Money Talks

We’re long overdue for a Schoolhouse Rock reboot, but with each passing year I’m more convinced it’ll never happen. Why would any broadcaster bother supplying civic education to a country where there’s no demand?

In case some nostalgic middle-aged television producer insists on throwing his money away, though, here’s a freebie idea for an episode: What is the point of Congress in 2025?

I know what the Constitution says it’s supposed to do. But what does it actually do?

“Congress declares war,” you say. Well, no, it doesn’t. It’s been more than 75 years since any such declaration has been made. Congress does occasionally pass “authorizations to use military force” for major conflicts, but most projections of U.S. military power abroad nowadays happen on the say-so of the president. In theory the legislature has authority to halt those interventions, but in practice it doesn’t dare undermine the commander-in-chief while American troops are in harm’s way.

“Congress impeaches and removes corrupt federal officials,” you say. Again, not really. The House remains willing and able to impeach—but only if the president is a member of the other party and only because impeachment requires a simple majority. In the Senate, the two-thirds supermajority needed to convict has made removal impossible in an age of bitter partisanship. If the legislature wouldn’t oust Donald Trump after a failed coup attempt, it’ll never oust anyone. He could murder someone on camera at this point and there wouldn’t be 67 votes against him.

“Congress scrutinizes the president’s nominees and consents to their appointment,” you say. Is that so? We’ll find out more about that this week, I suppose, as the dregs of Trumpworld come before the Senate for their confirmation hearings. But it was just four days ago that the chamber confirmed one of the least qualified Cabinet nominees in American history, a talking head from Fox News with a history of heavy drinking, a zipper problem, and a soft spot for accused war criminals. The bar for confirmation is on the floor. It is remarkable that a few members of Trump’s kakistocracy still might not clear it.

“Congress decides how taxpayer money is spent,” you say. Fair enough, I would have said—until this week. However pitifully diminished Congress might be in other respects, it still retains the power of the purse. And in a country where the federal budget reaches into the trillions, that’s a genuinely awesome power.

But don’t finalize the Schoolhouse Rock script just yet. As with war, impeachment, and advice and consent, spending might soon become another congressional power in name only.

Mr. Freeze.

“If presidents can impound appropriated funds at any time and for any reason, then there’s not much point to having a legislature.” So said law professor Steve Vladeck about Trump’s latest challenge to the constitutional order, which arrived on Monday night in the unassuming form of a two-page memo signed by an acting budget official.

The memo ordered a temporary freeze to all grants and loans issued by the federal government to ensure that resources aren’t being used to advance “Marxist equity, transgenderism, and green new deal social engineering policies,” among other leftist priorities. Social Security, Medicare, and direct payments to individuals were exempt lest the new policy trigger a popular revolt, but foreign aid, scientific funding, assistance to schools and nongovernmental organizations, and much, much more were momentarily paralyzed as agencies review their spending to make sure it complies with Trump’s agenda (Late this afternoon, a federal judge issued a stay halting the freeze until February 3.)

Needless to say, this involves big bucks. Manhattan Institute fellow and Dispatch contributor Brian Riedl told the Washington Post that the amount affected runs into the tens of billions of dollars at least. “The funding delays are going to prove very difficult for grantees under the impression the money is coming, and have rent and salary payments dependent upon it,” he said.

It’s weird that the branch that supposedly wields the power of the purse, and that appropriated all of this money, should suddenly find its power subject to the president’s whims, no?

What Trump is attempting to do is called “impoundment,” holding onto funds—albeit temporarily, in this case—that the legislature has directed him to spend. (And not for the first time!) Per Vladeck, the Impoundment Control Act of 1974 does give him a bit of wiggle room in refusing to disburse appropriated money, but only under certain conditions. To begin with, the White House needs to formally request permission from Congress not to spend certain funds, which Trump hasn’t bothered to do. Once the president makes that request, he can then withhold the funds for 45 days while Congress considers it. At the end of the period, however, unless the request is approved, the funds must be disbursed.

And if the law that appropriated the money “mandates” that the funds be spent, then Congress won’t consider the president’s request to begin with.

Trump’s answer to all of that is (or will be) to insist that the Impoundment Control Act is unconstitutional as an encroachment on presidential power under Article II. The money appropriated by Congress is going to executive agencies, is it not? Well, he’s in charge of those agencies. If he doesn’t want to spend it, the legislature can’t force him. The power of the purse is merely the power to write checks. It’s for the executive to decide whether to cash them.

“That’s silly,” you might be thinking, and you would be right. Article II requires the president to “take Care that the Laws be faithfully executed,” after all. If he can opt not to faithfully execute spending ordered by Congress then our laws are little more than suggestions—to the extent they aren’t already. In vintage Trump form, he’s presenting himself as a victim when he’s actually the aggressor: The constitutional encroachment in impoundment, plainly, is the president’s attempt to assert a de facto veto over Congress’ Article I spending power. That’s what Vladeck meant in the line I quoted above. If the executive, not the legislature, ultimately gets to say where taxpayer money goes, why do we have a legislature at all?

This whole episode is vintage Trump, really. It’s bold to the point of being audacious. It’s messy as hell, with agencies at sea as to how the budget memo should be implemented. “In two pages, we’ve got what amounts to 60 years of tradition and policies that are thrown up in the air. For those suffering most, the uncertainty will be immense,” one public policy expert told the Post. It’s also probably illegal, although no one’s sure since presidents don’t typically try stuff like this and it’s anyone’s guess how far a 6-3 conservative Supreme Court might go to enable autocracy in the name of the “unitary executive.”

One thing this episode isn’t, though, is “chaotic.” Not strategically, anyway.

Discretion.

Nine days into his term, Trump has a lot of plates spinning. Immigration arrests and deportations are up; birthright citizenship is up in the air; Greenland and the Panama Canal are under threat; U.S. foreign aid has been paused, with potentially disastrous consequences; the J6ers are back on the streets and, in some cases, confronting police.

It seems chaotic, little more than haphazard fan service for his populist base, but there’s a common thread to many of the actions he’s taken. The impoundment nonsense is the latest example of Trump striving to make all federal policy subject to executive discretion and all exercises of that discretion subject to compliance with his wishes. We’re a government of “friends and enemies” now, and the more power he wields in his discretion, the more friends he’s going to have.

On Monday, for instance, his acting attorney general fired more than a dozen Justice Department prosecutors who worked on the two federal cases in which Trump was indicted. There was no evidence that those prosecutors engaged in wrongdoing that might justify the firings, merely a suspicion that they wouldn’t have faithfully implemented the president’s agenda. And fair enough, I guess: If I had to work for a convicted criminal whom I believed had committed numerous federal offenses, I wouldn’t be the eager-est beaver in the office either.

Were the firings legal? Maybe, maybe not. But when Trump wants to exercise discretion over personnel, he’s not going to wait for his lawyers to feel good about it.

The vendetta didn’t stop there, either. Other prosecutors at the DOJ are now under investigation for having charged some rank-and-file J6ers with felony obstruction. (The interim U.S. attorney leading the probe helped organize the “Stop the Steal” movement in 2020, in case you’re wondering what stage of decline America is at.) Paired with the president’s sweeping clemency for insurrectionists, the “wholesale politically inspired demolition of the Department of Justice” that’s underway makes clear that Trump’s favor is now the only salient political consideration in the executive branch. Friendly criminals who idolize him will be treated with more mercy than enemy prosecutors who held them, and him, to account under the law.

His decision last week to end federal security details for John Bolton, Mike Pompeo, and Anthony Fauci made the same point more dramatically. Trump may have been entitled to do that at his discretion but there was barely a pretense that he acted for public-minded reasons having to do with scant resources or the threats to each man having diminished. He pulled their security because they’ve criticized him at points in the past, plain and simple. In Trump’s Washington, friends get protection when they’re at risk of being murdered while enemies have to fend for themselves.

Ultimately this is all penny-ante stuff to Trump, though. Unless you’re employed by an executive agency or depend on one directly for your safety, there isn’t much he can do to you (yet) to bend you to his will. As always in life, real leverage lies in money, but money is the one thing the president constitutionally doesn’t have much authority over. If only he could control who gets to wet their beak in the public fisc and who doesn’t, his power to make adversaries at home and abroad comply with his wishes would multiply many times over.

So that’s what he’s gone about doing. To properly run a government based on patronage, with spoils going to friends and hardship relegated to enemies, he needs to gain more control over taxpayer money.

Tariffs are his instrument of influence abroad, of course. It is insane that a 25 percent tax on imports from America’s two closest trading partners could be imposed on the whim of one man rather than by a vote of Congress, but our feckless legislature spent many years gradually ceding authority to the president in this area and lacks the nerve to dare claw it back. And so, for Trump, tariffs have become a form of unilateral sanctions he can impose to apply pressure internationally on weaker powers whenever there’s something he wants.

He threatened Colombia with tariffs when it resisted accepting deportees from the U.S. who were flown home on military planes. He threatened Denmark with tariffs when it refused to turn Greenland over to him. In neither case did trade policy have anything to do with his actions. He likes tariffs because money talks, and American economic might is such that our money is louder than anyone else’s.

Is it any surprise, then, that he would look for ways to gain similar financial influence over adversaries here at home?

Impoundment is the way. If it’s within the president’s discretion to release or not release the enormous gobs of cash Congress sends out the door every year to domestic entities, practically every stakeholder in American society will need to kneel before him to stay afloat. Some people’s “loyalty” is compelled with a stick but others’ is purchased with a carrot. Trump, the man who insisted on putting his name on stimulus checks issued during the pandemic, wants the power to dole out the carrots. You want your appropriation from Congress? Then ask nicely, and explain what you’re prepared to do for him as a “favor” in return.

Who’s going to stop him?

The court stands alone.

Congress? Please. He owns the majority party in both chambers, body and soul. Rep. Tom Emmer, the No. 3 Republican in the House, practically drooled on himself on Monday in celebrating Trump’s spending freeze. “You’re going to see things like this, and your first reaction is going to be, ‘Well, this isn’t the way it’s been done,’” he crowed. “You need to understand, he was elected to shake up the status quo.”

The reason this isn’t the way it’s been done is because it’s illegal, Tom.

Will Democrats stop Trump? Also unlikely. Sen. Chuck Schumer checked the box, releasing a statement condemning the freeze yesterday and then wheezing about Project 2025 in a press appearance about it today. But liberals are outmatched by the sheer pace of the authoritarian advance and of course they’re outnumbered in the House and Senate. If they were in the majority, they’d be within their rights to roadblock Trump’s nominees or cut funding to certain executive agencies to protest this latest power grab. As it is, they’re prisoners of an obeisant GOP.

Frankly, I think they’re reluctant to challenge Trump during his “honeymoon period” with voters. He’s more popular than they are.

Might the people themselves stop Trump? I’m skeptical. The president is “doing exactly what he was elected to do,” Emmer claimed on Monday, and while that’s not quite true—how many American voters had strong feelings about impoundment?—it’s truer than some would like to believe. A recent CNN poll found the public quite clear-eyed about the president’s intentions: 74 percent expected him to ask the DOJ to investigate his political rivals, 77 percent expected him to pardon most J6ers, and 82 percent expected him to fire federal workers who oppose his policies.

They’ll treat impoundment that way too, I suspect. The president’s voters might not have elected him because they want him to seize Congress’ power of the purse but they understood after January 6 that a second Trump term would involve certain, ah, irregularities and pulled the lever anyway. Caudillo behavior is priced into his political stock. Besides, it’s not like he was deceptive about this as a candidate. Trump’s team spoke candidly about his plans for impoundment during the campaign.

There’s only one civic institution that might, and I think will, meaningfully challenge Trump.

Granted, the Supreme Court has displayed some grossly irresponsible attitudes about executive power during the Trump era. It could very well capitulate again. Law professor Jack Goldsmith believes there are five justices in the conservative majority who might be prepared—in theory—to grant the president broad discretion to pick and choose which federal laws he wants to enforce.

But with Trump currently testing the lawfulness of everything from birthright citizenship to delaying the TikTok ban without statutory authority to terminating the Paris agreement on climate change to firing civil servants willy-nilly, the Roberts Court is suddenly staring directly into the authoritarian maw. How willing in practice will the justices be to read presidential power expansively? “The question is whether they will go there in reality,” Goldsmith writes, “when the reality is a president who doesn’t care about legal limits or about the non-legal norms that have kept the modern behemothic executive in check and thus legitimated its power.”

We shouldn’t get our hopes up. The possibility of a cretin like Donald Trump wielding the pardon power with total criminal impunity was a live one when the court considered presidential immunity last year and it still opted to throw civic caution to the wind. Never underestimate a Federalist Society alumnus’ willingness to read Article II autocratically.

But fair is fair: The Roberts Court has also reined in executive power in certain important ways when that power has encroached on the authority of other branches. That’s the great hope of classical liberals when the court eventually takes up Trump’s impoundment gambit. He’s not just stepping on Congress’ toes, he’s stomping on them, and the majority has looked dimly on that in recent years.

I’d say it’s more likely than not that they rule against him—and then we’ll get our first real insight into just how dark this grotesque postliberal experiment might get. Will Trump ignore an adverse ruling by the court, as his vice president has encouraged him to do in the past, or will he acquiesce? And, maybe more ominously, if the majority comes to suspect that he’ll ignore its ruling, will it strain to rule in his favor in order to avoid a confrontation and preserve a simulacrum of institutional legitimacy?

If the court ends up blessing impoundment, it won’t simply leave us wondering what the point is of having a legislature. It’ll leave us wondering what the point is of having a court. Those are the stakes, all of eight days into Trump 2.0.

Either way, we’ll know soon. Whether you love or hate Trump’s “shock and awe” honeymoon from hell, it does have the virtue of speeding up the completely inevitable “major constitutional crisis” phase of this presidency. Let’s get on with it, please, as I’m dying to know how the Schoolhouse Rock reboot episode on presidential power in dystopian post-authoritarian America ends.