A federal judge this week issued a stay that freezes a freeze that the Trump administration had earlier tried to impose upon federal grants and loans, forcing an embarrassing about-face from Trump’s new regime.
Newly installed White House Press Karoline Leavitt spun the take-back by focusing on other executive memos, such as ones halting foreign aid and terminating DEI programs, while President Trump himself blamed the media for confusion over the memo’s scope.
The rescinding of the order—amid some two dozen state attorneys’ filing their own lawsuits over the stoppage of funding—is a sign of the lack of thought that went into the controversial move. but that the White House issued it at all offers the clearest glimpse yet of the Trump administration’s vision for executive power.
The stop was originally ordered via a two-page memo issued by the White House Office of Management and Budget (OMB), which directed all federal agencies to “pause all activities related to obligation or disbursement of federal financial assistance.” According to the OMB, the order was necessary because “the use of Federal resources to advance Marxist equity, transgenderism, and green new deal social engineering policies is a waste of taxpayer dollars that does not improve the day-to-day lives of those we serve.”
Such cultural wars jargon offers flimsy justification for the massive disruption of everything from school lunches to disaster relief, and a potential violation of both the Constitution’s separation of powers doctrine as well as the 1974 Impoundment Control Act (ICA). The ICA limits a president’s ability to affect money Congress has approved spending to only two paths: recission or deferral. Both require the president to send Congress a “special message” explaining the reasoning for their decision, and its impact. The ICA does not permit the use of deferral, furthermore, for policy reasons.
In issuing the stay, Judge Loren L. AliKhan of the U.S. District Court for the District of Columbia (a Biden appointee) appeared to focus on the chaos arising from conflicts between the administration’s apparent intentions and what was actually occurring. OMB, for example, tried to clarify in a separate memo that Medicaid and food assistance programs were exempt from the “pause,” even as state Medicaid directors reported payment portals were down. “It seems like the federal government currently doesn’t actually know the full extent of the programs that are going to be subject to the pause,” said Judge AliKhan in their ruling.
That “full extent” appears vast. Emergency disaster aid, foster care, school breakfasts and highway construction would all be paused, as well as, according to the head of one of the plaintiff groups: “From pausing research on cures for childhood cancer to halting food assistance, safety from domestic violence, and closing suicide hotlines, the impact of even a short pause in funding could be devastating and cost lives.”
The Trump administration’s disorganization and reliance upon MAGA talking points—whether accidental or deliberate—obscures the seismic struggle over the expansion of Presidential power unleashed by Trump’s second administration.
Trump’s freeze comports with none of the ICA mechanisms and plainly states that the purpose of the pause is solely for policy reasons—to make sure that no “woke” agenda is furthered by federal funds. This alone should ensure that the Trump administration will lose any (and all) lawsuits brought against it over its memo. But the lawsuit also raises First Amendment issues, arguing that the OMB memo violates the Constitution by denying receipt of appropriated funds if the recipient expresses “political, personal, and moral viewpoints disfavored by the administration.”
Still, court losses are unlikely to dampen the Trump administration’s appetite for expanding executive power to a previously unimaginable degree. Until Trump, it was President Nixon who personified executive power run amok. His secret bombing of Cambodia and invasion of that country without Congressional approval led directly to passage of the War Powers Act; he is thought of as the embodiment of the so-called “Imperial Presidency.” But the second Trump administration possesses advantages that Nixon lacked in its play to usurp this title.
Unlike Nixon, Trump has a Supreme Court with not only a Republican majority but a majority who has repeatedly shown itself willing to flout precedent in siding with Trump. Also, unlike Nixon, Trump has a Congress with not only a Republican majority but a majority that seems utterly cowed by its leader and unwilling to exercise the independent authority it holds under the Constitution. This trifecta of power allows Trump to argue the separation of powers is bad simply because it frustrates his wishes.
Such a strategy must be confronted repeatedly and forcefully. If it is not, then future historians may judge that the arc of 21st century American history bent towards authoritarianism, not justice.