Whitehouse Files Amicus Brief Eviscerating Trump’s Unconstitutional Overreach in Freezing Congressionally Appropriated Clean Energy Funding

“President Trump may wish he had the power to accomplish his policy goals instantaneously with a stroke of the pen.  But our constitutional system does not allow it,” wrote the EPW Ranking Member  

Washington, D.C.—Senator Sheldon Whitehouse (D-RI), Ranking Member of the Senate Committee on Environment and Public Works (EPW), submitted an amicus curiae brief to the Fourth Circuit Court of Appeals in support of a lawsuit against the Trump Administration for unconstitutionally freezing legislatively required clean energy and climate safety investments.  Ranking Member Whitehouse argues that the panel of Fourth Circuit judges, which originally heard the case, glossed over the constitutional matter at the center of the case and urges that the Plaintiff’s petition for a rehearing by the full Court be granted.

At issue in The Sustainability Institute v. Donald J. Trump is the Constitutional separation of powers, and specifically, Congress’ power to make laws and control government spending.  Of the three co-equal branches of government, only Congress possesses the power of the purse.  When Congress passes legislation, the Constitution is explicit that the President must “take Care that the Laws be faithfully executed.”  

But, as the Senator wrote in his brief, Trump issued a series of executive actions that froze congressionally appropriated funding, including programs aimed at spurring American-made clean energy production, mitigating climate change, and addressing environmental injustices.  Not only will this funding freeze increase costs for families and exacerbate the economic harms from climate change, but Trump implemented the freeze with “no consideration for statutory requirements, funding obligations, or impoundment and rescission procedures. … Rather than execute the law, he engaged in a legislative act.”

The Senator continued, “President Trump instructed agencies to withhold funding in contravention of explicit statutory requirements.  He lacks both constitutional and statutory authority to do so.  Simply put, presidential policy preferences cannot be allowed to supersede legislative mandates.”

However, in its ruling, the Fourth Circuit motions panel erred in determining that this was solely an issue of individual contract claims.  “This case is not about agencies’ failures to honor specific grant agreements: it is about President Trump’s wholesale disregard for Congress’s legislative role and the Constitutional separation of powers.  When a wrecking ball has destroyed the entire building, parties should not be forced to litigate over each broken brick,” argued the Senator.

For that reason, the Senator encouraged the full court to rehear the case, writing: “President Trump may wish he had the power to accomplish his policy goals instantaneously with a stroke of the pen.  But our constitutional system does not allow it.  I respectfully urge this Court to grant Plaintiffs’ petition for rehearing en banc.”

Counsel of record for the Senator is Robert Peck, founder of the Center for Constitutional Litigation, PC.

Full text of the brief is available HERE.