Erick-Woods Erickson
Congress can draft legislation that rescinds spending found by DOGE. But doing so would go through the normal legislative process and risk a filibuster in the Senate.
Under the actual law governing rescission, the President can transmit a letter to Congress outlining spending he thinks should be rescinded. Congress can, within forty-five days, approve or reject the spending and the filibuster cannot be deployed.
As Elon Musk departs the White House with a presidential press conference today, the President’s team is going to send a rescission package to Congress. They might do it in batches, instead of one bill. My friend Wade Miller at the Center for Renewing America makes the the case for a pocket rescission.
Essentially, if the President transmits the rescission to Congress toward the end of the fiscal year with less than forty-five days for consideration before September 30th, the President can effectively rescind the spending on his own. From Wade Miller:
A “pocket” rescission is a standard rescission, similar to the process described above, that occurs when the president sends his rescission message to Congress with fewer than forty-five days left in the fiscal year (which ends on September 30) and then opts to withhold or pause the obligations within the message. Importantly, in this instance, the fiscal year ends before the forty-five-day statutory period for the executive branch to withhold the obligations expires. Therefore, any budget authority for funds that expires at the end of the fiscal year within the rescission lapses automatically. Congress may take up the rescission message and vote to rescind the authority or even vote to affirmatively continue the obligations. Regardless, should the executive branch continue to withhold the budget authority, which it has the statutory power to do for the full forty-five-day window, the proposed spending reductions will take effect.
If this works, it is worth delaying the DOGE cuts.
Right now, with a three seat majority, any three Republicans could grandstand and stymie the effort.
Undoubtedly, the President can cut NPR and PBS funding this way and prevent any liberal Republicans from saving the institutions.
Regardless, good on President Trump for taking rescissions seriously and preparing to send some cuts to Congress.
Also, thanks to Elon Musk for the work DOGE did. A lot more sacred cows must be slaughtered in Washington to rein in our fiscal profligacy. But this was a good start and shows just how aligned against cuts most of the bureaucracy is.
In Defense of Leonard Leo
The President is unhappy because one of his judicial appointees voted to block his tariffs. As a result, he has gone on a tirade about the Federalist Society and called Leonard Leo, the brains behind the organization, a “sleaze bag.”
For the record, Tim Reif, who Donald Trump appointed to the court of trade, had been an advisor to Democrats and a Democrat staffer on Capitol Hill. He was also not a Federalist Society member at the time of his appointment. Reif was a situation where the President did not listen to Leo or the Federalist Society and ignored conservative warnings.
Leonard Leo helped Donald Trump shape the United States Supreme Court. In doing so, Leo ensured Trump a victory on immunity that not only helped Trump avoid prosecution but also made it easier now for Trump to operate as President. Just the other day, that same Supreme Court allowed President Trump to fire appointees to supposedly independent commissions and seems set to overrule Humphries Executor, something most. Federalist Society members have long supported.
It was also Leonard Leo’s leadership of the Federalist Society that advanced a large number of Trump-appointed judges who stymied Joe Biden and have also obligingly allowed parts of Donald Trump’s agenda to proceed. Look no further than the advance work the Federalist Society and Leonard Leo did on finding such good picks for the Fifth Circuit Court of Appeals.
Look also at the Federal Circuit Court of Appeals that just paused the trade court’s decision on tariffs.
The President has gotten far more wins than losses from judges in the Federalist Society.
I understand the President is frustrated with federal judges slowing him down. But he is not a king. He does not always get his way. Judges, once appointed, serve for life and that fosters an independent streak.
But Trump stands to rack up more wins than losses because of Leonard Leo and the Federalist Society and everyone who supports the Trump agenda is better off with Federalist Society judges in the court system than those who are not.
In a statement, Leonard Leo said, “I’m very grateful for President Trump transforming the Federal Courts, and it was a privilege being involved. There’s more work to be done, for sure, but the Federal Judiciary is better than it’s ever been in modern history, and that will be President Trump’s most important legacy.”
He’s right. The President has shifted the Supreme Court and most of the appellate courts in his direction and has done so with Federalist Society members in those seats. He may be frustrated, but turning on the Federalist Society just plays into the hands of the left. The last time a Republican President ignored the Federalist Society, we almost got Harriet Miers. And before that, we did get David Souter
