Austin Sarat ScheerPost
When the Congress of the United States appropriates funds for a particular purpose, it is the president’s job to expend those funds as directed by Congress. Seems simple enough.
While disputes have arisen from time to time when presidents have either refused to spend such funds or redirected them to other purposes, they have been few and far between. All that changed when Donald Trump returned to the Oval Office.
Since then, his administration has canceled funding on a regular basis, undeterred by court decisions that their actions are illegal. It has tried to fend off accusations that such cancellations have been driven by political considerations or a desire to punish the president’s enemies by offering alternative explanations.
All that changed on July 15, when, in a court filing in a case about the legality of its termination of green energy grants to states, the administration came clean and admitted that its decisions were nakedly political, designed to punish states whose voters did not support the president in the 2024 election. There you have it, in black and white, the open acknowledgment that we have a red state president, not a president of the United States.
In a bygone era, such an acknowledgment would have launched a barrage of congressional investigations. Don’t hold your breath.
While the fate of green energy projects is unlikely to rouse voters to action in the midterm elections, the administration’s July 15 confession to dividing the country, abusing its power, and violating the law should. We need a Congress that will hold the administration’s feet to the fire, and it will be up to voters to make sure we get one.
Let me be clear. I am not exaggerating what the administration said.
In their initial filing, the plaintiffs alleged that “These terminations bypassed Congress, ignored or contradicted the purposes for which Congress created the granting agencies and appropriated funds, and dispensed with the regular procedures and due process afforded grantees under the APA, in implementing the Trump Administration’s political ‘cost-cutting’ agenda and ideological purity campaign.”
Buried in a set of stipulations about document production, the Department of Energy admitted that it had pursued such an “ideological purity campaign.
It said: “In May 2025, Department of Energy (“DOE”) Secretary Chris Wright executed a policy memorandum titled ‘Ensuring Responsibility for Financial Assistance’ that…tasked program offices with… reviewing their financial assistance awards (“grants”) against a number of criteria…and …making (and implementing) the ultimate decision whether to retain, modify, or terminate grants.”
Then, in a bombshell moment, the DOE acknowledged that “With one exception, the … terminated grants had a recipient location and/or at least one place of performance in a state that awarded its electoral votes to Kamala Harris in the 2024 election and has two Democratic-caucusing Senators.” It went on to say that none of the termination decisions “was based on any programmatic, statutory, cost-reduction, or performance-based factor.”
Instead, they were “based solely on the political identity of the grant recipient’s state, i.e., whether the recipient’s location and/or place of performance was in a Blue State or a non-Blue State.”
The New York Times contends that “The administration confessed to these facts to short-circuit a “process could have required federal agencies to hand over more damaging records.”
As Peter Brooks, the distinguished Yale Professor, reminds us, confessions like the one above are sometimes less reliable than they seem. But he adds, “For centuries the law has considered confession to be ‘the queen of proofs’…Western culture has made confessional speech a prime measure of authenticity….”
And, in this case, as shocking as it is to read what the DOE said about canceling green energy projects, it has been clear since long before Trump was re-elected that his administration would use every lever of government to reward his friends and punish his opponents. Project 2025, which has provided the blueprint for many of Trump’s actions, advocated using “impoundment,” the process of stopping the disbursement of congressionally approved funds, to advance the administration’s agenda.
It grounded this view in the so-called “unitary executive theory,” under which the president has virtually unlimited power. Recall that in 2019, President Trump said, “And then I have an Article 2, where I have the right to do whatever I want as President.”
Blue states beware, doing what he wants includes making you suffer for having the temerity to support someone else in an election.
As the Times explains, the DOE admission “showed how President Trump has weaponized the provision of federal education, energy, health, housing and infrastructure aid in his second term. Far from rooting out the sort of misspending that Mr. Trump sees as rife in Washington, the White House has instead sought to leverage the budget as a tool to assist its allies — or as a cudgel to hurt the president’s foes.”
And looking forward, “The saga illustrates the stakes as the Trump administration is completing a set of rules that would provide the president even greater control over more than $1 trillion in annual federal grants. To critics, the new regulation would only make it easier for Mr. Trump to strike wider tranches of congressionally approved funding over political differences.”
Whatever its intentions, one thing is clear. Withholding federal funds on those grounds is illegal.
More than fifty years ago, in 1974, Congress enacted the Impoundment Control Act. That law was explicit in saying that the president cannot unilaterally refuse to spend money appropriated by Congress. And it lays out steps the President must take to request permission to do so.
Spurred on by Russell Voight, one Project 2025’s authors and Director of the Office of Management and Budget, the Trump Administration has ignored the ICA, contending that it is unconstitutional. So far, that view has found no support in the courts.
Indeed, in a 2013 ruling, the United States Court of Appeals for the District of Columbia cited with approval a memo written by William Rehnquist, the late Chief Justice of the Supreme Court, when he was an Assistant Attorney General: “’[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’.”
This year, other courts have followed suit. Federal District Judge Indira Talwani ruled in July that it is illegal for the Trump Administration “to terminate grants based on program goals and agency priorities identified after grants were awarded.” The previous month, another federal district judge pointed out that decisions to suspend or terminate federal funding could not be made on political grounds.
None of that has stopped the administration.
Moreover, its recent admission that its political agenda drove the termination of the clean energy grants seems inconsistent with what Energy Secretary Chris Wright told a congressional committee in June. “No decisions, he said, “were made on politics. I keep hearing that charge. It’s bullshit. We’re going to say it a million times.”
Wright can say it a million times, but before he does, he should read his department’s confession of what Senator Patty Murray of Washington and Representative Marcy Kaptur of Ohio call “outright un-American… (w)eaponizing of the Federal government.” As they point out, this corrupt abuse of power will “kill good jobs and punish hard-working families because of their political views.”
That is something for all of us, not just residents of blue states, to think about when they cast their votes in November. If we accept what Trump has done, Democrats may be tempted to do the same when they capture the White House.
The result: we will no longer be living in one country, but rather in a permanently divided community.
Austin Sarat ScheerPost
Austin D. Sarat is the William Nelson Cromwell Professor of Jurisprudence and Political Science at Amherst College. He is an internationally renowned scholar whose interdisciplinary work examines law in relation to culture, violence, and the liberal arts. His academic foundation includes a B.A. from Providence College (1969), an M.A. (1970) and Ph.D. (1973) from the University of Wisconsin, and a J.D. from Yale Law School (1988). He has also received honorary degrees, including an LL.D. from Providence College (2008) and an A.M. from Amherst College (1984). Sarat has also been awarded the Jeffrey B. Ferguson Memorial Teaching Prize at Amherst in 2022 and the Ronald Pipkin Service Award as well as many others
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