The President's Budget Powers in the Trump Era

Abstract

The goal of this chapter, written for a forthcoming book on the role of OMB in the presidency, is to dis-aggregate the tools of the executive budget power in distinct legal frameworks and to illustrate the ways in which the Trump administration is making use of each one. While every president uses these tools, and, indeed, their proper use is a critical part of the administrative state’s operation, the story told in the first part of this chapter is not a run-of-the-mill one. More than simply using generally available budget tools, political officials in this administration are pushing some of them to their statutory limits and beyond, while suggesting off the record that these actions are “part of a broader effort to defend the president’s authority to spend money at any time and in any manner that he determines appropriate.” The administration has not articulated a fleshed-out constitutional argument for unbounded executive authority over the budget, but it may be heading in that direction. Such an argument would be dangerous, subverting democracy, accountability, and our system of checks and balances. It would also be wrong. As it is, some of the administration’s statutory arguments and application of those arguments to the facts at hand seem questionable at best.

But while many have suggested that courts can and should police the boundaries of the executive budget power, experience and logic point in the other direction. The second part of the chapter takes up this issue. After identifying the limits of judicial oversight, this part identifies potential legislative responses to the assertion of broad executive budget authority, seeking ways to curb presidential overreach while still leaving room for the executive budget discretion a functioning government requires. The chapter takes a long view in this regard. Political alignments change, turning the politically implausible into the institutionally obvious.

Keywords: OMB, Budget, Appropriations, Trump, Congress, Judicial Oversight, Executive Branch