
Trump Order Raises Legal Questions About Presidential Power to Limit Spending
President Trump’s first day back behind the Resolute Desk was eventful, sparking legal battles over birthright citizenship and threatening an even bigger battle over whether he can impound congressionally approved funding.
Trump issued dozens of executive orders including one halting the flow of funds authorized by the Inflation Reduction Act and the Infrastructure Investment and Jobs Act, two of President Biden’s most notable achievements. Trump’s order pauses as much as $21 billion in tentative awards, grants, loans and contractstied to green energy and transportation projects. Some projects may already be under construction.
Numerous projects under construction, many in red states, will be impacted. Trump officials justified the 90-day pause to give the incoming administration officials time to evaluate whether the expenditures align with new Trump policies. The main target may be EV charging stations and other climate-related projects.
Because of swift blowback and state transportation departments halting projects, the Trump administration issued a clarification memorandum indicating the order’s language only applies to projects and programs that counter the executive order’s stated policy to expand fossil fuel production and eliminate “EV mandates” – the term Republicans use to refer to Biden administration tailpipe emissions standards and other rules.
CFM’s federal team says the clarification means grant funding received under programs like RAISE, Mega, Safe Streets, Reconnecting Communities and others should proceed as planned. However, there could be delays and possible rollback on EV programs and other sustainability projects funded in the IRA. They also note the order does not affect congressionally directed spending, commonly referred to as appropriation earmarks.
The Oregon Department of Transportation will receive $52 million through the National Electric Vehicle Infrastructure Program to use over the next five years to expand access to charging stations. Washington will receive $85 million for charging stations.
The order raises a legal question over whether a President can suspend and eventually void legal contracts with states and local governments. The order also revives the issue of whether the President can refuse to spend congressionally approved funds. The practice, referred to an impoundment, was challenged during Trump’s first term when he withheld military aid to Ukraine, which lead to his first impeachment.
Legal experts are divided on the impact of the order, but generally agree it could lead to hundreds of lawsuits if federal agencies stop payments on already initiated projects. Democrats warn the action could undermine the spending authority of Congress. Republican lawmakers who supported the bipartisan infrastructure law express hope the pause will be temporary.
Oregon is slated to receive at least $4.5 billion over the next five years in Infrastructure Investment and Jobs Act funding, including an additional $200 million in transit funding. Washington would receive almost $10 billion for transportation projects. Oregon and Washington also will rely on federal funding to build a new I-5 Columbia River Bridge.
Congressional Spending Authority
Trump has long contended he has presidential authority to decide whether to spend funding approved by Congress. His new order assumes he also has the power to stop contractually obligated spending under a previous administration.
Oregon Senator Jeff Merkley, the top Democrat on the Senate Budget Committee, sharply criticized Trump’s action, “The law is very clear that he has to do what has been passed by Congress. He is not a king.”
Chris Spear, president of the American Trucking Associations, told Politico the pause on disbursements from the infrastructure law for highways, bridges and other transportation projects could present serious issues for states that have been guaranteed money through a complicated formula included in the law.
Idaho Republican Senator Mike Crapo said Trump has just declared a pause. It’s a “concern, but I don’t know how big a concern,” Crapo said. “I think he’s just pausing it right now. That doesn’t mean the payments aren’t going to be made.” Mississippi Republican Senator Roger Wicker said he hopes the disruption in funding will be “a brief pause.”
Nebraska Republican Senator Deb Fischer, who voted for the infrastructure law, said the executive order is “the President’s decision and he’s doing it,” but singled out “billions spent on a handful of electric charging stations … things like that are what the President told the people of this country he was going to look at and that’s what he’s doing.”
Legal Challenges Expected
Andrew Rogers, who served as deputy federal highway administrator under Biden, says most of the money for the National Electric Vehicle Infrastructure program, the presumed target of Trump order, has already been allocated to states. “What is surprising is their zeal to single out EVs and EV-related programs in an executive order that pauses all transportation and infrastructure dollars, which is a hell of a way to start out infrastructure week,” Rogers said.
Bobby Kogan, senior director for federal budget policy at the Center for American Progress and former Biden adviser, said Trump’s new order on spending could lead to the government not paying money that it has promised. “What they said here, ‘no new disbursements,’ means it doesn’t even matter if they already signed. No money can go out the door,” Kogan said. “That causes us to be in breach of our contracts. That is extremely illegal.”
Transportation budget expert Jeff Davis said the government would generate “a ton of lawsuits” if it tried to limit spending by refusing to disburse money after a recipient has done the work. A law called the Prompt Payment Act requires agencies to pay their bills in a timely way. Davis said if “disbursement” refers to outlays, that could mean the “immediate shutdown” of ongoing bridge projects.
Nicholas Bagley, a professor of administrative law at the University of Michigan, told Politico it’s unclear what the order’s reference to “disbursements” means and whether it would stop money the government is legally required to spend. He said presidents can and do temporarily stop money from going out the door to ensure it complies with laws.
“These executive orders, as a general matter, they come out with some really aggressive rhetoric, and then back it up with fairly milquetoast instructions to agencies,” Bagley said. “I want to see what the agencies actually do, and I wouldn’t put too much weight on the executive orders themselves.”
Birthright Citizenship
Oregon and Washington joined numerous other states in challenging the constitutionality of Trump’s executive order denying automatic citizenship to children born in the United States by parents who are undocumented immigrants.
Oregon Attorney General Dan Rayfield said Trump’s attempt to “sidestep” the Fourteenth Amendment is a “clear violation of the United States Constitution.”
“If allowed to stand, this order would break decades of established law that has helped keep kids healthy and safe,” Rayfield said. “While the President has every right to issue executive orders during his time in office, that power does not extend to instituting policies that infringe on our constitutional rights.”
The legal challenge says about 2,500 children were born in 2022 to mothers who lacked legal status and about 1,500 of those children were born to parents who both lacked legal status. Those children would remain citizens under Trump’s order, which isn’t retroactive, but babies born after February 19, 2025 would not.