MICHEL MARTIN, HOST:
We've been reporting on President Trump's many moves since he took office last month, and we are also reporting on those actions which test the limits of his authority. Last week, for example, his administration tried to freeze federal funding already approved by Congress. Courts intervened. The Office of Management and Budget rescinded the memo ordering the funding freeze, at least for now. But White House Press Secretary Karoline Leavitt insisted the president's orders remain, quote, "in full force and effect," unquote. So a federal judge may yet hear argument. To consider some of the ways this could play out, we've called Gillian Metzger, a law professor at Columbia, who has had a couple of different roles at the Justice Department in the Office of Legal Counsel, including as acting assistant attorney general. That office serves as legal adviser to the executive branch. Good morning, Professor. Thanks for joining us.
GILLIAN METZGER: My pleasure.
MARTIN: So putting your OLC hat on, can a president freeze federal funding already approved by Congress?
METZGER: I think the short answer to that is no, with, of course, as usual for lawyers, some qualifications. The governing statute here makes it clear that the president can't just delay funding that Congress has approved for policy reasons, which is what the president appears to have done here. And as a result, I think it goes beyond the authorities that the president has. There might be some specific statutes that, you know, grant appropriations that are compassed by the freeze that give the president discretion. But the kind of categorical across-the-board move that was done here, I think it was outside of statutory authority.
MARTIN: So you could see it as a setback when the courts immediately block the president, but I - you know, I may be asking you to speculate here, but could that actually be the point? I mean, is part of the plan here to get to a court with an expansive view of his authority?
METZGER: I think it may very well be. I mean, I think we're seeing some very bold and aggressive assertions of presidential authority, notwithstanding statutory and constitutional law to the contrary. And when it comes to funding, there are members of Trump's administration that have asserted that the president has some kind of inherent authority to control and refuse to spend money that Congress has appropriated. So this may very well be the signal of a first step to try and get that to court. Although in this particular case, they've rescinded the memo, so this may not have been the vehicle that they had ideally chosen to try and make that move with.
MARTIN: OK. But I'm thinking about the so-called Muslim ban. And of course, they deny that that was a Muslim ban, but we'll just call it that. That's what people think of that Trump issued in his first term as president. His first executive order was struck down, so was his second. Then the third one was upheld by the court after lower courts rejected it. So do you expect OMB to keep trying?
METZGER: I would expect them to keep trying. I think it seems like it's a central theme of this administration to try and be pulling back on funding and to make some very, very bold assertions of presidential authority that they're trying to get before the Supreme Court. I don't think actually the Supreme Court will likely go for this argument about inherent presidential funding, but there are certainly other moves that the president is making that have more resonance in recent Supreme Court decisions.
MARTIN: OK. I was going to ask you about that. On this question of the funding, if you think about the court - again, I'm asking you to speculate - you don't think that the court would be amenable to that argument about...
METZGER: I don't think so. I mean, of course, you know, predictions, take them for what they're worth. But the court has recently asserted Congress' very broad control over funding, and it is clear if you look at the Constitution that the power of the purse lies with Congress, not with the president. I would be surprised if the court went for such a bold and categorical assertion of inherent funding.
MARTIN: But the president - another big sort of area of interest for the president is trying to reshape the federal workforce, and there have been a number of moves in that direction. Do you have a sense of how this Supreme Court has looked on questions of federal worker protections and whether people can be placed on leave, for example, as he recently did with USAID and other agencies for that matter?
METZGER: Yeah. I don't know in terms of recent decisions that deal with leave, but the Supreme Court has been very assertive recently about the president having a, you know, constitutional power to remove high-ranking officials and been asserting very broad kind of unitary executive power in that sense over the personnel of the executive branch. I think when you're talking about some of the moves they're making in this area, there are also statutory authorities that the president has that have to be taken into account. For example, to make exceptions to the civil service and some of the moves that he's been making. I think we're going to have to see just how those statutory and constitutional arguments play out.
MARTIN: That is Gillian Metzger. She's a constitutional law professor at Columbia University. Professor Metzger, thank you for joining us.
METZGER: Thank you for having me. Transcript provided by NPR, Copyright NPR.
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