.S.C. § 2201 invoking the District Court’s jurisdiction under 28 U.S.C. § 1331. After the District Court ruled, the Government appealed directly to this Court, but it also filed a notice of appeal to the Court of Appeals for the District of Columbia. In light of the Government’s representation that it desires “[t]o eliminate any possibility that the district court’s decision might escape review,” Reply Brief for Appellants 2, n. 1, I would deem its appeal to this Court a petition for writ of certiorari before judgment, see 28 U.S.C. § 2101(e), and grant it. Under this Court’s Rule 11, “[a] petition for a writ of certiorari to review a case pending in a United States court of appeals, before judgment is entered in that court, will be granted only upon a showing that the case is of such imperative public importance as to justify deviation from normal appellate practice and to require immediate determination in this Court.” In light of the public importance of the issues involved, and the little sense it would make for the Government to pursue its appeal against one appellee in this Court and against the others in the Court of Appeals, the entire case, in my view, qualifies for certiorari review before judgment.
II
Not only must we be satisfied that we have statutory jurisdiction to hear this case; we must be satisfied that we have jurisdiction under Article III. “To meet the standing requirements of Article III, ‘[a] plaintiff must allege personal injury fairly traceable to the defendant’s allegedly unlawful conduct and likely to be redressed by the requested relief.’ ” Raines, 521 U.S., at ___ (slip op., at 6), quoting Allen v. Wright, 468 U.S. 737, 751 (1984).
In the first action before us, appellees Snake River Potato Growers, Inc. (Snake River) and Mike Cranney, Snake River’s Director and Vice-Chairman, challenge the constitutionality of the President’s cancellation of §968 of the Taxpayer Relief Act of 1997. The Snake River appellees have standing, in the Court’s view, because §968 gave them “the equivalent of a statutory ‘bargaining chip,’ ” and “[b]y depriving them of their statutory bargaining chip, the cancellation inflicted a sufficient likelihood of economic injury to establish standing under our precedents.” Ante, at 13, 14. It is unclear whether the Court means that deprivation of a “bargaining chip” itself suffices for standing, or that such deprivation suffices in the present case because it creates a likelihood of economic injury. The former is wrong as a matter of law, and the latter is wrong as a matter of fact, on the facts alleged.
For the proposition that “a denial of a benefit in the bargaining process” can suffice for standing the Court relies in a footnote, see ante, at 15, n. 22, on Northeastern Fla. Chapter, Associated Gen. Contractors of America v. Jacksonville, 508 U.S. 656 (1993). There, an association of contractors alleged that a city ordinance according racial preferences in the award of city contracts denied its members equal protection of the laws. Id., at 658—659. The association’s members had regularly bid on and performed city contracts, and would have bid on designated set-aside contracts but for the ordinance. Id., at 659. We held that the association had standing even without proof that its members would have been awarded contracts absent the challenged discrimination. The reason, we explained, is that “[t]he ‘injury in fact’ in an equal protection case of this variety is the denial of equal treatment resulting from the imposition of the barrier, not the ultimate inability to obtain the benefit.” Id., at 666, citing two earlier equal protection cases, Turner v. Fouche, 396 U.S. 346, 362 (1970), and Richmond v. J. A. Croson Co., 488 U.S. 469, 493 (1989). In other words, Northeastern Florida did not hold, as the Court suggests, that harm to one’s bargaining position is an “injury in fact,” but rather that, in an equal protection case, the denial of equal treatment is. Inasmuch as Snake River does not challenge the Line Item Veto Act on equal-protection grounds, Northeastern Florida is inapposite. And I know of no case outside the equal-protection field in which the mere detriment to one’s “bargaining position,” as opposed to a demonstrated loss of some bargain, has been held to confer standing. The proposition that standing is established by the mere reduction in one’s chances of receiving a financial benefit is contradicted by Simon v. Eastern Ky. Welfare Rights Organization, 426 U.S. 26 (1976), which held that low-income persons who had been denied treatment at local hospitals lacked standing to challenge an Internal Revenue Service (IRS) ruling that reduced the amount of charitable care necessary for the hospitals to qualify for tax-exempt status. The situation in that case was strikingly similar to the one before us here: the denial of a tax benefit to a third party was alleged to reduce the chances of a financial benefit to the plaintiffs. And standing was
denied.
But even if harm to one’s bargaining position were a legally cognizable injury, Snake River has not alleged, as it must, facts sufficient to demonstrate that it personally has suffered that injury. See Warth v. Seldin, 422 U.S. 490, 502 (1975). In Eastern Ky. Welfare Rights, supra, the plaintiffs at least had applied for the financial benefit which had allegedly been rendered less likely of receipt; the present suit, by contrast, resembles a complaint asserting that the plaintiff’s chances of winning the lottery were reduced, filed by a plaintiff who never bought a lottery ticket, or who tore it up before the winner was announced. Snake River has presented no evidence to show that it was engaged in bargaining, and that that bargaining was impaired by the President’s cancellation of §968. The Court says that Snake River “was engaged in ongoing negotiations with the owner of a processing plant who had expressed an interest in structuring a tax-deferred sale when the President canceled §968,” ante, at 13. There is, however, no evidence of “negotiations,” only of two “discussions.” According to the affidavit of Mike Cranney:
“On or about May 1997, I spoke with Howard Phillips, the principal owner of Idaho Potato Packers, concerning the possibility that, if the Cooperative Tax Act were passed, Snake River Potato Growers might purchase a Blackfoot, Idaho processing facility in a transaction that would allow the deferral of gain. Mr. Phillips expressed an interest in such a transaction if the Cooperative Tax Act were to pass. Mr. Phillips also acknowledged to me that Jim Chapman, our General Manager, had engaged him in a previous discussion concerning this matter.” App. 112.
This affidavit would have set forth something of significance if it had said that Phillips had expressed an interest in the transaction “if and only if the Cooperative Tax Act were to pass.” But of course it is most unlikely he said that; Idaho Potato Packers (IPP) could get just as much from the sale without the Act as with the Act, so long as the price was right. The affidavit would also have set forth something of significance if it had said that Phillips had expressed an interest in the sale “at a particular price if the Cooperative Tax Act were to pass.” But it does not say that either. Nor does it even say that the President's action caused IPP to reconsider. Moreover, it was Snake River, not IPP, that terminated the discussions. According to Cranney, “[t]he President’s cancellation of the Cooperative Tax Act caused me to terminate discussions with Phillips about the possibility of Snake River Potato Growers buying the Idaho Potato Packers facility,” App. 114. So all we know from the record is that Snake River had two discussions with IPP concerning the sale of its processing facility on the tax deferred basis the Act would allow; that IPP was interested; and that Snake River ended the discussions after the President’s action. We do not know that Snake River was prepared to offer a price–tax deferral or no–that would cross IPP’s laugh threshold. We do not even know for certain that the tax deferral was a significant attraction to IPP; we know only that Cranney thought it was. On these facts–which never even bring things to the point of bargaining–it is pure conjecture to say that Snake River suffered an impaired bargaining position. As we have said many times, conjectural or hypothetical injuries do not suffice for Article III standing. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992).
Nor has Snake River demonstrated, as the Court finds, that “the cancellation inflicted a sufficient likelihood of economic injury to establish standing under our precedents.” Ante, at 14. Presumably the economic injury the Court has in mind is Snake River’s loss of a bargain purchase of a processing plant. But there is no evidence, and indeed not even an allegation, that before the President’s action such a purchase was likely. The most that Snake River alleges is that the President's action rendered it “more difficult for plaintiffs to purchase qualified processors,” App. 12. And even if that abstract “increased difficulty” sufficed for injury-in-fact (which it does not), the existence of even that is pure speculation. For all that appears, no owner of a processing plant would have been willing to sell to Snake River at any price that Snake River could afford–and the impossible cannot be made “more difficult.” All we know is that a potential seller was “interested” in talking about the subject before the President’s action, and that after the President’s action Snake River itself decided to proceed no further. If this establishes a “likelihood” that Snake River would have made a bargain purchase but for the President’s action, or even a “likelihood” that the President’s action rendered “more difficult” a purchase that was realistically within Snake River’s grasp, then we must adopt for our standing jurisprudence a new definition of likely: “plausible.”
Twice before have we addressed whether plaintiffs had standing to challenge the Government’s tax treatment of a third party, and twice before have we held that the speculative nature of a third party’s response to changes in federal tax laws defeats standing. In Eastern Ky. Welfare Rights, 426 U.S. 26 (1976), we found it “purely speculative whether the denials of service … fairly can be traced to [the IRS’s] ‘encouragement’ or instead result from decisions made by the hospitals without regard to the tax implications.” Id., at 42—43. We found it “equally speculative whether the desired exercise of the court’s remedial powers in this suit would result in the availability to respondents of such services.” Id., at 43. In Allen v. Wright, 468 U.S. 737 (1984), we held that parents of black children attending public schools lacked standing to challenge IRS policies concerning tax exemptions for private schools. The parents alleged, inter alia, that “federal tax exemptions to racially discriminatory private schools in their communities impair their ability to have their public schools desegregated.” Id., at 752—753. We concluded that “the injury alleged is not fairly traceable to the Government conduct … challenge[d] as unlawful,” id., at 757, and that “it is entirely speculative … whether withdrawal of a tax exemption from any particular school would lead the school to change its policies.” Id., at 758. Likewise, here, it is purely speculative whether a tax-deferral would have prompted any sale, let alone one that reflected the tax benefit in the sale price.
The closest case the Court can appeal to as precedent for its finding of standing is Bryant v. Yellen, 447 U.S. 352 (1980). Even on its own terms, Bryant is distinguishable. As that case came to us, it involved a dispute between a class of some 800 landowners in the Imperial Valley, each of whom owned more than 160 acres, and a group of Imperial Valley residents who wished to purchase lands owned by that class. The point at issue was the application to those lands of a statutory provision that forbade delivery of water from a federal reclamation project to irrigable land held by a single owner in excess of 160 acres, and that limited the sale price of any lands so held in excess of 160 acres to a maximum amount, fixed the Secretary of the Interior, based on fair market value in 1929, before the Valley was irrigated by water from the Boulder Canyon Project. Id., at 366—367. That price would of course be “far below [the lands’] current market values,” id., at 367, n. 17. The Court concluded that the would-be purchasers “had a sufficient stake in the outcome of the controversy to afford them standing,” id., at 368. It is true, as the Court today emphasizes, that the purchasers had not presented “detailed information about [their] financial resources,” but the Court thought that unnecessary only because “purchasers of such land would stand to reap significant gains on resale.” Id., at 367, n. 17. Financing, in other words, would be easy to come by. Here, by contrast, not only do we have no notion whether Snake River has the cash in hand to afford IPP’s bottom-line price, but we also have no reason to believe that financing of the purchase will be readily available. Potato processing plants, unlike agricultural land in the Imperial Valley, do not have a readily available resale market. On the other side of the equation, it was also much clearer in Bryant that if the suit came out in the would-be purchasers’ favor, many of the landowners would be willing to sell. The alternative would be withdrawing the land from agricultural production, whereas sale–even at bargain-basement prices for the land–would at least enable recoupment of the cost of improvements, such as drainage systems. Ibid. In the present case, by contrast, we have no reason to believe that IPP is not operating its processing plant at a profit, and will not continue to do so in the future; Snake River has proffered no evidence that IPP or any other processor would surely have sold if only the President had not cancelled the tax deferral. The only uncertainty in Bryant was whether any of the respondents would wind up as buyers of any of the excess land; that seemed probable enough, since “respondents are residents of the Imperial Valley who desire to purchase the excess land for purposes of farming.” Ibid. We have no basis to say that it is “likely” that Snake River would have purchased a processing facility if §968 had not been cancelled.
More fundamentally, however, the reasoning of Bryant should not govern the present case because it represents a crabbed view of the standing doctrine that has been superseded. Bryant was decided at the tail-end of “an era in which it was thought that the only function of the constitutional requirement of standing was ‘to assure that concrete adverseness which sharpens the presentation of issues,’ ” Spencer v. Kemna, 523 U.S. ___, ___ (1998) (slip op., at 9), quoting Baker v. Carr, 369 U.S. 186, 204 (1962). Thus, the Bryant Court ultimately afforded the respondents standing simply because they “had a sufficient stake in the outcome of the controversy,” 447 U.S., at 368, not because they had demonstrated injury in fact, causation and redressability. “That parsimonious view of the function of Article III standing has since yielded to the acknowledgement that the constitutional requirement is a ‘means of “defin[ing] the role assigned to the judiciary in a tripartite allocation of power,” ’ and ‘a part of the basic charter … provid[ing] for the interaction between [the federal] government and the governments of the several States,’ ” Spencer, supra, at ___ (slip op., at 10), quoting Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U.S. 464, 474, 476 (1982). While Snake River in the present case may indeed have enough of a “stake” to assure adverseness, the matter it brings before us is inappropriate for our resolution because its allegations do not establish an injury in fact, attributable to the Presidential action it challenges, and remediable by this Court’s invalidation of that Presidential action.
Because, in my view, Snake River has no standing to bring this suit, we have no jurisdiction to resolve its challenge to the President’s authority to cancel a “limited tax benefit.”
III
I agree with the Court that the New York appellees have standing to challenge the President’s cancellation of §4722(c) of the Balanced Budget Act of 1997 as an “item of new direct spending.” See ante, at 11—12. The tax liability they will incur under New York law is a concrete and particularized injury, fairly traceable to the President’s action, and avoided if that action is undone. Unlike the Court, however, I do not believe that Executive cancellation of this item of direct spending violates the Presentment Clause.
The Presentment Clause requires, in relevant part, that “[e]very Bill which shall have passed the House of Representatives and the Senate, shall, before it becomes a Law, be presented to the President of the United States; If he approve he shall sign it, but if not he shall return it,” U.S. Const., Art. I, §7, cl. 2. There is no question that enactment of the Balanced Budget Act complied with these requirements: the House and Senate passed the bill, and the President signed it into law. It was only after the requirements of the Presentment Clause had been satisfied that the President exercised his authority under the Line Item Veto Act to cancel the spending item. Thus, the Court’s problem with the Act is not that it authorizes the President to veto parts of a bill and sign others into law, but rather that it authorizes him to “cancel”–prevent from “having legal force or effect”–certain parts of duly enacted statutes.
Article I, §7 of the Constitution obviously prevents the President from cancelling a law that Congress has not authorized him to cancel. Such action cannot possibly be considered part of his execution of the law, and if it is legislative action, as the Court observes, “ ‘repeal of statutes, no less than enactment, must conform with Art. I.’ ” Ante, at 19, quoting from INS v. Chadha, 462 U.S. 919, 954 (1983). But that is not this case. It was certainly arguable, as an original matter, that Art. I, §7 also prevents the President from cancelling a law which itself authorizes the President to cancel it. But as the Court acknowledges, that argument has long since been made and rejected. In 1809, Congress passed a law authorizing the President to cancel trade restrictions against Great Britain and France if either revoked edicts directed at the United States. Act of Mar. 1, 1809, §11, 2 Stat. 528. Joseph Story regarded the conferral of that authority as entirely unremarkable in The Orono, 18 F. Cas. 830 (No. 10,585) (CCD Mass. 1812). The Tariff Act of 1890 authorized the President to “suspend, by proclamation to that effect” certain of its provisions if he determined that other countries were imposing “reciprocally unequal and unreasonable” duties. Act of Oct. 1, 1890, §3, 26 Stat. 612. This Court upheld the constitutionality of that Act in Field v. Clark, 143 U.S. 649 (1892), reciting the history since 1798 of statutes conferring upon the President the power to, inter alia, “discontinue the prohibitions and restraints hereby enacted and declared,” id., at 684, “suspend the operation of the aforesaid act,” id., at 685, and “declare the provisions of this act to be inoperative,” id., at 688.
As much as the Court goes on about Art. I, §7, therefore, that provision does not demand the result the Court reaches. It no more categorically prohibits the Executive reduction of congressional dispositions in the course of implementing statutes that authorize such reduction, than it categorically prohibits the Executive augmentation of congressional dispositions in the course of implementing statutes that authorize such augmentation–generally known as substantive rulemaking. There are, to be sure, limits upon the former just as there are limits upon the latter–and I am prepared to acknowledge that the limits upon the former may be much more severe. Those limits are established, however, not by some categorical prohibition of Art. I, §7, which our cases conclusively disprove, but by what has come to be known as the doctrine of unconstitutional delegation of legislative authority: When authorized Executive reduction or augmentation is allowed to go too far, it usurps the nondelegable function of Congress and violates the separation of powers.
It is this doctrine, and not the Presentment Clause, that was discussed in the Field opinion, and it is this doctrine, and not the Presentment Clause, that is the issue presented by the statute before us here. That is why the Court is correct to distinguish prior authorizations of Executive cancellation, such as the one involved in Field, on the ground that they were contingent upon an Executive finding of fact, and on the ground that they related to the field of foreign affairs, an area where the President has a special “degree of discretion and freedom,” ante, at 27 (citation omitted). These distinctions have nothing to do with whether the details of Art. I, §7 have been complied with, but everything to do with whether the authorizations went too far by transferring to the Executive a degree of political, law-making power that our traditions demand be retained by the Legislative Branch.
I turn, then, to the crux of the matter: whether Congress’s authorizing the President to cancel an item of spending gives him a power that our history and traditions show must reside exclusively in the Legislative Branch. I may note, to begin with, that the Line Item Veto Act is not the first statute to authorize the President to “cancel” spending items. In Bowsher v. Synar, 478 U.S. 714 (1986), we addressed the constitutionality of the Balanced Budget and Emergency Deficit Control Act of 1985, 2 U.S.C. § 901 et seq. (1982 ed., Supp. III), which required the President, if the federal budget deficit exceeded a certain amount, to issue a “sequestration” order mandating spending reductions specified by the Comptroller General. §902. The effect of sequestration was that “amounts sequestered … shall be permanently cancelled,” §902(a)(4) (emphasis added). We held that the Act was unconstitutional, not because it impermissibly gave the Executive legislative power, but because it gave the Comptroller General, an officer of the Legislative Branch over whom Congress retained removal power, “the ultimate authority to determine the budget cuts to be made,” 478 U.S., at 733, “functions … plainly entailing execution of the law in constitutional terms.” Id., at 732—733 (emphasis added). The President’s discretion under the Line Item Veto Act is certainly broader than the Comptroller General’s discretion was under the 1985 Act, but it is no broader than the discretion traditionally granted the President in his execution of spending laws.
Insofar as the degree of political, “law-making” power conferred upon the Executive is concerned, there is not a dime’s worth of difference between Congress’s authorizing the President to cancel a spending item, and Congress's authorizing money to be spent on a particular item at the President's discretion. And the latter has been done since the Founding of the Nation. From 1789—1791, the First Congress made lump-sum appropriations for the entire Government–“sum[s] not exceeding” specified amounts for broad purposes. Act of Sept. 29, 1789, ch. 23, §1, 1 Stat. 95; Act of Mar. 26, 1790, ch. 4, §1, 1 Stat. 104; Act of Feb. 11, 1791, ch. 6, 1 Stat. 190. From a very early date Congress also made permissive individual appropriations, leaving the decision whether to spend the money to the President’s unfettered discretion. In 1803, it appropriated $50,000 for the President to build “not exceeding fifteen gun boats, to be armed, manned and fitted out, and employed for such purposes as in his opinion the public service may require,” Act of Feb. 28, 1803, ch. 11, §3, 2 Stat. 206. President Jefferson reported that “[t]he sum of fifty thousand dollars appropriated by Congress for providing gun boats remains unexpended. The favorable and peaceable turn of affairs on the Mississippi rendered an immediate execution of that law unnecessary,” 13 Annals of Cong. 14 (1803). Examples of appropriations committed to the discretion of the President abound in our history. During the Civil War, an Act appropriated over $76 million to be divided among various items “as the exigencies of the service may require,” Act of Feb. 25, 1862, ch. 32, 12 Stat. 344—345. During the Great Depression, Congress appropriated $950 million “for such projects and/or purposes and under such rules and regulations as the President in his discretion may prescribe,” Act of Feb. 15, 1934, ch. 13, 48 Stat. 351, and $4 billion for general classes of projects, the money to be spent “in the discretion and under the direction of the President,” Emergency Relief Appropriation Act of 1935, 49 Stat. 115. The constitutionality of such appropriations has never seriously been questioned. Rather, “[t]hat Congress has wide discretion in the matter of prescribing details of expenditures for which it appropriates must, of course, be plain. Appropriations and other acts of Congress are replete with instances of general appropriations of large amounts, to be allotted and expended as directed by designated government agencies.” Cincinnati Soap Co. v. United States, 301 U.S. 308, 321—322 (1937).
Certain Presidents have claimed Executive authority to withhold appropriated funds even absent an express conferral of discretion to do so. In 1876, for example, President Grant reported to Congress that he would not spend money appropriated for certain harbor and river improvements, see Act of Aug. 14, 1876, ch. 267, 19 Stat. 132, because “[u]nder no circumstances [would he] allow expenditures upon works not clearly national,” and in his view, the appropriations were for “works of purely private or local interest, in no sense national,” 4 Cong. Rec. 5628. President Franklin D. Roosevelt impounded funds appropriated for a flood control reservoir and levee in Oklahoma. See Act of Aug. 18, 1941, ch. 377, 55 Stat. 638, 645; Hearings on S. 373 before the Ad Hoc Subcommittee on Impoundment of Funds of the Committee on Government Operations and the Subcommittee on Separation of Powers of the Senate Committee on the Judiciary, 93d Cong., 1st Sess., 848—849 (1973). President Truman ordered the impoundment of hundreds of millions of dollars that had been appropriated for military aircraft. See Act of Oct. 29, 1949, ch. 787, 63 Stat. 987, 1013; Public Papers of the Presidents of the United States, Harry S. Truman, 1949, pp. 538—539 (W. Reid ed. 1964). President Nixon, the Mahatma Ghandi of all impounders, asserted at a press conference in 1973 that his “constitutional right” to impound appropriated funds was “absolutely clear.” The President’s News Conference of Jan. 31, 1973, 9 Weekly Comp. of Pres. Doc. 109—110 (1973). Our decision two years later in Train v. City of New York, 420 U.S. 35 (1975), proved him wrong, but it implicitly confirmed that Congress may confer discretion upon the executive to withhold appropriated funds, even funds appropriated for a specific purpose. The statute at issue in Train authorized spending “not to exceed” specified sums for certain projects, and directed that such “[s]ums authorized to be appropriated … shall be allotted” by the Administrator of the Environmental Protection Agency, 33 U.S.C. § 1285 1287 (1970 ed., Supp. III). Upon enactment of this statute, the President directed the Administrator to allot no more than a certain part of the amount authorized. 420 U.S., at 40. This Court held, as a matter of statutory interpretation, that the statute did not grant the Executive discretion to withhold the funds, but required allotment of the full amount authorized. Id., at 44—47.
The short of the matter is this: Had the Line Item Veto Act authorized the President to “decline to spend” any item of spending contained in the Balanced Budget Act of 1997, there is not the slightest doubt that authorization would have been constitutional. What the Line Item Veto Act does instead–authorizing the President to “cancel” an item of spending–is technically different. But the technical difference does not relate to the technicalities of the Presentment Clause, which have been fully complied with; and the doctrine of unconstitutional delegation, which is at issue here, is preeminently not a doctrine of technicalities. The title of the Line Item Veto Act, which was perhaps designed to simplify for public comprehension, or perhaps merely to comply with the terms of a campaign pledge, has succeeded in faking out the Supreme Court. The President’s action it authorizes in fact is not a line-item veto and thus does not offend Art. I, §7; and insofar as the substance of that action is concerned, it is no different from what Congress has permitted the President to do since the formation of the Union.
IV
I would hold that the President’s cancellation of §4722(c) of the Balanced Budget Act as an item of direct spending does not violate the Constitution. Because I find no party before us who has standing to challenge the President’s cancellation of §968 of the Taxpayer Relief Act, I do not reach the question whether that violates the Constitution.
For the foregoing reasons, I respectfully dissent.
Opinion of Scalia, J.
SUPREME COURT OF THE UNITED STATES
No. 97—1374
WILLIAM J. CLINTON, PRESIDENT OF THE UNITED
STATES, et al., APPELLANTS v. CITY OF
NEW YORK et al.
ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
[June 25, 1998]
Justice Scalia, with whom Justice O’Connor joins, and with whom Justice Breyer joins as to Part III, concurring in part and dissenting in part.
Today the Court acknowledges the “ ‘overriding and time-honored concern about keeping the Judiciary’s power within its proper constitutional sphere,’ ” ante, at 1—2, quoting Raines v. Byrd, 521 U.S. ___, ___ (1997) (slip op., at 8). It proceeds, however, to ignore the prescribed statutory limits of our jurisdiction by permitting the expedited-review provisions of the Line Item Veto Act to be invoked by persons who are not “individual[s],” 2 U.S.C. § 692 (1994 ed., Supp. II); and to ignore the constitutional limits of our jurisdiction by permitting one party to challenge the Government’s denial to another party of favorable tax treatment from which the first party might, but just as likely might not, gain a concrete benefit. In my view, the Snake River appellees lack standing to challenge the President’s cancellation of the “limited tax benefit,” and the constitutionality of that action should not be addressed. I think the New York appellees have standing to challenge the President’s cancellation of an “item of new direct spending”; I believe we have statutory authority (other than the expedited-review provision) to address that challenge; but unlike the Court I find the President’s cancellation of spending items to be entirely in accord with the Constitution.
I
The Court's unrestrained zeal to reach the merits of this case is evident in its disregard of the statute’s expedited-review provision, which extends that special procedure to “[a]ny Member of Congress or any individual adversely affected by [the Act],” §692. With the exception of Mike Cranney, a natural person, the appellees–corporations, cooperatives, and governmental entities–are not “individuals” under any accepted usage of that term. Worse still, the first provision of the United States Code confirms that insofar as this word is concerned, Congress speaks English like the rest of us: “In determining the meaning of any Act of Congress, unless the context indicates otherwise … the wor[d] ‘person’ … include[s] corporations, companies, associations, firms, partnerships, societies, and joint stock companies, as well as individuals.” 1 U.S.C. § 1 (emphasis added). And doubly worse, one of the definitional provisions of this very Act expressly distinguishes “individuals” from “persons.” A tax law does not create a “limited tax benefit,” it says, so long as
“any difference in the treatment of persons is based solely on–
“(I) in the case of businesses and associations, the size or form of the business or association involved;
“(II) in the case of individuals, general demographic conditions, such as income, marital status, number of dependents, or tax return filing status … .” 2 U.S.C. § 691e(9)(B)(iii) (1994 ed., Supp. II) (emphasis added).
The Court majestically sweeps the plain language of the statute aside, declaring that “[t]here is no plausible reason why Congress would have intended to provide for such special treatment of actions filed by natural persons and to have precluded entirely jurisdiction over comparable cases brought by corporate persons.” Ante, at 10. Indeed, the Court says, it would be “absurd” for Congress to have done so. Ibid. But Congress treats individuals more favorably than corporations and other associations all the time. There is nothing whatever extraordinary–and surely nothing so bizarre as to permit this Court to declare a “scrivener’s error”–in believing that individuals will suffer more seriously from delay in the receipt of “vetoed” benefits or tax savings than corporations will, and therefore according individuals (but not corporations) expedited review. It may be unlikely that this is what Congress actually had in mind; but it is what Congress said, it is not so absurd as to be an obvious mistake, and it is therefore the law.
The only individual who has sued, and thus the only appellee who qualifies for expedited review under §692, is Mike Cranney. Since §692 does not confer jurisdiction over the claims of the other appellees, we must dismiss them, unless we have jurisdiction under another statute. In their complaints, appellees sought declaratory relief not only under §692(a), but also under the Declaratory Judgment Act, 28 U.S.C. § 2201 invoking the District Court’s jurisdiction under 28 U.S.C. § 1331. After the District Court ruled, the Government appealed directly to this Court, but it also filed a notice of appeal to the Court of Appeals for the District of Columbia. In light of the Government’s representation that it desires “[t]o eliminate any possibility that the district court’s decision might escape review,” Reply Brief for Appellants 2, n. 1, I would deem its appeal to this Court a petition for writ of certiorari before judgment, see 28 U.S.C. § 2101(e), and grant it. Under this Court’s Rule 11, “[a] petition for a writ of certiorari to review a case pending in a United States court of appeals, before judgment is entered in that court, will be granted only upon a showing that the case is of such imperative public importance as to justify deviation from normal appellate practice and to require immediate determination in this Court.” In light of the public importance of the issues involved, and the little sense it would make for the Government to pursue its appeal against one appellee in this Court and against the others in the Court of Appeals, the entire case, in my view, qualifies for certiorari review before judgment.
II
Not only must we be satisfied that we have statutory jurisdiction to hear this case; we must be satisfied that we have jurisdiction under Article III. “To meet the standing requirements of Article III, ‘[a] plaintiff must allege personal injury fairly traceable to the defendant’s allegedly unlawful conduct and likely to be redressed by the requested relief.’ ” Raines, 521 U.S., at ___ (slip op., at 6), quoting Allen v. Wright, 468 U.S. 737, 751 (1984).
In the first action before us, appellees Snake River Potato Growers, Inc. (Snake River) and Mike Cranney, Snake River’s Director and Vice-Chairman, challenge the constitutionality of the President’s cancellation of §968 of the Taxpayer Relief Act of 1997. The Snake River appellees have standing, in the Court’s view, because §968 gave them “the equivalent of a statutory ‘bargaining chip,’ ” and “[b]y depriving them of their statutory bargaining chip, the cancellation inflicted a sufficient likelihood of economic injury to establish standing under our precedents.” Ante, at 13, 14. It is unclear whether the Court means that deprivation of a “bargaining chip” itself suffices for standing, or that such deprivation suffices in the present case because it creates a likelihood of economic injury. The former is wrong as a matter of law, and the latter is wrong as a matter of fact, on the facts alleged.
For the proposition that “a denial of a benefit in the bargaining process” can suffice for standing the Court relies in a footnote, see ante, at 15, n. 22, on Northeastern Fla. Chapter, Associated Gen. Contractors of America v. Jacksonville, 508 U.S. 656 (1993). There, an association of contractors alleged that a city ordinance according racial preferences in the award of city contracts denied its members equal protection of the laws. Id., at 658—659. The association’s members had regularly bid on and performed city contracts, and would have bid on designated set-aside contracts but for the ordinance. Id., at 659. We held that the association had standing even without proof that its members would have been awarded contracts absent the challenged discrimination. The reason, we explained, is that “[t]he ‘injury in fact’ in an equal protection case of this variety is the denial of equal treatment resulting from the imposition of the barrier, not the ultimate inability to obtain the benefit.” Id., at 666, citing two earlier equal protection cases, Turner v. Fouche, 396 U.S. 346, 362 (1970), and Richmond v. J. A. Croson Co., 488 U.S. 469, 493 (1989). In other words, Northeastern Florida did not hold, as the Court suggests, that harm to one’s bargaining position is an “injury in fact,” but rather that, in an equal protection case, the denial of equal treatment is. Inasmuch as Snake River does not challenge the Line Item Veto Act on equal-protection grounds, Northeastern Florida is inapposite. And I know of no case outside the equal-protection field in which the mere detriment to one’s “bargaining position,” as opposed to a demonstrated loss of some bargain, has been held to confer standing. The proposition that standing is established by the mere reduction in one’s chances of receiving a financial benefit is contradicted by Simon v. Eastern Ky. Welfare Rights Organization, 426 U.S. 26 (1976), which held that low-income persons who had been denied treatment at local hospitals lacked standing to challenge an Internal Revenue Service (IRS) ruling that reduced the amount of charitable care necessary for the hospitals to qualify for tax-exempt status. The situation in that case was strikingly similar to the one before us here: the denial of a tax benefit to a third party was alleged to reduce the chances of a financial benefit to the plaintiffs. And standing was
denied.
But even if harm to one’s bargaining position were a legally cognizable injury, Snake River has not alleged, as it must, facts sufficient to demonstrate that it personally has suffered that injury. See Warth v. Seldin, 422 U.S. 490, 502 (1975). In Eastern Ky. Welfare Rights, supra, the plaintiffs at least had applied for the financial benefit which had allegedly been rendered less likely of receipt; the present suit, by contrast, resembles a complaint asserting that the plaintiff’s chances of winning the lottery were reduced, filed by a plaintiff who never bought a lottery ticket, or who tore it up before the winner was announced. Snake River has presented no evidence to show that it was engaged in bargaining, and that that bargaining was impaired by the President’s cancellation of §968. The Court says that Snake River “was engaged in ongoing negotiations with the owner of a processing plant who had expressed an interest in structuring a tax-deferred sale when the President canceled §968,” ante, at 13. There is, however, no evidence of “negotiations,” only of two “discussions.” According to the affidavit of Mike Cranney:
“On or about May 1997, I spoke with Howard Phillips, the principal owner of Idaho Potato Packers, concerning the possibility that, if the Cooperative Tax Act were passed, Snake River Potato Growers might purchase a Blackfoot, Idaho processing facility in a transaction that would allow the deferral of gain. Mr. Phillips expressed an interest in such a transaction if the Cooperative Tax Act were to pass. Mr. Phillips also acknowledged to me that Jim Chapman, our General Manager, had engaged him in a previous discussion concerning this matter.” App. 112.
This affidavit would have set forth something of significance if it had said that Phillips had expressed an interest in the transaction “if and only if the Cooperative Tax Act were to pass.” But of course it is most unlikely he said that; Idaho Potato Packers (IPP) could get just as much from the sale without the Act as with the Act, so long as the price was right. The affidavit would also have set forth something of significance if it had said that Phillips had expressed an interest in the sale “at a particular price if the Cooperative Tax Act were to pass.” But it does not say that either. Nor does it even say that the President's action caused IPP to reconsider. Moreover, it was Snake River, not IPP, that terminated the discussions. According to Cranney, “[t]he President’s cancellation of the Cooperative Tax Act caused me to terminate discussions with Phillips about the possibility of Snake River Potato Growers buying the Idaho Potato Packers facility,” App. 114. So all we know from the record is that Snake River had two discussions with IPP concerning the sale of its processing facility on the tax deferred basis the Act would allow; that IPP was interested; and that Snake River ended the discussions after the President’s action. We do not know that Snake River was prepared to offer a price–tax deferral or no–that would cross IPP’s laugh threshold. We do not even know for certain that the tax deferral was a significant attraction to IPP; we know only that Cranney thought it was. On these facts–which never even bring things to the point of bargaining–it is pure conjecture to say that Snake River suffered an impaired bargaining position. As we have said many times, conjectural or hypothetical injuries do not suffice for Article III standing. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992).
Nor has Snake River demonstrated, as the Court finds, that “the cancellation inflicted a sufficient likelihood of economic injury to establish standing under our precedents.” Ante, at 14. Presumably the economic injury the Court has in mind is Snake River’s loss of a bargain purchase of a processing plant. But there is no evidence, and indeed not even an allegation, that before the President’s action such a purchase was likely. The most that Snake River alleges is that the President's action rendered it “more difficult for plaintiffs to purchase qualified processors,” App. 12. And even if that abstract “increased difficulty” sufficed for injury-in-fact (which it does not), the existence of even that is pure speculation. For all that appears, no owner of a processing plant would have been willing to sell to Snake River at any price that Snake River could afford–and the impossible cannot be made “more difficult.” All we know is that a potential seller was “interested” in talking about the subject before the President’s action, and that after the President’s action Snake River itself decided to proceed no further. If this establishes a “likelihood” that Snake River would have made a bargain purchase but for the President’s action, or even a “likelihood” that the President’s action rendered “more difficult” a purchase that was realistically within Snake River’s grasp, then we must adopt for our standing jurisprudence a new definition of likely: “plausible.”
Twice before have we addressed whether plaintiffs had standing to challenge the Government’s tax treatment of a third party, and twice before have we held that the speculative nature of a third party’s response to changes in federal tax laws defeats standing. In Eastern Ky. Welfare Rights, 426 U.S. 26 (1976), we found it “purely speculative whether the denials of service … fairly can be traced to [the IRS’s] ‘encouragement’ or instead result from decisions made by the hospitals without regard to the tax implications.” Id., at 42—43. We found it “equally speculative whether the desired exercise of the court’s remedial powers in this suit would result in the availability to respondents of such services.” Id., at 43. In Allen v. Wright, 468 U.S. 737 (1984), we held that parents of black children attending public schools lacked standing to challenge IRS policies concerning tax exemptions for private schools. The parents alleged, inter alia, that “federal tax exemptions to racially discriminatory private schools in their communities impair their ability to have their public schools desegregated.” Id., at 752—753. We concluded that “the injury alleged is not fairly traceable to the Government conduct … challenge[d] as unlawful,” id., at 757, and that “it is entirely speculative … whether withdrawal of a tax exemption from any particular school would lead the school to change its policies.” Id., at 758. Likewise, here, it is purely speculative whether a tax-deferral would have prompted any sale, let alone one that reflected the tax benefit in the sale price.
The closest case the Court can appeal to as precedent for its finding of standing is Bryant v. Yellen, 447 U.S. 352 (1980). Even on its own terms, Bryant is distinguishable. As that case came to us, it involved a dispute between a class of some 800 landowners in the Imperial Valley, each of whom owned more than 160 acres, and a group of Imperial Valley residents who wished to purchase lands owned by that class. The point at issue was the application to those lands of a statutory provision that forbade delivery of water from a federal reclamation project to irrigable land held by a single owner in excess of 160 acres, and that limited the sale price of any lands so held in excess of 160 acres to a maximum amount, fixed the Secretary of the Interior, based on fair market value in 1929, before the Valley was irrigated by water from the Boulder Canyon Project. Id., at 366—367. That price would of course be “far below [the lands’] current market values,” id., at 367, n. 17. The Court concluded that the would-be purchasers “had a sufficient stake in the outcome of the controversy to afford them standing,” id., at 368. It is true, as the Court today emphasizes, that the purchasers had not presented “detailed information about [their] financial resources,” but the Court thought that unnecessary only because “purchasers of such land would stand to reap significant gains on resale.” Id., at 367, n. 17. Financing, in other words, would be easy to come by. Here, by contrast, not only do we have no notion whether Snake River has the cash in hand to afford IPP’s bottom-line price, but we also have no reason to believe that financing of the purchase will be readily available. Potato processing plants, unlike agricultural land in the Imperial Valley, do not have a readily available resale market. On the other side of the equation, it was also much clearer in Bryant that if the suit came out in the would-be purchasers’ favor, many of the landowners would be willing to sell. The alternative would be withdrawing the land from agricultural production, whereas sale–even at bargain-basement prices for the land–would at least enable recoupment of the cost of improvements, such as drainage systems. Ibid. In the present case, by contrast, we have no reason to believe that IPP is not operating its processing plant at a profit, and will not continue to do so in the future; Snake River has proffered no evidence that IPP or any other processor would surely have sold if only the President had not cancelled the tax deferral. The only uncertainty in Bryant was whether any of the respondents would wind up as buyers of any of the excess land; that seemed probable enough, since “respondents are residents of the Imperial Valley who desire to purchase the excess land for purposes of farming.” Ibid. We have no basis to say that it is “likely” that Snake River would have purchased a processing facility if §968 had not been cancelled.
More fundamentally, however, the reasoning of Bryant should not govern the present case because it represents a crabbed view of the standing doctrine that has been superseded. Bryant was decided at the tail-end of “an era in which it was thought that the only function of the constitutional requirement of standing was ‘to assure that concrete adverseness which sharpens the presentation of issues,’ ” Spencer v. Kemna, 523 U.S. ___, ___ (1998) (slip op., at 9), quoting Baker v. Carr, 369 U.S. 186, 204 (1962). Thus, the Bryant Court ultimately afforded the respondents standing simply because they “had a sufficient stake in the outcome of the controversy,” 447 U.S., at 368, not because they had demonstrated injury in fact, causation and redressability. “That parsimonious view of the function of Article III standing has since yielded to the acknowledgement that the constitutional requirement is a ‘means of “defin[ing] the role assigned to the judiciary in a tripartite allocation of power,” ’ and ‘a part of the basic charter … provid[ing] for the interaction between [the federal] government and the governments of the several States,’ ” Spencer, supra, at ___ (slip op., at 10), quoting Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U.S. 464, 474, 476 (1982). While Snake River in the present case may indeed have enough of a “stake” to assure adverseness, the matter it brings before us is inappropriate for our resolution because its allegations do not establish an injury in fact, attributable to the Presidential action it challenges, and remediable by this Court’s invalidation of that Presidential action.
Because, in my view, Snake River has no standing to bring this suit, we have no jurisdiction to resolve its challenge to the President’s authority to cancel a “limited tax benefit.”
III
I agree with the Court that the New York appellees have standing to challenge the President’s cancellation of §4722(c) of the Balanced Budget Act of 1997 as an “item of new direct spending.” See ante, at 11—12. The tax liability they will incur under New York law is a concrete and particularized injury, fairly traceable to the President’s action, and avoided if that action is undone. Unlike the Court, however, I do not believe that Executive cancellation of this item of direct spending violates the Presentment Clause.
The Presentment Clause requires, in relevant part, that “[e]very Bill which shall have passed the House of Representatives and the Senate, shall, before it becomes a Law, be presented to the President of the United States; If he approve he shall sign it, but if not he shall return it,” U.S. Const., Art. I, §7, cl. 2. There is no question that enactment of the Balanced Budget Act complied with these requirements: the House and Senate passed the bill, and the President signed it into law. It was only after the requirements of the Presentment Clause had been satisfied that the President exercised his authority under the Line Item Veto Act to cancel the spending item. Thus, the Court’s problem with the Act is not that it authorizes the President to veto parts of a bill and sign others into law, but rather that it authorizes him to “cancel”–prevent from “having legal force or effect”–certain parts of duly enacted statutes.
Article I, §7 of the Constitution obviously prevents the President from cancelling a law that Congress has not authorized him to cancel. Such action cannot possibly be considered part of his execution of the law, and if it is legislative action, as the Court observes, “ ‘repeal of statutes, no less than enactment, must conform with Art. I.’ ” Ante, at 19, quoting from INS v. Chadha, 462 U.S. 919, 954 (1983). But that is not this case. It was certainly arguable, as an original matter, that Art. I, §7 also prevents the President from cancelling a law which itself authorizes the President to cancel it. But as the Court acknowledges, that argument has long since been made and rejected. In 1809, Congress passed a law authorizing the President to cancel trade restrictions against Great Britain and France if either revoked edicts directed at the United States. Act of Mar. 1, 1809, §11, 2 Stat. 528. Joseph Story regarded the conferral of that authority as entirely unremarkable in The Orono, 18 F. Cas. 830 (No. 10,585) (CCD Mass. 1812). The Tariff Act of 1890 authorized the President to “suspend, by proclamation to that effect” certain of its provisions if he determined that other countries were imposing “reciprocally unequal and unreasonable” duties. Act of Oct. 1, 1890, §3, 26 Stat. 612. This Court upheld the constitutionality of that Act in Field v. Clark, 143 U.S. 649 (1892), reciting the history since 1798 of statutes conferring upon the President the power to, inter alia, “discontinue the prohibitions and restraints hereby enacted and declared,” id., at 684, “suspend the operation of the aforesaid act,” id., at 685, and “declare the provisions of this act to be inoperative,” id., at 688.
As much as the Court goes on about Art. I, §7, therefore, that provision does not demand the result the Court reaches. It no more categorically prohibits the Executive reduction of congressional dispositions in the course of implementing statutes that authorize such reduction, than it categorically prohibits the Executive augmentation of congressional dispositions in the course of implementing statutes that authorize such augmentation–generally known as substantive rulemaking. There are, to be sure, limits upon the former just as there are limits upon the latter–and I am prepared to acknowledge that the limits upon the former may be much more severe. Those limits are established, however, not by some categorical prohibition of Art. I, §7, which our cases conclusively disprove, but by what has come to be known as the doctrine of unconstitutional delegation of legislative authority: When authorized Executive reduction or augmentation is allowed to go too far, it usurps the nondelegable function of Congress and violates the separation of powers.
It is this doctrine, and not the Presentment Clause, that was discussed in the Field opinion, and it is this doctrine, and not the Presentment Clause, that is the issue presented by the statute before us here. That is why the Court is correct to distinguish prior authorizations of Executive cancellation, such as the one involved in Field, on the ground that they were contingent upon an Executive finding of fact, and on the ground that they related to the field of foreign affairs, an area where the President has a special “degree of discretion and freedom,” ante, at 27 (citation omitted). These distinctions have nothing to do with whether the details of Art. I, §7 have been complied with, but everything to do with whether the authorizations went too far by transferring to the Executive a degree of political, law-making power that our traditions demand be retained by the Legislative Branch.
I turn, then, to the crux of the matter: whether Congress’s authorizing the President to cancel an item of spending gives him a power that our history and traditions show must reside exclusively in the Legislative Branch. I may note, to begin with, that the Line Item Veto Act is not the first statute to authorize the President to “cancel” spending items. In Bowsher v. Synar, 478 U.S. 714 (1986), we addressed the constitutionality of the Balanced Budget and Emergency Deficit Control Act of 1985, 2 U.S.C. § 901 et seq. (1982 ed., Supp. III), which required the President, if the federal budget deficit exceeded a certain amount, to issue a “sequestration” order mandating spending reductions specified by the Comptroller General. §902. The effect of sequestration was that “amounts sequestered … shall be permanently cancelled,” §902(a)(4) (emphasis added). We held that the Act was unconstitutional, not because it impermissibly gave the Executive legislative power, but because it gave the Comptroller General, an officer of the Legislative Branch over whom Congress retained removal power, “the ultimate authority to determine the budget cuts to be made,” 478 U.S., at 733, “functions … plainly entailing execution of the law in constitutional terms.” Id., at 732—733 (emphasis added). The President’s discretion under the Line Item Veto Act is certainly broader than the Comptroller General’s discretion was under the 1985 Act, but it is no broader than the discretion traditionally granted the President in his execution of spending laws.
Insofar as the degree of political, “law-making” power conferred upon the Executive is concerned, there is not a dime’s worth of difference between Congress’s authorizing the President to cancel a spending item, and Congress's authorizing money to be spent on a particular item at the President's discretion. And the latter has been done since the Founding of the Nation. From 1789—1791, the First Congress made lump-sum appropriations for the entire Government–“sum[s] not exceeding” specified amounts for broad purposes. Act of Sept. 29, 1789, ch. 23, §1, 1 Stat. 95; Act of Mar. 26, 1790, ch. 4, §1, 1 Stat. 104; Act of Feb. 11, 1791, ch. 6, 1 Stat. 190. From a very early date Congress also made permissive individual appropriations, leaving the decision whether to spend the money to the President’s unfettered discretion. In 1803, it appropriated $50,000 for the President to build “not exceeding fifteen gun boats, to be armed, manned and fitted out, and employed for such purposes as in his opinion the public service may require,” Act of Feb. 28, 1803, ch. 11, §3, 2 Stat. 206. President Jefferson reported that “[t]he sum of fifty thousand dollars appropriated by Congress for providing gun boats remains unexpended. The favorable and peaceable turn of affairs on the Mississippi rendered an immediate execution of that law unnecessary,” 13 Annals of Cong. 14 (1803). Examples of appropriations committed to the discretion of the President abound in our history. During the Civil War, an Act appropriated over $76 million to be divided among various items “as the exigencies of the service may require,” Act of Feb. 25, 1862, ch. 32, 12 Stat. 344—345. During the Great Depression, Congress appropriated $950 million “for such projects and/or purposes and under such rules and regulations as the President in his discretion may prescribe,” Act of Feb. 15, 1934, ch. 13, 48 Stat. 351, and $4 billion for general classes of projects, the money to be spent “in the discretion and under the direction of the President,” Emergency Relief Appropriation Act of 1935, 49 Stat. 115. The constitutionality of such appropriations has never seriously been questioned. Rather, “[t]hat Congress has wide discretion in the matter of prescribing details of expenditures for which it appropriates must, of course, be plain. Appropriations and other acts of Congress are replete with instances of general appropriations of large amounts, to be allotted and expended as directed by designated government agencies.” Cincinnati Soap Co. v. United States, 301 U.S. 308, 321—322 (1937).
Certain Presidents have claimed Executive authority to withhold appropriated funds even absent an express conferral of discretion to do so. In 1876, for example, President Grant reported to Congress that he would not spend money appropriated for certain harbor and river improvements, see Act of Aug. 14, 1876, ch. 267, 19 Stat. 132, because “[u]nder no circumstances [would he] allow expenditures upon works not clearly national,” and in his view, the appropriations were for “works of purely private or local interest, in no sense national,” 4 Cong. Rec. 5628. President Franklin D. Roosevelt impounded funds appropriated for a flood control reservoir and levee in Oklahoma. See Act of Aug. 18, 1941, ch. 377, 55 Stat. 638, 645; Hearings on S. 373 before the Ad Hoc Subcommittee on Impoundment of Funds of the Committee on Government Operations and the Subcommittee on Separation of Powers of the Senate Committee on the Judiciary, 93d Cong., 1st Sess., 848—849 (1973). President Truman ordered the impoundment of hundreds of millions of dollars that had been appropriated for military aircraft. See Act of Oct. 29, 1949, ch. 787, 63 Stat. 987, 1013; Public Papers of the Presidents of the United States, Harry S. Truman, 1949, pp. 538—539 (W. Reid ed. 1964). President Nixon, the Mahatma Ghandi of all impounders, asserted at a press conference in 1973 that his “constitutional right” to impound appropriated funds was “absolutely clear.” The President’s News Conference of Jan. 31, 1973, 9 Weekly Comp. of Pres. Doc. 109—110 (1973). Our decision two years later in Train v. City of New York, 420 U.S. 35 (1975), proved him wrong, but it implicitly confirmed that Congress may confer discretion upon the executive to withhold appropriated funds, even funds appropriated for a specific purpose. The statute at issue in Train authorized spending “not to exceed” specified sums for certain projects, and directed that such “[s]ums authorized to be appropriated … shall be allotted” by the Administrator of the Environmental Protection Agency, 33 U.S.C. § 1285 1287 (1970 ed., Supp. III). Upon enactment of this statute, the President directed the Administrator to allot no more than a certain part of the amount authorized. 420 U.S., at 40. This Court held, as a matter of statutory interpretation, that the statute did not grant the Executive discretion to withhold the funds, but required allotment of the full amount authorized. Id., at 44—47.
The short of the matter is this: Had the Line Item Veto Act authorized the President to “decline to spend” any item of spending contained in the Balanced Budget Act of 1997, there is not the slightest doubt that authorization would have been constitutional. What the Line Item Veto Act does instead–authorizing the President to “cancel” an item of spending–is technically different. But the technical difference does not relate to the technicalities of the Presentment Clause, which have been fully complied with; and the doctrine of unconstitutional delegation, which is at issue here, is preeminently not a doctrine of technicalities. The title of the Line Item Veto Act, which was perhaps designed to simplify for public comprehension, or perhaps merely to comply with the terms of a campaign pledge, has succeeded in faking out the Supreme Court. The President’s action it authorizes in fact is not a line-item veto and thus does not offend Art. I, §7; and insofar as the substance of that action is concerned, it is no different from what Congress has permitted the President to do since the formation of the Union.
IV
I would hold that the President’s cancellation of §4722(c) of the Balanced Budget Act as an item of direct spending does not violate the Constitution. Because I find no party before us who has standing to challenge the President’s cancellation of §968 of the Taxpayer Relief Act, I do not reach the question whether that violates the Constitution.
For the foregoing reasons, I respectfully dissent.
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