Mark Schiefelbein/AP Photo
President Donald Trump speaks to reporters aboard Air Force One as he travels from Las Vegas to Miami, January 25, 2025.
Donald Trump’s actions in his second term thus far can be slotted into three buckets: pardons, purges, and pauses. The pardons have gotten the most attention, and have damaged Trump politically, something likely to continue as the character of the rioters released comes to light. The purges have been noticed, too: Purges of Jack Smith’s prosecutorial team and USAID’s entire career staff leadership and 17 inspectors general and many more across the bureaucracy. These feel like a combination of raw vengeance and preparation, like the armed gang shooting out the closed-circuit cameras before commencing with the robbery.
But the pauses: Those need more attention. Because they are actually the most lawless, brazen, unconstitutional actions that this administration has yet taken, and if sanctioned by a conservative Supreme Court, they would amount to a full disbanding of our system of government.
This began with the day one executive order ending disbursement of so-called “Green New Deal” funding under the Inflation Reduction Act and the bipartisan infrastructure law. It continued with a pause on research grants at the National Institutes of Health and a pause on foreign aid, including the wildly successful bipartisan funding program treating AIDS in Africa, which has saved an estimated 25 million lives, and initiatives interdicting drugs coming in from Colombia. (Military funding for Israel and Egypt is exempted, making this a conscious choice rather than an across-the-board hiatus.) And now, as Marisa Kabas first reported, all federal grants and loans have been paused in a memo from Matthew Vaeth, the acting head of the Office of Management and Budget. This is supposed to go into effect at 5:00 p.m. today.
The pause would include student loan payments to universities, grants for basic research, grants to state and local governments for a wide variety of purposes, and much more. The OMB memo claims that Social Security and Medicare benefits are exempted by the order, as well as grants delivered specifically to individuals, like Pell grants or veterans’ benefits. It’s unclear how much money is at stake, but it could range into the hundreds of billions of dollars.
Vaeth halted the spending pending a review to ensure compliance with Trump’s executive orders involving immigration, energy, abortion, and DEI. The review is supposed to wrap by February 10. “What you are ordering is breathtaking, unprecedented, and will have devastating consequences across the country,” wrote the Democratic leaders of the Appropriations Committees, Sen. Patty Murray (D-WA) and Rep. Rosa DeLauro (D-CT).
This action is designed to pick a fight over spending, and relies on fanciful theories that would render Congress a vestigial organ in the governmental order.
But to leave it at that would dignify the alleged logic behind the request. It does not matter what executive action Trump takes; he cannot limit, halt, or refuse to carry out spending authorized and appropriated by Congress and signed into law.
This action is willful and deliberate. It is designed to pick a fight over spending, and relies on fanciful theories that would render Congress a vestigial organ in the governmental order. It means to nullify the congressional spending power by presidential fiat. And it hopes to spark litigation whereby the judiciary assents to that transfer of power, emasculating itself in the process.
The Prospect documented these attempted dictatorial maneuvers last July. Russell Vought, Trump’s handpicked selection to run OMB when confirmed, has laid out his strategy in detail. He wants to resurrect the practice of withholding congressionally appropriated funds known as impoundment, which violates federal law and Supreme Court precedent.
In Vought’s opinion, the president has inherent authority as head of the executive branch to impound funds that differ from his policy viewpoints. That’s really it; Vought simply asserts that congressional appropriations are a ceiling, so the president doesn’t have to distribute them all out. He and his colleagues reach back to English history for justification, but this elides the actual law of the United States as it stands today.
To state clearly, Congress has the constitutional power of the purse. Presidents can sign or veto a budget; that’s the extent of their role. After that, they must take care that the laws are faithfully executed. Refusing to spend money because of a policy preference is the opposite of faithful execution. The Justice Department’s Office of Legal Counsel in 1988 agreed that there just isn’t any authority for presidents to defy appropriated funding.
The Impoundment Control Act of 1974 (ICA) intended to take care of the tensions that can crop up when a president asserts the power to nullify spending appropriated by Congress. Richard Nixon, himself an enthusiastic impounder, signed it into law. The ICA established a specific process to rescind certain spending: Presidents must deliver a “special message” to Congress proposing rescissions that Congress must then approve. If Congress declines to do so, the money cannot be held up for more than 45 days. There’s a second process called “deferral,” where presidents can propose a delay of funding if they find operational efficiencies or need to provide for contingencies. But even deferral can only last until the end of a fiscal year, and it cannot be due to policy differences.
Donald Trump did not deliver any special message to rescind or defer any portion of appropriated spending, let alone all grants or all foreign aid or all clean energy–related spending. There are ways to temporarily hold up certain spending; a blanket assertion is not that way.
All of Vought’s bluster about what the post–Glorious Revolution British Parliament or Thomas Jefferson did with impoundment neglects the plain text of the governing law. And in Train v. New York, decided 50 years ago, the Supreme Court upheld this mechanism, ruling that presidents cannot pick and choose what does and does not get funded once a bill is signed into law. The Court even asserted this would be true without the ICA. Two decades later, in Clinton v. New York, the Court ruled that a president cannot get around the new impoundment process by using a line-item veto to eliminate disfavored parts of legislation.
The ICA did not stop Vought and Trump from trying to impound and withhold funds during his first term. For withholding approved funds for Ukraine for 55 days to try to blackmail them into investigating Joe Biden, Trump was impeached. They clearly violated the ICA, according to the Government Accountability Office.
Vought and his gang think that, now that the Court has grown more conservative even than in Trump’s first term, they can put this before the justices and get them to rule the ICA unconstitutional based on theories of inherent unitary executive power. They may even be right about that. But their vision of what the Constitution allows would effectively eliminate Congress as a budget-setting institution. Why would Congress believe in the durability of any budget agreement they make with the White House, if the president could just nullify spending after the fact?
Make no mistake: The Trump administration wants to be sued over this. They think the Supreme Court will uphold unilateral impoundment and consign Congress to merely ministerial functions. They have all their arguments ready. Some constitutional scholars are confident that even this Court won’t take Vought up on his radical aims. But at some level, you have to ask yourself: Why is the White House so confident to push impoundment in so many ways in their first week on the job? Who have they talked to on the Court? Is this hubris or foreknowledge? Or are they just pushing boundaries to see where they’ll break?
