Meryl Chertoff is executive director of the Aspen Institute Justice & Society Program. The views and opinions of the author are her own and do not necessarily reflect those of the Aspen Institute.
The president threatened, then backed off, withholding congressionally appropriated funds for Historically Black Colleges and Universities, or HBCUs, last week.
In a signing statement, President Trump said that the HBCU capital financing and school improvement funding contained in the bill will be allocated “in a manner consistent with the requirement to afford equal protection” under the Constitution’s Fifth Amendment. The implication is that HBCUs may be discriminating against non-African American students, and therefore could not receive funding under the administration’s interpretation of the amendment.
The claim that funds appropriated by Congress can be withheld by the president would amount to an impoundment. The last president who tried this, Richard Nixon, was roundly rebuked by the Supreme Court in a unanimous 1975 decision. In City of New York v. Train, 420 U.S. 35, the Court held that “the president cannot frustrate the will of Congress by killing a program through impoundment.”
The ruling against Nixon came when the Federal Water Pollution Control Act was amended by Congress in 1972 to send money to the states to aid in improvements of sewers and sewage treatment plants — millions of dollars were appropriated for this purpose. But President Nixon defied Congress and ordered the EPA administrator to withhold the funds. New York City and other cities and states sued, and the Supreme Court ruled against Nixon.
Presidents since Jefferson have tried to use impoundment as a way of thwarting congressional will, but the Courts consistently have held the efforts impermissible. Among the most alarming aspects of impoundment is that it is a backdoor attempt at a line-item veto, a power that the US president does not have.
If the words of the signing statement indicate intent, then President Trump’s efforts will likely meet the same fate as President Nixon’s.
Beyond this instance, the specter of impoundment as a tactic has some other disturbing implications. A refusal to spend money allocated by Congress, based on policy or the administration’s view of the Constitution, would abrogate the spending authority of the Congress to the president. It would permit him simply to defund programs with which he disagrees.
The tactic itself is illegal, but it is also bad policy. There are about 100 HBCUs around the nation. While they represent only 3 percent of US colleges and universities, they graduate 20 percent of African Americans who hold undergraduate degrees in STEM fields and account for 15 percent of all African Americans who graduated in 2015 with a bachelor’s degree.
The schools play a critical national role in educating African Americans to lead and succeed. While historically the schools were created in reaction to segregation, and were all-black, there is increasing enrollment of non-black students and admission is open to all.
The president has made two conflicting statements about HBCUs within a few hours of each other. After the president promised to improve the lot of African Americans, met with leaders of HBCUs to assure them of his commitment to their mission, and created an office devoted to HBCUs within the White House, it would be hypocritical indeed if he were to withhold funds from those educational institutions.
For now, leadership in the HBCU community has taken a restrained approach, expressing puzzlement rather than alarm at the words of the signing statement. They point to the fact that there is no pending litigation, and to the fact that HBCUs are in fact open to students of all races. But how the president proceeds on this matter is a test of his relationship to Congress, and the very concept of the separation of powers that underpins our entire political system.