Why does the government fund things, and what happens when it stops?

Congress appropriates funds, the executive branch ensures those funds are spent and spent wisely. That is how it works. It is not, however, how it is working right now. The Trump Administration has, in recent months, repeatedly and often successfully frozen the funds that Congress assigned to certain departments and agencies. Jobs have been lost, research shelved, life-saving care ended, budgets and plans thrown into disarray. So why and how has this happened? Why were we funding education, science, medicine and foreign aid in the first place? Our guide to this tumult is Samuel Bagenstos, professor of law at the University of Michigan and former Chief Counsel at both the Office of Management and Budget and the Department of Health and Human Services. CLICK HERE: Visit our website to see all of our episodes, donate to the podcast, sign up for our newsletter, get free educational materials, and more! To see Civics 101 in book form, check out A User's Guide to Democracy: How America Works by Hannah McCarthy and Nick Capodice, featuring illustrations by Tom Toro. Check out our other weekly NHPR podcast, Outside/In - we think you'll love it! Learn more about your ad choices. Visit megaphone.fm/adchoices

Speaker names marked ? are inferred from speaking time and the show’s known hosts — they are not voice-verified.

• 0:00Hannah McCarthy?

  Nick.

• 0:01Nick Capodice?

  Yes, Hannah.

• 0:02Hannah McCarthy?

  Don't it always seem to go that you don't know what you got till it's gone?

• 0:08Nick Capodice?

  Are we doing an episode about paving the rose garden?

• 0:11Hannah McCarthy?

  We are not.

• 0:11Nick Capodice?

  I'm just checking. You think Joni Mitchell would let us play Big Yellow Taxi on the show?

• 0:17Hannah McCarthy?

  Tell you what, I'll have my people get in touch with her people.

• 0:20Nick Capodice?

  Who are your people?

• 0:22Hannah McCarthy?

  Me. I'm my people.

• 0:24Nick Capodice?

  Yeah.

• 0:27Hannah McCarthy?

  But the reason I quote Ms. Mitchell here is because her words are a truism that has applied a whole lot lately. Things have gone away, things that make a lot of people realize just what we had. Things that made me ask, wait a minute, why did we have that?

• 0:45Nick Capodice?

  Why do we have what exactly?

• 0:47Speaker 02

  Thousands of staff and contractors were fired while humanitarian aid to some of the world's most vulnerable populations was stopped.

• 0:54Speaker 03

  At the end of the day, what really impacts are the kids and the families. They're the ones that are depending on childcare. Not just in Gaza, but around the world, a series of decisions that could have profound consequences on the well-being of so many people.

• 1:06Speaker 04

  UCLA is losing hundreds of millions of dollars in federal research funding.

• 1:10Speaker 05

  The cuts come from the National Science Foundation, the National Institute of Health, a whole host of federal grants.

• 1:16Speaker 06

  Back now with outrage this afternoon after the Trump administration's decision to freeze billions of dollars in education grants.

• 1:22Speaker 07

  Congress approved these investments. They are not optional. They are the law.

• 1:33Hannah McCarthy?

  This is Civics 101. I'm Hannah McCarthy.

• 1:35Nick Capodice?

  I'm Nikita Diche.

• 1:36Hannah McCarthy?

  And today, we're talking about federal funds, or the lack thereof. Why does the federal government fund all sorts of things? And what happens when it doesn't?

• 1:47Nick Capodice?

  Huh.

• 1:48Hannah McCarthy?

  What?

• 1:49Nick Capodice?

  Why does the government fund things is a strange question.

• 1:53Hannah McCarthy?

  Because you've taken it for granted your whole life?

• 1:55Nick Capodice?

  Yes.

• 1:56Hannah McCarthy?

  Yeah. Okay, so to better understand this, I spoke with someone who really, really understands this world. Someone who has worked both at the office that helps to manage these funds and one of the agencies that receives them. Meet Samuel Bagenstoss.

• 2:11Nick Capodice?

  You can call me a professor at the University of Michigan or a professor of law and public policy at the University of Michigan, whichever you prefer.

• 2:19Hannah McCarthy?

  Samuel is that. And before he was that, he was the general counsel for the Department of Health and Human Services. And before that, the general counsel for the Office of Management and Budget.

• 2:29Nick Capodice?

  General counsel as in the in-office lawyer.

• 2:32Hannah McCarthy?

  Yeah, the person who gives legal advice and manages legal services. Now, the Office of Management and Budget is what, Nick?

• 2:41Nick Capodice?

  All right, the OMB, I am pretty sure it's the largest office in the executive branch.

• 2:46Hannah McCarthy?

  Yep.

• 2:46Nick Capodice?

  And the OMB essentially helps the president get done what they want to get done. So it prepares the budget proposal, it oversees executive branch agencies, it helps with the president's policy and agenda.

• 3:00Hannah McCarthy?

  Correct. And the Department of Health and Human Services, super broadly speaking, is there to implement programs that support public health. So Samuel worked for two big and very important pieces of the executive branch. I mean, it's all important, but you get the picture.

• 3:16Nick Capodice?

  All right. Now, I know we're going to talk about things being funded or not funded, but before we get in the details, Hannah, can you give me a very basic primer here? How does the money get from A to Z?

• 3:28Hannah McCarthy?

  All right, let's follow it.

• 3:33Hannah McCarthy?

  We've talked about the budget quite a bit in various episodes, but the basics are thus. There are two kinds of spending, discretionary and mandatory. Mandatory is set by a formula. It's stuff like Medicare and Social Security. I am not going to get into the current administration's approach to these, what we call entitlements, that is for another day. Discretionary spending is the stuff that Congress has to make decisions about.

• 3:58Nick Capodice?

  So stuff like education, national defense, agriculture, all the department stuff?

• 4:03Hannah McCarthy?

  Bingo. It goes like this, and I am going to skip a few steps, okay? Because I do want to get back to Samuel.

• 4:10Nick Capodice?

  Understood.

• 4:11Hannah McCarthy?

  All right. The president drafts a budget proposal with the help of the OMB. A lot goes into that.

• 4:18Nick Capodice?

  Gotcha. But it's basically like, this is how the president wants to achieve their agenda and policies.

• 4:25Hannah McCarthy?

  Basically. And the budget also likely has things that departments need, the requests that they have made. And that proposal goes to Congress.

• 4:34Nick Capodice?

  Because Congress has the power of the purse.

• 4:37Hannah McCarthy?

  Cha-ching. And Congress doesn't have to do exactly what the president suggests, and they often make changes, okay? So Congress splits up into committees and drafts appropriations bills for the various departments.

• 4:51Nick Capodice?

  The money they get and how they can spend it.

• 4:54Hannah McCarthy?

  And for what period of time. Very broad strokes, okay? Then Congress passes an omnibus bill with all of the spending laid out. Or they pass multiple minibus bills, where they smush several departments together.

• 5:09Nick Capodice?

  Minibus?

• 5:11Hannah McCarthy?

  Yeah. Cute word, extremely serious process. In August, for example, after the Senate failed to agree on an omnibus, they passed three minibuses. The House will have to decide on those when they get back from their recess.

• 5:23Nick Capodice?

  I passed three minibuses on my way to work this morning. And to be clear here, Congress is not constitutionally mandated to pass a budget.

• 5:31Hannah McCarthy?

  They are not, which is why we get stuff like continuing resolutions and short-term spending bills and government shutdowns.

• 5:38Nick Capodice?

  Right.

• 5:38Hannah McCarthy?

  Okay. So let's say we have a budget.

• 5:46Hannah McCarthy?

  It tells departments how much, for what, and for how long. It also allows for some wiggle room. Like, you aren't likely to read that Congress is legally mandating that HHS has to spend $10 million on a specific ply of toilet paper, unless there is already a law that requires that.

• 6:02Nick Capodice?

  Is that it?

• 6:03Hannah McCarthy?

  That is so not it, but that is it for now. Now, Nick.

• 6:10Hannah McCarthy?

  Why do we fund things?

• 6:13Nick Capodice?

  Because things cost money.

• 6:16Hannah McCarthy?

  Round and round we go. The government used to fund a whole lot less. Stuff like defense, the mail, big, big infrastructure projects. Now, at a point, the government decided it should fund more stuff, like research. Let's get back to Samuel.

• 6:33Speaker 08

  You know, so one of the major ways in which the federal government gives money to states and other organizations is to support basic scientific research. That is a function that really started during World War II, when we found as a country, we need to make dramatic scientific developments on things like medical care, you know, how to manufacture penicillin in a mass way, on things like developing radar for our defense effort, the Manhattan Project, obviously a big part of this. And one of the things that our country learned was

• 7:13Speaker 08

  we, as a market system, will under-produce basic scientific research. We need to have a public function that's going to be financing basic scientific research. The market's really good at financing research, you know, in the last little bit, when it's very close to market, when, you know, when a profit-making enterprise knows that it can earn money off of it. But the basic research that all of that subsequent stuff relies on won't get produced unless the government kicks in.

• 7:46Nick Capodice?

  Huh. So to get the big developments that help your country establish itself as a major power, you gotta get things off the ground.

• 7:55Hannah McCarthy?

  Yeah, and not just scientific research. A lot goes into building the wealthiest, most powerful nation on planet Earth.

• 8:04Speaker 08

  You know, there's also financing of education programs. Again, after World War II, people came back on the GI Bill. We had this explosion of people attending college. And the GI Bill enabled folks who had served in World War II to be able to afford college for the first time. That became an expectation, that people would be able to go to college. And so, we started, beginning in 1965, to have very significant federal aid for students who were going to college, for tuition assistance. Similarly, we have significant federal aid to elementary and secondary education.

• 8:49Speaker 08

  And one of the lessons there was that, you know, education is something that's in all of our interests. It's in all of our interests to have an educated populace.

• 8:59Hannah McCarthy?

  So if you're thinking, you know, why not just leave this kind of education funding up to the states? Samuel says it's about taxes. How do you pay for education? Taxes. How do you get more money for education? You raise taxes. But states don't want to do that. If they raise taxes, the worry is that residents and industry will flee to another state. It turns into what Samuel calls "a race to the bottom." So instead, the federal government collects taxes across the country and distributes that money to the states. It allows states to keep local control while keeping their education systems strong.

• 9:38Speaker 09

  New at six, more than 20 states sued the Trump administration today. Over billions of dollars in frozen education funding.

• 9:46Nick Capodice?

  Hannah, this reminds me a little bit of the shift from the Articles of Confederation to the Constitution we have today. Under the Articles, government was small, kind of passive. The states were doing their own thing, including not paying taxes, and it was a big, big problem. So we gave the government a much bigger role.

• 10:05Hannah McCarthy?

  Yeah, something I had never considered before was the fact that our federalist system, if left only to the semi-sovereign states, would not be doing big, amazing things, or maybe even small, basic and necessary things.

• 10:20Speaker 08

  It's a story that's a little bit different in every area, but the basic idea is these are things that we can't expect the market or the federalist system to do on its own. So we need the federal government to come in and provide financing for stuff that we really rely on as a society. The federal government has taken a great deal of responsibility, you know, since 1965 for financing schools, paying for assistance for schools where there are a lot of people who experience social disadvantages, increasing the payments and programs for students who have disabilities, which can impose, you know, significant costs on particular school districts.

• 11:05Speaker 08

  And we don't want to create an incentive for school districts to drive disabled kids out of the schools. And so what we want to do is make sure that they are adequately paid for the special and important services that people with disabilities may need in school to benefit from education.

• 11:21Speaker 10

  Yeah, Jeremy, educators and families are concerned about the impact dismantling the department could have on all students, but especially on students who are in special education classes.

• 11:31Speaker 08

  And so we've seen a series of these programs that have developed through the years. And yeah, I mean, I think, you know, if you were to do a graph, you would find the federal contribution to education going up very significantly.

• 11:45Nick Capodice?

  Yeah, isn't the Department of Education relatively new?

• 11:48Speaker 08

  A hallmark moment here was in 1979 when Congress created, under President Carter, a Department of Education for the first time, which was a big deal because education had been, you know, primarily a state function. It's still initially a state function. It's the states that choose curricula, it's the states that run schools, but increasingly financing education has been a federal function.

• 12:14Speaker 11

  Officials say Connecticut has lost $53 million that are already built into school budgets.

• 12:21Speaker 12

  Millions of dollars for California schools held back by the Trump administration. A federal funding freeze quietly handed down from Washington DC put the brakes on billions of dollars meant for after-school programs, teacher training.

• 12:33Speaker 13

  $26 million in funding for Vermont schools is not currently available.

• 12:39Speaker 14

  A billion dollars in grant funding for schools all across the nation is now under review. Might be saying, "Hey, we're going to freeze these funds and we'll see if we release them in October." We start school in less than a month and our fiscal year has already started.

• 12:57Hannah McCarthy?

  So, if you look at, for example, the ways the federal government funds scientific research and public health initiatives and programs and education, Samuel explained, you can see how it helped to skyrocket the United States to its place in the world.

• 13:10Speaker 08

  All of the pharmaceutical advances that you've seen are initially derived from financing from the federal government, from the NIH, from the National Science Foundation and otherwise, and that is super important for people's health. I mean, we have saved thousands and thousands and thousands of lives and made even more lives much better because of those developments. We've also stimulated the economy in significant ways in the areas where there are significant research facilities, including places where you'd had other parts of the economy sort of fall behind. I mean, think about a place like Pittsburgh that was really revived because of its connection

• 13:54Speaker 08

  to research and medicine and education.

• 13:57Speaker 15

  The threat of national institutes of health funding cuts is already having a ripple effect at the University of Pittsburgh. Union members met with local Democrat lawmakers to discuss how the cuts could impact jobs, progress on critical medical research, and the local economy.

• 14:12Speaker 08

  Also, I think you see that when the federal government has supported the research enterprise and the academic enterprise more generally, that has been a beacon to the world. I mean, so we have seen people all over the world want to come to the United States, want to pay full freight for education in United States institutions.

• 14:35Speaker 16

  In the wake of President Trump's efforts to limit the number of international students at universities here in the US, some foreign students are looking outside the US to study.

• 14:44Speaker 08

  So, yeah, I mean, I think this is redounded to our benefit, it's redounded to the benefit of individual human beings, of humanity at large, and of the United States.

• 14:56Nick Capodice?

  Okay, so can we talk a little bit about what's going on today, Hannah, right now? Because there's a lot of talk and a lot of action that is about not funding a lot of what Samuel has laid out.

• 15:07Hannah McCarthy?

  We sure can talk about it after a quick break.

• 15:10Nick Capodice?

  But before that break, a reminder that Hannah and I wrote a book called A User's Guide to Democracy: How America Works. And though, yes, things in America are changing, there is still a whole legal system under our feet that is important to understand so you can know when someone starts to, let's say, hop over and around what is under our feet. So keep our user's guide in your backpack, at your kitchen table, in your car, in every room of your house. Give it away to friends and family. Spread the good word. You can get it wherever you get your books.

• 15:39Hannah McCarthy?

  We have an audiobook, too, because, of course, we do.

• 15:42Nick Capodice?

  Of course we do. It was so fun to make that.

• 15:44Hannah McCarthy?

  It was.

• 15:52Nick Capodice?

  Haven't you out there ever Googled your own name, like, actually done it? You'll find your address, your phone number, maybe even that police report from the time you went to see Rain Man in the movie theater but you were underage? Maybe that one's just me. But here's the thing, there are companies called data brokers, whose entire business model is collecting your personal information and selling it to advertisers, to strangers.

• 16:16Nick Capodice?

  Sometimes to people running scams. And once your data is out there, it just keeps circulating. That is where incogni comes in. Incogni contacts data brokers on your behalf and sends them removal requests over and over. So your info doesn't just pop right back up. You set it up once and they keep working in the background. You can even track the progress on a dashboard. And for our listeners, we have an exclusive 60% off an annual incogni plan. Just go to incogni.com/civics or use the code civics at checkout. There's a link in the episode description. Remember, they can't harm you if they can't find you.

• 17:01Hannah McCarthy?

  We're back. We're talking about federal funding, how it happens, where it goes, what it's done for us, and what's happening to it now. Before the break, Nick, you asked me about today. Today being a day when we are funding less.

• 17:16Nick Capodice?

  Yeah, I feel like you can't swing a cat without hitting a funding freeze, Hannah. And I don't even really know what a funding freeze means, except for that the money stops.

• 17:24Hannah McCarthy?

  Yes, and we do not advocate for swinging cats around here. So we talked about how Congress writes the budget. It says departments and agencies get money. But there is a very, very important and very powerful middleman between that money and those establishments. Some say the most powerful thing in the executive branch.

• 17:47Nick Capodice?

  The president?

• 17:48Hannah McCarthy?

  Kind of. I'm talking about, once again, the O M B.

• 17:57Speaker 08

  Before I worked at the Department of Health and Human Services, I was at the Office of Management and Budget as the general counsel for a year and a half. And so I worked on this a lot. And it is a really arcane process and a complex process that people don't know a lot about, but it's really important. So when Congress passes a law saying that here's an amount of money we're spending, that money goes into the treasury. But it's not available to be spent by an agency usually unless the Office of Management and Budget does something called an apportionment, apportions the money to the agency.

• 18:34Nick Capodice?

  An apportionment. So this is not an appropriation?

• 18:39Hannah McCarthy?

  No, the appropriation has already happened. Congress did that.

• 18:43Nick Capodice?

  OK, so Congress says, for example, "The Department of Health and Human Services is getting X amount of dollars, and they have to use it for Y things in Z period of time." But the money doesn't go directly to the department?

• 18:57Hannah McCarthy?

  No, it's like your long-lost great uncle left you a million dollars, and that is your million dollars. But there's some money manager who isn't going to give it to you unless you spend it wisely so you don't soil the family name.

• 19:09Speaker 08

  So basically, just issues a directive saying, "OK, now you can spend this money." And OMB is supposed to do that in a way to make sure that an agency is spending the money prudently, doesn't overspend in the first quarter, and then have to go back to Congress after that and say, "Oh, my God, we spent all our money. We need more money." So the idea is, we want to make sure that they're acting in a way that's reasonable and prudent and appropriate.

• 19:35Nick Capodice?

  That makes sense. The OMB is supposed to be the level-headed money manager.

• 19:41Speaker 08

  But the problem is that we've seen, both in the first Trump administration and in this administration, we've seen the Office of Management and Budget not just use that authority for making sure that things are carried out prudently, but using that authority to second-guess the policy judgments made by Congress in laws that were signed by the president. And that is something that, under our constitutional system, the president and the executive branch are not allowed to do.

• 20:18Hannah McCarthy?

  Technically, constitutionally, not allowed to do. But it's happening anyway.

• 20:26Nick Capodice?

  Is this the freezing?

• 20:27Hannah McCarthy?

  This is the freezing. Congress gave departments money and told them what to do with it. The OMB is not letting them do what Congress told them to do.

• 20:38Speaker 08

  What's happened in a lot of these cases is OMB has either issued a memo across the board to the federal government, to the executive branch, saying, "Don't spend any of the money on this wide swath of programs until we can do a review and tell you it's OK." So that happened with grant programs at the very beginning of this administration and immediately triggered lawsuits. Or they've gone to individual agency appropriations. And in the apportionments, in the orders saying to agencies, "You can spend money or you can't spend money," they've attached footnotes to those apportionments saying

• 21:19Speaker 08

  things like, "You can't spend any money for this account until we tell you it's OK." So as we're speaking, just in the past week, OMB did this with grant programs from the National Institutes of Health, said, "No more spending on grant programs until the end of the year."

• 21:40Speaker 12

  President Trump's sweeping federal budget cuts could literally mean the difference between life and death. The Trump administration has so far terminated more than $1 billion in grants for the National Institutes of Health. Now, the NIH is responsible for more than 80% of the world's investment in biomedical research.

• 22:00Speaker 08

  This led to an outcry from both parties in Congress.

• 22:05Speaker 04

  These actions threaten an entire generation of scientists. They threaten our future as a global leader in biomedical research.

• 22:14Speaker 08

  And was immediately reversed.

• 22:15Speaker 18

  Tonight, those affected by President Trump's federal funding freeze have a little longer to clear up confusion over the order. A federal judge has temporarily halted it.

• 22:23Hannah McCarthy?

  And that reversal was reversed, this time by the Supreme Court, which said that Trump was, in fact, permitted to terminate that grant funding.

• 22:32Speaker 19

  And the Supreme Court's allowing the Trump administration to slash hundreds of millions of dollars in research funding. The court lifted a judge's order blocking $783 million worth of cuts made by the National Institutes of Health.

• 22:43Speaker 08

  News reports are that OMB has recently done the same thing with grant programs from the Centers for Disease Control and Prevention, issued an apportionment footnote saying, "CDC, you may not spend the money in these grants programs until we tell you so." And the way the process works within the executive branch is that an agency cannot spend money if OMB tells them they can't spend money. It actually would violate federal law to spend money that has not been apportioned. So this is a power that's designed for efficient

• 23:22Speaker 08

  management of the executive branch, but it can give actors who may have other ulterior motives a tool to achieve their goals that may be illicit goals or goals that are inconsistent with the law.

• 23:41Nick Capodice?

  So the OMB is allowed to do this, to stop the money from being spent. But they're supposed to use that power to stop money from being spent in an inefficient or imprudent way. And instead, they're using that power to just stop the money. And Samuel was saying, "They're not allowed to do this, but they are doing this."

• 24:04Hannah McCarthy?

  Well, my understanding is that they're using a power they have in a way that the power was not designed for. In fact, they're using it to do the opposite of what the president is tasked with doing. Congress makes the laws, the president enforces them. That is our system. The OMB has created a kind of loophole.

• 24:29Speaker 08

  This can be a tool for bad faith actors who want to defy the policy judgments of Congress to substitute the president's policy judgments for those of Congress. Our system has a pathway for a president who wants to do that, which is you can veto the law when it comes up the first time. You can go to Congress and Get Congress to repeal the law if you don't like it. But absent one of those two things, it's the president's responsibility to carry out the law. So NIH has certain appropriations passed by Congress that say you should finance studies

• 25:12Speaker 08

  into minority health or into healthcare disparities. This president believes that that is inappropriately woke. So this president and this administration have said, we're going to stop NIH from spending the money on those grants. Well, that's not legal, but they have this tool that they can use to carry out an illegal withholding of funds, which we call an impoundment of funds, by saying in an apportionment, we are not going to allow you to spend this money. And that's what they have done at various points. That's led to litigation.

• 25:54Speaker 08

  They've been ordered at various points to actually let the grants go out. Sometimes they've complied, sometimes they've not. But yeah, so it's basically, we have this procedure that's designed for efficient management of a giant executive branch. Even the Department of Health and Human Services, when I was there, had a $1.7 trillion budget every year. Now, you want to make sure that money is spent efficiently. It makes sense to have somebody who's watching to do that. But if they're acting in bad faith and using the tools they have for efficient management

• 26:36Speaker 08

  instead to defy the constitutional system, then that becomes something approaching a constitutional crisis.

• 26:51Nick Capodice?

  By the way, everyone, listen to our episode on constitutional crisis and what that means for more information. All right, Hannah, what exactly happens when the OMB stops or freezes money?

• 27:03Speaker 08

  USAID, that is sort of the classic example.

• 27:06Hannah McCarthy?

  Nick, you might remember that day one was gonna be big for President Trump.

• 27:12Nick Capodice?

  I do. You made a whole episode about it.

• 27:14Hannah McCarthy?

  And one of his day one actions was an executive order freezing funding for foreign aid, so it could be evaluated, and the administration could decide whether it aligned with, quote, "American values."

• 27:26Nick Capodice?

  And look, I know this is relevant now because it was done, but was that legal?

• 27:31Hannah McCarthy?

  As with so many things that we have seen recently, it's kind of up to the courts to tell us, right? So this was challenged in court, there was a temporary restraining order. Ultimately, the administration was allowed to continue. So to sum it up, Nick, what happens when an agency doesn't have the money it needs? It shuts down.

• 27:51Speaker 08

  The fact that the United States has gone around the world supporting development projects, providing healthcare and medical services for people who really need it, providing all sorts of other services for people who really need them around the world, that has been good for the people who receive the services, and it's also been good for the influence of the United States. And if, you know, for those who think that the United States is sort of engaged in a battle of influence with other countries around the world, it's been a really important tool of ours.

• 28:26Hannah McCarthy?

  The administration says that USAID had misspent billions of dollars and had, quote, "little to show since the Cold War." But a recent study in the medical journal, The Lancet, estimated that USAID saved just over 90 million lives, including the lives of 30 million kids under the age of five, from programs that address HIV/AIDS, malaria, and other tropical diseases. A lot of countries have already closed community kitchens designed to prevent starvation and malnutrition, and have closed health centers for lifesaving care.

• 29:06Nick Capodice?

  Hannah, has a president ever acted this way before? Frozen funds, ended programs that Congress had already approved money for?

• 29:17Speaker 08

  The closest we've come is in the Nixon administration, where President Nixon, in a number of programs that he thought were inappropriate, decided not to spend the money on those programs that had been appropriated by Congress. There were a series of lawsuits that all went against President Nixon. But even there, you know, it was a particular program here, a particular program there. What we've seen in the last, you know, six and a half, seven months with this new administration has been, across the board, basically a refusal to accept any obligation to spend

• 30:01Speaker 08

  money that Congress has appropriated unless this president agrees with the policy underlying that appropriation, which is a fundamental shift in our constitutional system.

• 30:15Hannah McCarthy?

  In fact, what came out of this fight with Nixon was Congress reminding everyone that they are the people in charge of the money.

• 30:22Speaker 08

  The Empowerment Control Act was adopted in 1974, you know, part of a wave of legislation in the wake of Watergate and other Nixonian abuses, designed to rein in the executive branch, reassert congressional control.

• 30:37Hannah McCarthy?

  The Empowerment Control Act was in response to Nixon's refusal to spend money in certain circumstances. And there were a lot of lawsuits and a lot of court cases, at least one of which went to the Supreme Court. Nixon lost all of them.

• 30:52Speaker 08

  What the Empowerment Control Act does is it just reasserts the basic constitutional order of business, which is that it's Congress that decides what money should be spent and the purposes it should be spent for and when it should be spent, and the president has to carry that out. The president may have, you know, certain discretion granted to him by Congress, but he doesn't get to second guess Congress's policy judgments. If you look at the reason that was given for the across-the-board grants freeze at the beginning of the administration, it was, you know, in the words of the OMB memo, it was to make sure that the grants were consistent with the president's priorities.

• 31:37Speaker 08

  Well, I mean, the grants were... Issued pursuant to priorities set by Congress. That's, you know, that's not something that the president gets to second guess.

• 31:47Nick Capodice?

  So Samuel is saying that the president and the OMB are not allowed to do this, but they are doing it. And I am reminded of the thing that we have said for years on this show, that the rules and the laws and the constitution, they are only as good as their enforcement. They're just words. You need people to make those words real. And look, I know there have been lawsuits and I know some of them have been effective, but, ah, but what is going on here? What has broken down? Why isn't Congress, I don't know, why isn't Congress mad?

• 32:28Speaker 08

  You know, if you go back and read the Federalist Papers, Madison is particularly adamant on this point, that in our system with separate executive judicial and legislative powers, each branch will check each other. As he says, ambition will counteract ambition. Right? So there's this assumption that people within each branch will defend the prerogatives of their branch of government. And I think the problem is that's broken down. You know, when Madison wrote that, it was before we had the rise of a political party system in the United States.

• 33:09Speaker 08

  You know, and I think one of the most important changes in the last several decades, as the parties have become more ideologically sorted post the civil rights era, is that we don't really have a separation of powers in the same way anymore as an effective matter.

• 33:33Speaker 08

  One of the most well cited Law Review articles of the last 20, 25 years is one that's entitled "Separation of Parties, Not Powers." And that's really what we have now. What we have is when the legislative branch is controlled by the same party as the executive branch, we don't see the legislative branch standing up for its institutional prerogatives. In my lifetime, we did, but that's really fallen apart now because what we're seeing right now is the president and the executive branch completely disregarding multiple aspects of Congress's constitutional power of the purse. Power of the purse is probably the

• 34:16Speaker 08

  one consensus piece of the constitutional system for the framers of our Constitution. And yet, we have an administration that has really been taking that away on multiple fronts, and a Congress that hasn't been standing up for its prerogatives. It's not that they don't have tools. They do have tools. They're just not really using them. And I think that's because we don't have a willingness anymore for people to stand up to a president of their own party on behalf of the interests of their branch of government. And so, that creates a major problem for the constitutional system that's kind of laid out on paper and

• 35:01Speaker 08

  that we have been, you know, we've understood in civics classes when we take civics 101, like this podcast is about. So maybe we should be saying, "This is civics 201 today." What does it really look like?

• 35:19Nick Capodice?

  Haven't you out there ever Googled your own name, like actually done it? You'll find your address, your phone number, maybe even that police report from the time you went to see Rain Man in the movie theater, but you were underage? Maybe that one's just me. But here's the thing. There are companies called data brokers, whose entire business model is collecting your personal information and selling it to advertisers, to strangers.

• 35:43Nick Capodice?

  Sometimes to people running scams. And once your data's out there, it just keeps circulating. That is where incogni comes in. Incogni contacts data brokers on your behalf and sends them removal requests over and over. So your info doesn't just pop right back up. You set it up once and they keep working in the background. You can even track the progress on a dashboard. And for our listeners, we have an exclusive 60% off an annual incogni plan. Just go to incogni.com/civics or use the code civics at checkout. There's a link in the episode description. Remember, they can't harm you if they can't find you.

• 36:29Hannah McCarthy?

  This is Civics 201. I'm Hannah McCarthy.

• 36:33Nick Capodice?

  I'm Nikita Diche.

• 36:37Hannah McCarthy?

  And today, what happens when what's supposed to happen stops happening?

• 36:40Nick Capodice?

  And tomorrow, and tomorrow, and tomorrow.

• 36:44Hannah McCarthy?

  One last thing here, Nick. We are mostly talking about two branches, the executive and the legislative. We talked a little bit about how the third branch, the courts, can and have gotten involved to a certain extent. But I also asked Samuel about the other people involved in this country. We, the people, and what the people actually want.

• 37:05Speaker 08

  These decisions are not popular. They are, in fact, you know, very much underwater in the polling when you, when you look at them. And, you know, usually we have expected that in our democratic system, public opinion would be a check on decisions like this. It's really hard to think of a set of legislative decisions and executive decisions that have been so inconsistent with majority preferences, as expressed in all sorts of ways.

• 37:41Speaker 20

  They are scientists turned activists.

• 37:45Hannah McCarthy?

  Anytime a worker or now a former worker of USAID comes out of the building with their belongings, this crowd is cheering them on. The funding, freezing, and chaos has to stop now. Research, careers, education, and lives on the line with massive funding cuts to medical research.

• 38:06Speaker 08

  But I think part of what's going on here, too, is in the elite constitutional culture in Washington, there's this sort of rise of the idea of the unitary executive, that the president is the only nationally elected official, and therefore, we will sort of take the president's election as a validation by the people of whatever the president wants to do. You know, we see that reflected in all sorts of legal decisions, and we see that reflected in the way that people talk about presidential power now. And the thing is, it's not realistic.

• 38:50Speaker 21

  We all need a good paddling from the principle to set our life on the right track.

• 38:57Speaker 08

  I'd like them to see the repeal of the Roosevelt law, so that he can be a president for a lot more than four years. But we, this country, needs a dictator. I hate to say that, but it's the truth.

• 39:08Speaker 22

  And they say, "We don't need him. Freedom, freedom. He's a dictator. He's a dictator." A lot of people are saying, "Maybe we'd like a dictator."

• 39:14Speaker 08

  I think, you know, this president won a majority of the votes. You know, he is the legitimately elected president. That doesn't mean people agreed with every one of these things. And in fact, you know, I think what you'd say is, people voted for him because they thought inflation was too high, they wanted to lower prices. People were concerned about issues like immigration, not necessarily that they wanted to do all the things he's doing on immigration, but they were concerned about immigration. Did anyone vote? I mean, some people may have voted for this president because they wanted to cut... Public radio or public television.

• 39:57Speaker 08

  But is that anywhere close to a majority of the people who voted, much less who voted for this president? Almost certainly not. Did people want to cut lifesaving AIDS treatments for people in Africa? Is that something people voted for? That's the kind of thing where I think people are taking this, people within our DC-based elite constitutional culture, are taking this unitary executive idea and plebisciter presidency idea too far. Yes, people vote for the president. It is important to understand he has a democratic warrant for significant aspects of his policy program.

• 40:41Speaker 08

  But all the laws passed by Congress have democratic legitimacy as well, and he needs to follow those. And I think we're kind of losing that thread a little bit.

• 40:51Nick Capodice?

  Well, if you want to destroy my sweater, hold this thread as I walk away.

• 40:58Hannah McCarthy?

  You think Weezer would let us play "Undone," the sweater song, on the podcast?

• 41:02Nick Capodice?

  Tell you what, Hannah, I'll have my people get in touch with their people.

• 41:28Hannah McCarthy?

  This episode was produced by me, Hannah McCarthy, with Nick Capricce. Our producer is Marina Henke. Rebecca Lavoie is our executive producer. Music in this episode comes from Epidemic Sound. A reminder that your representatives are not required by the Constitution or other laws to attend town hall meetings and hear from you, their constituent. But you are allowed, by Constitution and other laws, to petition them to hear you. If you want to, for example, ask your representatives why they're sitting on their power of the purse hands. You can call them, email them, show up to town halls they show up to, tell them what you, the people who hired them, need from them. Tell them what their nation requires to thrive. You can find information about how to contact your congressional representatives and about

• 42:13Hannah McCarthy?

  their upcoming events on their individual websites, Facebook pages, Blue Sky accounts, in your local newspaper, if it still exists, et cetera. Remember, we hired them, we can fire them. And they know that. And typically, they want to keep their jobs. Civics 101 is a production of NHPR, New Hampshire Public Radio.

• 42:47Speaker 20

  This is Phil Bredesen, former Democratic governor of the state of Tennessee. If you love digging into how history shapes US policy, check out the new season of You Might Be Right.

• 42:57Speaker 23

  And this is Bill Heslam, former Republican governor. This season, we're asking the questions that have defined every pivotal moment in American political history. Is democracy really under threat? Or is that just a story as old as the republic itself? We're tackling the biggest questions shaping the 2026 midterms, so join us.

• 43:14Speaker 20

  Follow You Might Be Right wherever you get your podcasts.