If Big Law Works on Trump’s Tariffs, Congress Should Pay For It

As part of their settlements with the Trump administration, several leading law firms reportedly have given free legal services to the Commerce Department.

Democrats have sent letters raising questions about these free services’ legality and demanding responses by Oct. 6 that detail the work the firms have done. Even if the firms’ work is somehow technically legal, legislators are right to be worried about its implications for congressional authority.

An important statute called the Anti-Deficiency Act generally requires that some existing appropriation—meaning a statute allowing Treasury expenditures—support any government contract or commitment of funds.

In the 19th century, federal agencies regularly overran their budgets and went to Congress afterward for new appropriations to make up the shortfall. In 1806, Rep. John Randolph of Virginia complained that executive officials behaved “like a saucy boy who knows that his grandfather will gratify him, and over-runs the sum allowed him at pleasure.” Despite such complaints, this sort of behavior continued, to varying degrees, for more than a century.

Congress enacted the ADA in 1870 to stop such overspending. In its original form, the law forbid agencies from exceeding their appropriations or entering contracts without an appropriation to pay the resulting costs. But agencies still sometimes got around appropriations limits by having personnel work extra hours for free, hoping Congress would later pay them retroactively.

In 1884, Congress added a provision forbidding such acceptance of “voluntary services” except (in the current statutory formulation) “for emergencies involving the safety of human life or the protection of property.”

It took further reforms, including the addition of criminal penalties to the statute in 1905 and major budget reforms in 1921, to bring agency spending under more reliable control. The ADA is the reason the government now “shuts down” when annual appropriations run out, as they did on Oct. 1.

Because agencies can’t incur spending obligations without a supporting appropriation, they can’t commit to paying employees’ wages until Congress appropriates new funds. And because agencies also can’t accept “voluntary services” from employees hoping to later get paid, those employees can’t work at all for the government unless they fall within the exception for functions (like air traffic control and some law enforcement) that protect lives and property.

How do these principles apply to the law firms? The administration and the firms will probably claim that the firms aren’t providing “voluntary services” in the sense proscribed by the ADA because they aren’t hoping to get paid later. In fact, they may well have signed waivers disclaiming any such hope of future remuneration.

Yet this theory may be a stretch in this context. For one thing, the firms are probably hoping to curry favor with the administration by providing so much work. For another, they hardly pledged these services gratuitously of their own free will in the way that a true unpaid volunteer normally would. On the contrary, the firms appear to be doing free work only because the administration took or threatened adverse actions against them such as revoking lawyers’ security clearances or seeking penalties for alleged civil rights violations due to DEI hiring.

Regardless, the administration’s legal creativity in inducing free services from top-flight firms is a significant threat to congressional power. Congress creates federal agencies, such as the Commerce Department, and defines their budgets. It typically budgets for just one year at a time so that it can keep tabs on what agencies are doing and make any desired changes in the next annual appropriations cycle. It also calibrates the level of resources available for different agencies and functions. Congress determines in effect what laws will be vigorously enforced and which ones will be lower priorities or even not enforced at all.

These congressional powers are essential to contemporary checks and balances. Over time, Congress has empowered agencies overseen by the president to set policy in many areas, and presidents have claimed significant powers with respect to foreign affairs and the use of military force.

In this context, Congress’s main tool for pushing back on presidential initiatives or halting them altogether is its authority to impose limits or conditions on its annual appropriations. By going outside such appropriations and commandeering private assistance instead, the administration has circumvented this key congressional check on its power.

It could be argued that the firms exposed themselves to such tactics by pursuing unlawful DEI employment practices or otherwise violating federal law. But settlements for civil rights violations or other legal issues should resolve those issues and not impose unrelated obligations. Congress didn’t enact civil rights protections to enable presidents to extract free services from non-compliant parties.

It’s also true that foreign affairs is an area of special presidential authority and that the services to the Commerce Department seem to have been related to negotiation of tariff deals. But while presidents have sometimes employed private parties voluntarily as diplomatic envoys, such envoys served of their own free will. In any event, demanding free legal work from the country’s top law firms is a far cry from the sort of control over diplomatic communications that presidents have previously claimed.

This administration has sought in many ways to establish greater executive control over government spending. The law firm deals fit this pattern, and they may be a tempting example for future presidents: If budget deficits necessitate government austerity in the years ahead, presidents may find themselves looking for ways to accomplish their goals with private help instead.

But Congress should be required to authorize any such use of private resources. Otherwise, we will have taken another big step toward unchecked presidential governance.

This article does not necessarily reflect the opinion of Bloomberg Industry Group, Inc., the publisher of Bloomberg Law, Bloomberg Tax, and Bloomberg Government, or its owners.

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Zachary Price is a professor at the University of California College of Law, San Francisco.

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