Will the Supreme Court re-write the Constitution to transfer power to Trump again?
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The extremely narrow House majority Republicans will start with — which is particularly vulnerable given how much better the current Democratic coalition is fit for special and off-term elections — will make it difficult for them to pass the huge, sweeping cuts to Medicare, Social Security, and especially Medicaid and other aid to the poor that they favor. The Federalist Society is proposing a way around that: hold the Impoundment Control Act of 1974 unconstitutional, and allow Trump and Elon to impose huge spending cuts at their unilateral whim:
Presidents have a lot of Constitutional powers: the power to wage war; the power to veto laws; the power to pardon criminals; the power to appoint Supreme Court members and other judges. But President-elect Donald Trump and his inner circle are hoping to add a new power to the repertoire, one which would constitute one of the largest expansions of presidential power in modern history: impoundment.
Their theory is that the president has a constitutional authority to withhold, or “impound,” spending from projects after that spending has already been authorized by Congress. Advocates cite examples of past presidents impounding various programs until Congress shut down the practice with 1974’s Impoundment Control Act, which Trump allies view as an unconstitutional law and a congressional power grab.
Trump himself attempted to use impoundment and related powers several times during his first term, most famously to delay paying aid to Ukraine in an attempt to force a prosecution of Joe Biden’s family in that country; this act directly led to Trump’s first impeachment.
Trump’s second term, though, could see a much more extensive use of the power. His nominee to run the Office on Management and Budget, Russ Vought, was on the frontlines fighting for broad impoundment power in the first term, and has sought sweeping cuts to programs like Medicaid and food stamps.
If, as is likely, Congress resists these cuts, Trump and Vought, as well as their flashy spending-cut consultants Elon Musk and Vivek Ramaswamy, could attempt to use impoundment power anyway, sending the fight into courts. There are multiple Supreme Court decisions suggesting such an attempt would be illegal and unconstitutional — but today we have a court where Trump himself appointed a third of the members, and which recently granted him sweeping immunity from prosecution.
If the Court sides with Trump in such a fight, it could set the precedent that presidents can effectively cut spending without Congress, which could have vast, far-reaching implications for everything from health care to defense to science.
The rest of the explainer is very good.
It is about as plain is at can be from both the text and structure of the Constitution and what the framers wrote about it that the appropriations and spending power properly belong with Congress, subject only to an up-or-down veto, a power that is not retroactive. But it’s also overwhelmingly clear that the Constitution did not establish the presidency as an unaccountable monarch, and that Congress has sweeping power to enforce the Civil War amendments, etc. etc. and we know how that’s gone. The crank-to-United States Reports pipeline is less obstructed than ever.