Season 5, Episode 8 (Show 216): Impounding Impoundments – Special Guest Josh Chafetz

February 19, 2025

President Trump has ordered the government to refrain from spending money Congress has apportioned.  Is that unconstitutional?  We bring you a leading expert, Professor Josh Chafetz, to discuss.

CLE Credit Available for this episode from podcast.njsba.com.

A Federal District Court has temporarily halted an executive order from President Trump that purports to halt wide swaths of federal spending.  This impoundment of funds duly appropriated by Congress may violate the Constitution as well as federal statutes.  We bring an expert on the relationship between Congress and the Presidency, Professor Josh Chafetz, and he takes us back to 17th century and Britain, through the American founding, into the early republic, and indeed into the presidency of Richard Nixon to give a full historical and originalist background.  But there’s more, with modern statutes, Supreme Court cases, structural analysis – in short, everything.  And for good measure, we dive a little deeper into some statements by Vice President Vance which seem to suggest that he thinks the President is not bound by the Supreme Court’s decisions and orders.  Professor Amar appeared on CNN to discuss this, and now he expands on those comments.  Lots of depth in this episode.

(LAWYERS AND JUDGES ARE ELIGIBLE FOR CONTINUING LEGAL EDUCATION CREDIT by visiting podcast.njsba.com after listening.)

Show Notes:

How to get Continuing Legal Education Credit for listening!

Virtually all lawyers and judges admitted to practice anywhere in the USA can obtain CLE (Continuing Legal Education) credit after listening to this episode by visiting podcast.njsba.com.  You do not have to be a New Jersey lawyer or resident or admitted to the NJ Bar; essentially every state has reciprocity arrangements with New Jersey.  When you visit the site you fill out a form and provide the code Andy read during the episode, pay a small fee, and within two weeks you will receive the certificate from New Jersey.  It couldn’t be easier.  Thanks to the New Jersey Bar Association for making this possible!  Note, too, that other podcast episodes from our “back catalog” now qualify for this credit as well.

Click to go to the website for CLE credit

Clinton v. City of New York (1998)

The Supreme Court weighs in on impoundments, line item vetoes, and related matters, in a case marked by an important dissent, wherein Justices Scalia and Breyer, strange bedfellows, find common ground.

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The Merryman Power - Michael Stokes Paulsen

Professor Paulsen writes on President Lincoln’s actions in the case of ex parte Merryman (1861), and on what appeared to some to be defiance of a Court.  Not so fast, says Professor Amar.

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The Judgment Power - William Baude

Professor Baude responds in the Georgetown Law Journal, years later, to the arguments of Professor Paulsen – convincingly, says Professor Amar.

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Trump Isn’t Going to be Impeached. Let’s Not Pretend That’s OK. - Richard Primus

Professor Richard Primus writes in the Balkanization blog on the implications of arguments some Republican Senators made during Trump’s second impeachment (2021), now that he is once again in office, and on the sorry state of impeachment as a check on this President.

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