Will Alito, Thomas, Gorsuch, Kavanaugh & Cony Barrett Save Us From Trump’s Constitutional Crisis?

Trump Lashing Out Against Stability And Order... Again

Trump is purposely triggering a constitutional crisis that his regime knows they will win in the most partisan Supreme Court since Roger Taney’s court (1836-’64), whose one-sided decisions were, at least in part, responsible for the Civil War. Yesterday, Katherine Tully-McManus and Jordain Carney reported that congressional Dems toothlessly vowed to fight Trump’s freeze on federal financial assistance, calling for a delay in the confirmation of Project 2025 author Russ Vaughn as OMB head, threatening potential court actions and warning Republicans about potential impacts on their own states. All federal assistance ended last night at 5 pm. Schumer railed that “It's a dagger at the heart of the average American family in red states and blue states, in cities, in suburbs, in rural areas. It is just outrageous.” It’s also “unlawful under the Impoundment Control Act of 1974, a law that Trump and his allies in turn call unconstitutional. ‘We have a constitutional crisis,’ said Sen. Jeff Merkley (D-OR), the top Democrat on the Senate Budget Committee, which is scheduled to vote Thursday on Russ Vought, Trump’s White House budget chief and an architect of the spending freeze. ‘Congress holds the power of the purse,’ added Senate Appropriations Vice Chair Patty Murray (D-WA). ‘That is very clear in the Constitution.’”

While states are expected to take the lead with lawsuits, organizations representing people impacted by the funding freezes could also have legal standing to sue.

In addition to throwing U.S. agencies, states and localities into confusion over the fate of their federal funding, this move could jeopardize congressional efforts to keep the federal government funded past a March 14 shutdown deadline.

Murray warned that the White House’s move amounted to “massive, massive overreach” that could imperil the traditional bipartisan negotiations over federal funding.

“Can you imagine what it's going to be like … if those agreements mean nothing? That somebody can sit back and say, ‘Sure, I'll give you that,’ knowing full well that their president's in power and they will keep the funding out?” Murray said Tuesday. “We cannot function as a democracy in this country if we cannot respect and abide by our ability to make agreements in Congress.”

This is the memo Vaughn brazenly had his puppet acting director send around. Steve Vladeck is terming it The Impoundment Crisis of 2025, noting that “the consequences are potentially cataclysmic— for virtually all foreign aid (including the distribution of HIV drugs in poor countries); for medical and other scientific research in the United States; for tons of different pools of support for educational institutions; and for virtually every other entity that receives federal financial assistance… The memo directs all agencies that administer affected funds to submit detailed lists of projects suspended under the new order by February 10. Those agencies in turn must assign “responsibility and oversight” to tracking the federal spending to a senior political appointee, not a career official. But there is no guarantee that the spigot will be turned back on in two weeks; and in the interim, the withholding of so much money will almost certainly cause irreparable harm to at least some of the affected parties even if it’s fully restored at the end of the ‘pause.’ Thus, even if this measure is a stopgap (and that’s debatable at best), it’s one that is likely to cause numerous crises all its own.”

Vladeck explained that “In essence, the Trump administration is claiming the unilateral power to at least temporarily ‘impound’ tens of billions of dollars of appropriated funds— in direct conflict with Congress’ constitutional power of the purse, and in even more flagrant violation of the Impoundment Control Act of 1974 (ICA). When, not if, recipients of the frozen funds sue to challenge agencies’ compliance with the Vaeth memo, it’s a virtual certainty that the Trump administration will argue that the ICA is unconstitutional and that the President has inherent constitutional authority to impound. That argument is a loser, but it’s a good bet that it’s going to be up to the Supreme Court to say so— and probably a heck of a lot sooner than we might have predicted as recently as yesterday… [E]ven for judges and justices who might be somewhat more sympathetic to nuanced impoundment claims, the Vaeth memo… ain’t it. Instead of a carefully calibrated argument against the compulsory nature of a specific appropriation, the Vaeth memo is a clumsy (‘Marxist’?!?) broadsword. Perhaps it’s so transparently harmful, preposterous, and unlawful that we’ll see the administration walk it back in the coming days. If not, it stands to reason that the Supreme Court will have to settle the matter within the next few weeks— and that even this Court is likely to oblige.”

The question of whether a President can refuse to spend— to “impound”— funds Congress has appropriated for a designated purpose is one that has come up every so often in American history, albeit not on this scale. Sometimes, Congress passes statutes that give at least some spending discretion to the President. But absent such authorization, the prevailing consensus has long been that Congress’s power of the purse (the Spending Clause is the very first enumerated regulatory power that the Constitution confers upon the legislature) brings with it broad power to specify the purposes for which appropriated funds are to be spent— and that a broad presidential impoundment power would be inconsistent with that constitutional authority. If the President can accomplish Congress’ intended goal by spending less money, that’s one thing. But simply refusing to spend the appropriated funds because the President is opposed to why Congress appropriated the money in the first place is something else, altogether.

Even the Justice Department’s Office of Legal Counsel, which tends to err on the side of the President in these kinds of separation-of-powers disputes, concluded in 1988 that the overwhelming weight of authority “is against such a broad power in the face of an express congressional directive to spend.” As OLC explained,

There is no textual source in the Constitution for any inherent authority to impound. It has been argued that the President has such authority because the specific decision whether or not to spend appropriated funds constitutes the execution of the laws, and Article II, Section 1 of the Constitution vests the “executive Power” in the President alone. The execution of any law, however, is by definition an executive function, and it seems an “anomalous proposition” that because the President is charged with the execution of the laws he may also disregard the direction of Congress and decline to execute them. Similarly, reliance upon the President’s obligation to “take Care that the Laws be faithfully executed,” Article II, Section 3, to give the President the authority to impound funds in order to protect the national fisc, creates the anomalous result that the President would be declining to execute the laws under the claim of faithfully executing them. Moreover, if accepted, arguments in favor of an inherent impoundment power, carried to their logical conclusion, would render congressional directions to spend merely advisory.

Thus, even without the Impoundment Control Act, the kind of across-the-board impoundment the OMB memo is effectuating, even temporarily, should pretty plainly be unconstitutional.

But the Impoundment Control Act appears to resolve the illegality of this move beyond dispute. Enacted in response to an unprecedented volume of impoundment efforts by President Nixon, the Act creates a procedural framework within which the President can attempt to impound certain appropriated funds. Specifically, the ICA creates a fast-track procedure for Congress to consider a President’s request (a “special message”) to rescind funds he identifies for reasons he specifies.

…It stands to reason that, unless this directive is quickly rescinded (and perhaps not even then), there will quickly be lawsuits by those who were entitled to the frozen federal funds challenging agencies’ compliance with the Vaeth memo on both constitutional and statutory grounds. (Even relatively narrower views of Article III standing would look favorably upon plaintiffs who had been relying upon frozen federal funds.)

… [A]s much as this Court has embraced the “unitary executive”  theory of executive power, impoundment has never been a central feature of that school of thought— as reflected in, among lots of other places, the OLC opinion referenced above. It’s one thing to believe that the President must have unitary control of the executive branch; it’s quite another to believe that such control extends to the right to refuse to spend any and all money Congress appropriates.

Señor T’s audacious power grab while provoking a direct challenge to Congress’s constitutional authority represents the latest salvo in his assault on democratic norms. While Democrats, states, and affected organizations prepare to fight back in court, the broader implications are clear: this isn’t just a battle over appropriations; it’s a test of whether the foundational balance of powers in our democracy can hold.

The Impoundment Control Act was designed to prevent precisely this kind of executive overreach. Trump’s team, fully aware of its dubious legal footing, is banking on a Supreme Court that has already shown an alarming willingness to undermine precedent in favor of partisan outcomes. If the Court sides with Trump, it will not just enable the hollowing out of Congress’ power of the purse— it will normalize the use of financial coercion as a tool of autocracy. This isn’t merely about the legality of the OMB memo; it’s about the fragility of American democracy under the weight of an increasingly authoritarian executive branch. The question before us is whether this rump Congress, run by an utterly pathetic Trump lackey, and the partisan Supreme Court have the will to stop this escalation— or whether, like the Taney Court’s disastrous rulings before the Civil War, today’s judiciary will push us further down the path of national crisis. What hangs in the balance isn’t just appropriations or funding but the very principle of constitutional governance itself.

Meanwhile, congressional Democrats were furious. Yesterday, Ted Lieu, sent this message to his constituents in L.A., some of whom are struggling with the fire damage that upended their lives: “The Trump Administration's reckless freeze on federal funds is not just illegal— it is profoundly immoral. And why is the Trump Administration doing this? Because they want to steal taxpayer money to fund tax cuts for billionaires. This abrupt and ill-advised decision threatens to strip essential resources from firefighters, small businesses, elementary schools, cancer researchers, homeless veterans, opioid treatment centers, hungry children, and countless others who rely on these vital programs. Thanks to this rash Executive Order, our own neighbors— still reeling from the fires— may not have access to the SBA and FEMA grants they need to help put their lives back together. I am outraged. Every American stands to lose from the programs that Trump is choosing to neglect. As Democrats, we are resolutely committed to fighting back against this unlawful action through every means at our disposal— be it legislation, the courts, or ensuring that our fellow citizens fully grasp the stakes involved.”