President Donald Trump pumps his first as the crowd chants “fight, fight, fight!” during the inauguration parade for President Donald Trump at Capital One Arena in Washington D.C., on Monday, Jan. 20, 2025.
On day seven of Donald Trump’s new presidency, his administration issued an order of possibly unrivaled lawlessness via a two-page memo directing a broad pause in billions of spending authorized by Congress. The order conflicts with the most basic premise of American government, that each branch has its own role: Congress controls the purse, and the president must faithfully execute the laws. But the new administration seeks a despotic revamp to this 236-year tradition: Congress suggests spending, and then the president does whatever he wants.
Unless halted by the courts, the impact of the memo will be cruel and immediate, harming the poorest Americans who rely on federal assistance, states and cities who will lose billions in grants, and nonprofits and businesses will have to layoff staff or shutter when their main funding streams instantly run dry.
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“It’s wildly illegal,” says Josh Chafetz, a constitutional law expert at Georgetown Law. “If Congress passes a law saying you must spend X dollars on Y project, then that’s not discretionary. The President has to do that.”
This isn’t the first time a president has asserted broad powers over spending, but it is the most blatant. President Richard Nixon, known for his own expansive views of executive authority, did not always follow the basic constitutional framework around appropriations. This led Congress to reassert itself through the Impoundment Control Act of 1974. The ICA specified only limited circumstancesunder which the president could delay spending funds appropriated by Congress, and forbid doing so because of policy disagreements. Monday’s OMB memo, however, is explicitly based on policy differences. It doesn’t even pretend to follow the law.
The memo doesn’t just violate the ICA, but also the basic separation-of-power assumptions in the Constitution. “It’s not just unconstitutional, it’s anti-constitutional,” says Chafetz. “It’s striking at the very foundation of how our governing system works.”
When presidents push the bounds of their authority, Chaffetz notes, a common refrain is that Congress can rein them in with their budgetary powers by either cutting off money for what the president wants or mandating spending for what the president does not. “But if you start wholesale just knocking out the basic building blocks of the power of the purse,” Chaffetz warns, “Congress’s ability to push back against the presidency is cut down to almost nothing.”
On Tuesday, as the first of many expected lawsuits attempting to halt the order arrived, the administration appeared to be attempting to limit the memo’s impact with a follow-up clarifying that some critical programs, such as food stamps and Medicaid, should not be halted. (There is evidence Medicaid has already been affected.)The Office of Management and Budget also asserted that it was not invoking the ICA but instead is simply issuing a “temporary pause.” Chafetz says that that an impoundment by another name is still an impoundment: “The language of it just being a pause doesn’t get them out of any of their problems.”
In the opening days of Trump’s second term, Congressional Democrats have decided to focus their energy not on resistance to Trump but instead on the pocketbook issues that they feel cost them the 2024 election. House Minority Leader Hakeem Jeffries (D-N.Y.) urged his caucus not to respond to every Trump outrage. But Monday’s OMB memo, striking at the heart of congressional authority and impacting millions of constituents, sounded alarm bells too worrisome to ignore. In the wake of the order, Jeffries called an emergency caucus meeting for Wednesday to discuss an appropriations strategy, a litigation strategy, and a communications strategy, according to a memo sent to the press.
But it is the courts that will play a decisive role in confronting the situation and likely putting a prompt halt to it. Democracy Forward, a public interest legal group, filed a lawsuit in federal court in DC on Tuesday on behalf of nonprofit and small business groups, with a crash hearing slated for moments before the memo was set to take effect. Several Democratic-led states are expected to file a challenge immanently. Steve Vladeck, a Georgetown Law professor, predicts the issue could reach the Supreme Court in a matter of weeks.
Once there, Chafetz posits, the justices will likely halt the order. While the Roberts Supreme Court is extremely friendly to executive power—so friendly that last July, it bestowed the president with immunity for virtually all criminal acts committed in office—this memo’s assault on Congress may be a bridge too far. Just last year, in a 7-2 majority authored by Justice Clarence Thomas, the court emphasized the breadth of Congress’ spending authority. Moreover, Chief Justice John Roberts and a few other politically minded GOP appointees will be looking for opportunities to rule against Trump so as to rebut a growing chorus of criticisms of their radical, partisan leanings.
But when it comes to the OMB memo, there may be an instructive historical preview in how the Supreme Court handled Trump’s attempt to ban nationals from several Muslim countries during his first term. Eight years ago, Trump issued his notorious travel ban, which looked a lot like the Muslim ban he had promised on the campaign trail. Federal judges immediately halted it. By the time it got to the Supreme Court, the executive order had been reworked three times, with changing justifications. The Supreme Court let the ban take effect despite Trump’s earlier anti-Muslim statements.
This spending order, written in blatant violation of the law, may fall as fast as the administration’s first travel ban. And if the administration argues the ICA is unconstitutional, as Vladeck predicts, and fails in court, subsequent versions of the memo could still advance Trump’s agenda by more subtly expanding the presidents’ impoundment authority and eroding Congress’s power.
Even if the memo only takes effect for a short period of time before ultimately being struck down or rescinded, the harm would be significant. It could destroy nonprofits and non-governmental organizations who depend on federal grants, causing thousands of job losses. “The Trump Administration is illegally and unconstitutionally blocking funding for schools, pregnant women, small businesses, local law enforcement, community health centers and more,” Michael Linden, a former Office of Management and Budget official posted on Bluesky.
“To the extent that their animating principle is ‘Do whatever hurts the people we don’t like,’” says Chafetz, “they can cause a lot of pain within a fairly short period by cutting off all funding.”
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