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Trump Sparks Constitutional Crisis, Seizing Budget Authority from Congress

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January 28, 2025 12:51 p.m.
WASHINGTON, DC - OCTOBER 01: U.S. President Donald Trump calls journalists 'loco,' which is Spanish for crazy, during a press conference to discuss a revised U.S. trade agreement with Mexico and Canada in the Rose Ga... WASHINGTON, DC - OCTOBER 01: U.S. President Donald Trump calls journalists 'loco,' which is Spanish for crazy, during a press conference to discuss a revised U.S. trade agreement with Mexico and Canada in the Rose Garden of the White House on October 1, 2018 in Washington, DC. U.S. and Canadian officials announced late Sunday night that a new deal, named the 'U.S.-Mexico-Canada Agreement,' or USMCA, had been reached to replace the 24-year-old North American Free Trade Agreement. (Photo by Chip Somodevilla/Getty Images) MORE LESS

So I write the following with the caveat that everything in the unfolding Trump administration is cloaked in secrecy and uncertain from one moment to the next. But overnight President Trump kicked off, what can only be called both a wide-ranging constitutional crisis, and also very likely a fiscal crisis. He has unilaterally halted – as of yesterday evening, according to an executive memorandum first reported by independent journalist Marisa Kabas – all “grant, loan and federal assistance programs” for at least 90 days. This appears to include everything the federal government does beyond the salaries of federal employees, direct checks to Social Security and Medicare beneficiaries and the US military. Mainstream media journalists are calling this “temporary” or a “pause.” But that’s like saying you’re “temporarily” shutting down Congress or “pausing” elections. “Temporary” isn’t a meaningful term in this case. It’s hard to think through everything affected. Already the halt to USAID budgets has cut off funding for the prison guards holding 9,500 ISIS prisoners in northeastern Syria, according to Syria expert Charles Lister. Cancer research, major parts of every state’s budget, the grants that keep the local daycare center running. This hits basically everything.

The best way to understand this is that it is essentially a unilateral government shutdown on steroids. Even government shutdowns distinguish between essential and inessential government activities. This doesn’t — though it doesn’t appear to effect the salaries of government workers. If this goes into effect it will show up more or less immediately everywhere across the country, as I noted above. It is also blatantly unconstitutional and violates the Impoundment Control Act of 1974, a law intended to prevent much more targeted versions of this which had been attempted by President Nixon. In practice, it amounts to the executive illegally seizing spending authority from Congress.

This action will trigger a host of lawsuits and rapidly make its way to the Supreme Court.

I really don’t know just how this will shake out or what the Democrats should do. But I’ll give you the bare outlines, as far as I can make them out.

First, this is fundamentally a battle over public opinion. This is, yes, patently unconstitutional. Presidents have discretion over spending decisions at the margins. But the sheer breadth of the order makes this clear cut. It also violates the Impoundment Act of 1974, as I noted above. But, as we know, laws and constitutions aren’t self-enforcing.

This is so clear cut I’m not even sure this Supreme Court will go along with it. But obviously that’s nothing to rely on. And once you start breaking the law and operating dramatically outside the Constitution it tends to get easier. So again, this is in the last analysis a battle over public opinion.

Will the public accept it? This isn’t a conversation about norms or aid to a country you’ve never heard of. It will show up all over the place, pretty much immediately. Federal funding for cancer research? Full stop. Various federal grants that fund parts of state and local government basically everywhere. Again, as I said, this is basically a government shut down on steroids.

The big thing to understand in terms of the Democratic opposition is that they’re out of power. This really comes down to the Courts and congressional leadership, which is all Republican. This gets to a broader reality. Whatever battles Democrats do wage with the Trump administration has to be asymmetric. Pretending that anything else is possible is crazy and invites failure and demoralization. That is certainly part of the design here: do all sorts of things all at once that no one can easily stop and let it become a precedent. The best response? This goes back to dominance politics. Find what you can actually do that’s not begging or meaningless and then do it. The clearest lever out there is that the White House needs a debt limit increase sometime this spring, probably pretty soon. There’s been chatter that Republican leaders are going to try to put together a spending deal with Democratic help that would include a debt limit increase or suspension. That has to be taken off the table. No debt limit increase unless the President renounces illegal and constitutional actions. That’s the clearest place where opposition Democrats can take the initiative and force the President and GOP leadership to come to them. Anything that doesn’t force that is basically meaningless.

You’ve probably heard me say before that no one should ever play chicken with the full faith and credit of the United States. Well, these are extraordinary circumstances. But really you don’t even need to make that argument. The Republicans are in the majority. They can do this themselves if they want. The Democrats aren’t in the majority and aren’t holding anything hostage. The Republicans are the majority. It’s the majority’s job, literally, to do this stuff.

But they can’t because they can’t get their own caucus in order. So they’re coming to the Democrats for help. It’s a perfectly reasonable condition. That’s not the only thing they should demand. There are a bunch of additional things Democrats can do that are deeper in the budget process weeds. But it’s the minimum. No cooperation without an agreement to operate only within the law and the Constitution. Yelling and begging not only won’t help, it signals powerlessness, which demoralizes supporters and all opposition. There are a slew of angry partisans out there demanding that Democrats “do something” when the die was mostly cast in the November elections. The Democrats are out of power. There’s very little they can do except be the opposition and oppose. But there are these few things, things that aren’t symbolic, but rather force the President to come to them. If they don’t do those things they send the signal that there is essentially no functional opposition. There’s power on the table and this is the first and central piece of it as of this moment.

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