The Supreme Court’s Final Test Approaches

This article is part of TPM Cafe, TPM’s home for opinion and news analysis. 

Sooner than we may think, the Supreme Court will have to decide whether it will continue to expand presidential powers beyond anything imagined in the Constitution, or if it will uphold the separation of powers it purportedly reveres. One aspect of Donald Trump’s push to stock the federal workforce with loyalists is already before the Court; more broadly, his massive, attempted funding freeze deliberately set the stage for a Supreme Court showdown that could make him — and by proxy Elon Musk — a de facto dictator over the entirety of the federal government without the checks and balances clearly embedded in our Constitution.

In his first three weeks in office, Trump attempted to unconstitutionally seize the power of the purse away from Congress by ordering a sudden freeze on federal grants, loans, and other congressionally approved funding. This process, called impoundment, violates appropriations law, authorizations law, the Impoundment Control Act of 1974 (ICA) and the Constitution. The nearly $3 trillion in frozen funds powered everything from veterans’ benefits and infrastructure projects to local health care programs, charities serving children and the elderly, and life-saving foreign aid. Even Meals on Wheels was impacted. The freeze struck fear into the hearts of millions of Americans who didn’t know where they would get their next paycheck or meal.

Though the order was rescinded after a district court judge temporarily stayed the action, the chaos it created was the point. A leaked memo reveals that it was, in fact, the Trump administration’s goal to illegally impound funds in order to tee up a question for the Supreme Court to resolve. The administration would challenge the ICA in an effort to have the Court grant the president the power to ignore federal spending laws.

In the meantime, D.C. District Court Judge Loren AliKhan has issued an injunction mandating federal funds continue flowing. As evidence, she cited a White House’s spokesperson’s assertion that the memo recission was a ruse — because the administration had rescinded the memo but not rescinded Trump’s executive order, the spokesperson claimed, the freeze would remain in effect. Some federal grant funding does appear to remain frozen in violation of the court order. Musk’s DOGE personnel, meanwhile, have now infiltrated agencies across the executive branch, including the Departments of Treasury, Commerce and Veterans Affairs, attempting to purge staff and slash spending line items as part of Trump’s push to singlehandedly dismantle government. Effectively, whether through design or chaos, Trump will continue illegally stopping the delivery of statutorily appropriated foreign aid and funding for thousands of projects across the country unless and until the Supreme Court stops him. The question is, will it?

The Court has long recognized there are certain areas of strong presidential authority, such as handling foreign affairs. Last term, the Court’s right-wing majority expanded those executive powers dramatically, granting the president immunity for criminal acts conducted while in office — an immunity found nowhere in the Constitution.

On the other hand, the Supreme Court has long acknowledged that it’s Congress, not the President, who holds the power to direct federal funding. When a president “takes measures incompatible” with the will of Congress — in this case, statutorily sanctioned appropriations — “his power is at its lowest ebb,” Justice Hugo Black wrote in a 1952 majority opinion. Before the ICA was enacted, a unanimous Supreme Court held that the president did not have any discretion in withholding congressionally appropriated and directed funds. In a 1996 decision holding that a president cannot unilaterally cancel an enacted law — which Justice Thomas joined — Justice Antonin Scalia wrote a separate opinion in which he mocked the concept of a constitutional power of impoundment. Even Chief Justice John Roberts stated explicitly in a 1985 memo that the “President has no independent constitutional authority to impound funds.”

We’ll soon see whether any of our current justices still hold to the same opinions about separation of powers and congressional authority now that the opposing argument is being driven by their close friends. If the Court sides with President Trump in this battle, what other hallowed constitutional rights might they cede to his thirst to power? Will they let him violate our First Amendment guarantee of freedom of speech by mandating “patriotic education” in all schools? Will they slash our Fourth Amendment search and seizure protections by permitting immigration officers to raid churches and schools without warrants as part of a mass deportation scheme? Will they erase our Eighth Amendment protections against “cruel and unusual punishment” in order to exile Americans to foreign prisons? Will they allow President Trump to deploy the military to stamp out non-violent protests across the nation?

Relatedly, right now the Trump administration is seeking an emergency appeal to fire the head of the Office of Special Counsel, the office that handles federal whistleblower claims. In short order, the Court will decide whether Congress can implement protections for independent federal agencies.

Whether this Supreme Court lets President Trump impound federal funding to meet his whims may be their final test. Will they uphold our Constitution and condemn this egregious power grab? Or will they crown our first American monarch?