Amicus Curiae Brief — Department of State, et al., Applicants v. AIDS Vaccine Advocacy Coalition, et al.

No. 25A269

In the Supreme Court of the United States

DEPARTMENT OF STATE, et al.,

Applicants,

v.

AIDS VACCINE ADVOCACY COALITION, et al.,

Respondents.

On Application for Partial Stay of the Injunction Issued by the

United States District Court for the District of Columbia

BRIEF FOR AMICUS CURIAE ALAN B. MORRISON

IN SUPPORT OF RESPONDENTS

Alan B. Morrison

Counsel of Record

George Washington University Law School

2000 H Street NW

Washington D.C. 20052

202 994 7120

abmorrison@law.gwu.edu

September 11, 2025

TABLE OF CONTENTS

TABLE OF AUTHORITIES... eceeceeeeeee cee creeeeeee eee taeeasesaesesecseassasaesansaesseeeesieeaases ii

INTEREST OF THE AMICUS 00... eccceenecneeneeneeeenececeeerenereeieestneseesnessenensneneees 1

INTRODUCTION AND SUMMARY OF ARGUMENT. ....0.. ee eecseeeerseereeneeneeeeneenes 2

ARGUMENT 000. ceccccceeceeetecneeecneeeeeaeenecneesestenestectieversasenessensessesecsassassusneesenseesresseseeseee 3

THE APPLICATION FOR A STAY SHOULD BE DENIED... 3

I. The ICA Does Not Preclude Actions by Private Parties to Enforce

Laws Appropriating Federal Funds ..............c0:cceseeeceeeeeeeeeneee 3

II. The Inability of Congress to Act on a Rescissions Request

Can Not Authorize the Requested Rescission.............:cc:ecsseeeeee 8

CONCLUSION 0. cccceccceeeenessseesceseseseesaecseessecscesaeececansesaeeapsaesneeaeesanecsnssneceaeeeesersens 11

TABLE OF AUTHORITIES

Cases

Bowsher v. Synar, 478 U.S. 714 (1986) 00... ceececessnene sence cerseeecrssnecersseaeresseneeseeses 5

Carnahan v. Maloney, S. Ct. No. 22-425 (2028)..... eee ecsceeseeneeeeceneceesnneeecrsseusernenesens 6

City of New Haven v. United States, 809 F.2d 900 (D.C. Cir. 1987) 0.0... 1, 3, 4, 6,7

Clinton v. City of New York, 524 U.S. 417 (1998) ..... ec eeccecseecesseseecseseeeeeeseeeenerene 3, 9, 10

In re Atken County, 725 F.3d 255 (D.C. Cir. 2018) occ eee cneeeeseeeessesaeeesenensaesenenees 7

INS v. Chadha, 462 U.S. 919 (1988) .....ccceeecccecceeeceeeceneecneecesaecesseeessatseeecsseepeaseesneees 6

State Highway Comm'n of Mo. v. Volpe, 479 F.2d 1099 (8th Cir. 1978)... 1

Train v. City of New York, 420 U.S. 35 (1975) ......cceecceeccceseeseneeceeneeseeeseeesnnesenssaeaeees 1,3

Train v. Campaign Clean Water, Inc., 420 U.S. 136 (1975) oo... cee eeeeseeereereeneersees 1

Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1953) ooo. ec eeeeeeceeeeneeeneeee 4

United States Constitution

Article 1, SeCtion 7 ......ccccccccccne cee see cece see ne eee ene nee bea DOE HEE A SHOE OEE SEALED EROS EOE EEE GES 8, 10

Statutes

Administrative Procedure Act, 5 U.S.C. § 705.00... ....ccccceeecescneeneeee eee eee eee seente teens 4

Impoundment Control Act of 1974, 2 U.S.C. § 681... ccc esse teeeeneeneenees 1, 2,5

SEC CELOTI OG. eee eee een ennai neler eels 9

Section 688.0... ccccceccsscesecscceeeeecserseveeceeeeeceeesesnsenesnsensessssessesaecaessersenscneceeerensensenss 5

Section 684.000... ccccecceccescecscccsecseccececceeerereeseesesesssseseseseeeeseceeeeeeeseseesereeees 5, 6,7

Section 687 oo... ccc ceecceecsceeseecenecessseessaesecsseeessasesasesssesseeessueceeconeeseeseseessnaasasenaes 5

Line Item Veto Act, 110 Stat. 1200............cccccc sec ecccc ene ee nec cenenenee sea seneneeseae nae eeaess

Pub. L. 100-119, 101 Stat 754 (1987) oer cre eccre sere eseeeeeeeeeeeneeiee bee

iii

INTEREST OF THE AMICUS!

This brief is submitted by Alan B. Morrison who is an associate dean at the

George Washington University Law School where he teaches constitutional law. He

filed briefs amicus curiae in these cases at both the merits and rehearing en banc

stages in the Court of Appeals. Those briefs focused on the Government’s argument

that the Impoundment Control Act of 1974, 2 U.S.C. §§ 681, et seq. (ICA),

eliminates any right of private parties to sue over claims that federal agencies have

wrongfully refused to spend funds appropriated by Congress.

Amicus has considerable direct experience regarding impoundments both

before and after that Act was passed. He was counsel for twenty-four Senators who

filed an amicus brief (and were invited to present oral argument) opposing the

impoundment in State Highway Comm’n of Mo. v. Volpe, 479 F.2d 1099 (8th Cir.

1973). He was lead counsel or co-counsel in a number of other impoundment

challenges both before and after the ICA was enacted, including Train v. Campaign

Clean Water, Inc., 420 U.S. 136 (1975) (the companion case to Train v. City of New

York, 420 U.S. 35 (1975)), and City of New Haven v. United States, 809 F.2d 900

(D.C. Cir, 1987).

' No person other than amicus authored this brief in whole or in part or contributed

money that was intended to support the preparation or submission of this brief.

1

INTRODUCTION & SUMMARY OF ARGUMENT

There are two basic propositions of law that defeat the request for a stay of the

order of the District Court. Before turning to the legal flaws in that request, the

request should be denied for another reason. The main concern of the plaintiffs at

this moment is not that they immediately receive the money to which they are

entitled, but that the funds not lapse on September 30, 2025. As courts of equity, the

federal courts surely have the power to prevent the unjust result of having these

funds lapse when plaintiffs have made a strong showing of entitlement as the lower

courts have found. In the District Court’s preliminary injunction order, it specifically

gave the Government the option to request that the Court "extend the relevant

expiration dates of the funds" in order to eliminate the pressure for an immediate

decision (App 220a). The failure of the Government to seek to avoid that time crunch

by taking up the District Court’s suggestion is reason alone to deny its request to stay

that court’s order.

On the merits, contrary to the Government’s submission, the Impoundment

Control Act of 1974, 2 U.S.C. §§ 681 et seq. (ICA), does not preempt or preclude claims

by persons entitled to compete for or obtain appropriated funds. Both before and after

the enactment of the ICA, federal courts, including this Court, entertained lawsuits

by persons injured by wrongful impoundments and ruled on the merits, generally

against the withholding. Nothing in the ICA changed the availability of private

litigation to prevent unlawful impoundment.

nN

Second, the ICA allows the President to rescind appropriated funds only if

Congress has approved his proposed rescission. But if Congress has not approved the

rescission within the 45 days allowed by the ICA, the law appropriating the funds

controls. At that point, the constitutional limits on the ability of the President to

refuse to spend appropriated funds under Clinton v. City of New York, 524 U.S. 417

(1998), require that the funds be obligated. The fact that there may or may not have

been a violation of the ICA is irrelevant. Unless the President has an independent

authority to refuse to spend the money, which he does not, he must spend it.

ARGUMENT

THE APPLICATION FOR A STAY SHOULD BE DENIED.

I. The ICA Does Not Preclude Actions by Private Parties to Enforce

Laws Appropriating Federal Funds.

To read the application for a stay, one would never know that there is a long

history before ICA, as well as cases following it, in which the courts have regularly

enforced appropriations laws when the President has sought to impound funds under

them. These include Siate Highway Comm'n of Mo. v. Volpe, 479 F.2d 1099 (8th Cir.

1978), Train v. City of New York, 420 U.S. 35 (1975), and City of New Haven v. United

States, 809 F.2d 900 (D.C. Cir. 1987). There is not a word in the ICA that hints that

the ICA would have the preclusive effect that the Government asserts when the whole

thrust of the Act was to make it more difficult, not easier, for the President to refuse

to spend appropriated funds, let alone to overturn all the prior cases to the contrary.

Impoundment cases have always been about whether the refusal to spend

appropriated funds was lawful. It is of no legal significance that the lower court

initially ruled that a claim could be directly brought against the President, whereas

the case is now one under the Administrative Procedure Act, 5 U.S.C. § 702, against

the agencies that spend the appropriated funds. Either way, the most directly

applicable precedent is Youngstown Sheet & Tube Co. v Sawyer, 343 U.S. 579 (1952),

in which the defendant was an agency head acting at the direction of the President,

and the Court had no difficulty upholding the claim that the President lacked

statutory authority to take control of the steel mills. Whether Youngstown is viewed

as a ruling on the President’s statutory powers, or a holding that, because he did not

have a statutory basis to act, his executive order was unconstitutional, is of no

consequence. So here, it is irrelevant whether the illegality is that the President

exceeded his constitutional authority or his statutory powers because the result in

either case is the same.

The Government’s principal merits argument is that the passage of the ICA

wiped out the right of private parties to sue to halt unlawful rescissions. According

to the Government, but no longer the panel in the Court of Appeals, the ICA

effectively overturned all the prior cases that allowed suits to prevent impoundments.

If the Government is correct, the Court of Appeals (and the Department of Justice)

failed to note that momentous change in 1987 where the challenge to the deferral at

issue in City of New Haven was sustained.

The undisputed goal of the ICA was to prevent unilateral rescissions, which is

directly contrary to the Government’s conclusion that private parties could no longer

sue to prevent impoundments. There is also no textual support for that conclusion,

and the disclaimer in 2 U.S.C. § 681 is to the contrary, providing that the ICA “shall

not be construed as ...(3) affecting in any way the claims or defenses of any party to

litigation concerning any impoundment.”

The Government argues that 2 U.S.C. § 687, which authorizes the Comptroller

General, an agent of Congress, Bowsher v. Synar, 478 U.S. 714 (1986), to assist

Congress in enforcing the ICA, is the exclusive means by which the President may be

restrained from impounding appropriated funds. Under that provision, the

Comptroller General may, if he determines that an agency has not made funds

available for obligation, bring suit “to require such budget authority to be made

available for obligation.” The availability of that avenue to redress impoundments

says nothing about whether it is exclusive means to do so. In light of the substantial

history of private plaintiffs successfully suing to stop unlawful impoundments, and

the absence of any language of exclusivity in the ICA, the Government’s exclusivity

argument is without merit.

There are several additional significant flaws in the Government’s argument.

The Comptroller General must first learn about the unlawful withholdings, which is

made more difficult when the President, as he did here, fails to send the messages

required by sections 683 and 684. Then the Comptroller General must investigate

the alleged withholding to determine whether it is lawful, and if not, section 687 also

requires that he must file an explanation for his conclusion with the Speaker of the

House of Representatives and the President of the Senate, and then wait another 25

days before filing suit. Even if a suit is successful, the ICA does not assure that the

beneficiaries of federal programs will be able to use any favorable judgment on the

basic issue of impoundment to obtain the funds that were illegally withheld. In

addition, the law is entirely discretionary, and when Congress is controlled by the

President’s party, it is highly unlikely that the Comptroller General will sue the

President, let alone bring suits to cover every impoundment. In short, if Congress

wanted to replace private enforcement with the Comptroller General, it would never

have provided such a limited substitute. 2

Finally, Congress’s attitude toward impoundment is exemplified in the

aftermath of the City of New Haven decision. As originally enacted, the deferral

authority in section 684 was subject to a one-House veto, which was subsequently

declared unconstitutional in INS v. Chadha, 462 U.S. 919 (1983). The Government

argued that the deferral authority nonetheless survived, but the D.C. Circuit had no

2 Given its long history of opposing efforts by Congress to bring suits against the

Executive Branch, the Department of Justice would likely move to dismiss any suit

under section 687. See Carnahan v. Maloney, S. Ct., No. 22-425 (2023), in which the

question presented by the Solicitor General was “Whether individual Members of

Congress have Article III standing to sue an executive agency to compel it to disclose

information that the Members have requested under 5 U.S.C. 2954.” The Carnahan

petition was granted, but the case was not decided because the plaintiffs moved to

dismiss on mootness grounds. See also the concluding sentence in note 1 of the

Application for a Stay: “Nor does this case raise any issue about whether suits by the

Comptroller General against the Executive Branch are cognizable under Article II.”

6

trouble concluding that the deferral provision could not stand on its own, with no

check, because section 684

was designed specifically to provide Congress with a means for

controlling presidential deferrals. As a consequence of the Supreme

Court’s decision in Chadha, however, that section has been transformed

into a license to impound funds for policy reasons. This result is

completely contrary to the will of Congress, which in amending the Anti-

Deficiency Act sought to remove any colorable statutory basis for

unchecked policy deferrals. We cannot imagine that Congress would

have acted in complete contravention of its intended purposes by

enacting section [684] without a legislative veto provision.

City of New Haven, 809 F.2d at 909 (emphasis in original). Shortly thereafter,

Congress amended section 684 to its current version, which allows the President to

make limited non-policy deferrals, Pub. L. 100-119, 101 Stat 754, section 206 (1987),

yet the Government’s position would effectively enable the President to make policy

deferrals on a wholesale basis unless the Comptroller General decided to sue over

each of them. See also In re Aiken County, 725 F.3d 255, 260 (D.C. Cir. 2013) where

the D.C. Circuit, in an opinion written by then-Judge Kavanaugh, issued a writ of

mandamus against the Nuclear Regulatory Commission, which had refused to spend

funds that Congress had directed it to spend, observing that “the President and

federal agencies may not ignore statutory mandates or prohibitions merely because

of policy disagreement with Congress.”

It is simply not credible that the Congress that enacted the ICA in 1974, in

response to the unlawful impoundments of President Nixon, and the Congress that

strengthened the ICA in 1987, would have included in the ICA provisions that would

essentially enable the President to engage in wholesale rescissions even though every

portion of the ICA points in the other direction.

II. The Inability of Congress to Act on a Rescissions Request

Can Not Authorize the Requested Rescission.

The Government seeks to justify its refusal to spend the remaining $4 billion

in appropriated funds by a device known as a “pocket rescission,” apparently seeking

to analogize it to the pocket veto specifically provided to the President in the final

sentence in Article I, section 7, clause 2 of the Constitution. As noted, once the

President sends a rescission request to Congress, Congress has 45 days within which

to approve the request. If both Houses of Congress approve the request (and the

President signs it), it becomes a law, superseding the original law. If Congress does

not agree to change the law, the funds must be obligated in accordance with the

original appropriations law.

The Government argues that if, for example, a rescission message is sent to

Congress on August 20, and the 45 days would not expire until early October, the

ICA, by its terms, would not prevent the President from impounding those funds. But

that only gets the President part way home. As the pre-ICA cases held, unless the

appropriations statute gave the President discretion not to spend the money (which

these do not), the President must spend the funds. Nonetheless, the President seems

to argue that the ICA would impliedly authorize him in that situation to rescind any

funds for which no action was taken during the prescribed 45 days.

In fact, under the ICA, Congress will almost always have much more than 45

calendar days to act, and hence the law presents a wider window (greater loophole)

for pocket rescissions. The operative provisions are section 682(3), which provides

that the days for passing on a rescission request are “45 calendar days of continuous

session” of both Houses, as further defined (and expanded) by section 682(5). Under

the latter provision “an adjournment of more than 3 days to a day certain shall be

excluded in the computation of the 45-day period.” Given the traditional month long

August recess, unless the message is sent to Congress by the end July, the 45 days

are unlikely to expire before the end of the fiscal year on September 30th. Indeed,

July 31st may be too late if, as happened this year, the House adjourned on July 24th

and did not reconvene until September 8th. Again, the size of this loophole

underscores the conclusion that as a matter of construction of the ICA, Congress

never gave the President a pocket rescission power under the ICA.

But even if the ICA did not bar pocket rescissions, the Constitution does. The

problem for the President is that, even when Congress enacted a statute expressly

allowing the President to refuse to spend specific items in an appropriations law, this

Court held that the statute seeking to give the President that power was

unconstitutional. Clinton v. City of New York, 524 U.S. 417 (1998). The statute at

issue there —the Line Item Veto, 110 Stat. 1200—allowed a President, within five

calendar days (excluding Sundays) of signing a bill into law, to send a message to

Congress selecting specific spending items in an appropriations law that he wished

to “cancel,” i.e., decline to spend. The law allowed the President to do that for

essentially any reason the President wanted, which included policy disagreements

with Congress, as well as to stop what he considered to be wasteful spending. Unlike

under the ICA, the President did not have to give his reasons or provide any other

information, but like the ICA, there were provisions that provided reasonable

assurances that Congress would be able to vote to reject or approve each item that

the President proposed to be canceled. Under that Act, the failure of Congress to enact

a law to override the President’s cancellation, or the failure of Congress to override a

veto of a law that Congress did enact, would result in the cancellation being upheld.

By contrast, under the ICA, the failure of Congress to support a President’s proposed

rescission results in the rescission being denied.

The Court in Clinton struck down the Line Item Veto as inconsistent with

Article I, section 7, which requires that all laws, including laws that alter or repeal

existing laws, must be approved by both Houses of Congress and signed into law by

the President (or have his veto overridden by two-thirds of both Houses). The Court

ruled that once the President signed the original appropriations bill into law, any

cancellations of items in that bill must go through the same law-making steps.

Because the cancellation process in the Line Item Veto Act did not provide for the

affirmative approval of Congress, it violated Article I, section 7. Because the

President may not constitutionally refuse to spend appropriated funds even with

Congress's express authorization, he surely cannot do it when Congress fails to act

on his proposed rescission request within the 45 days provided by the ICA.

10

CONCLUSION

For the foregoing reasons, as well as those set forth in the oppositions of the

plaintiffs, the Application for a Stay should be denied.

Respectfully Submitted,

Alan B. Morrison

George Washington University Law School

2000 H Street NW

Washington D.C. 20052

(202) 994 7120

abmorrison@law.gwu.edu

Counsel for the Amicus

September 11, 2025