Trump's power grab and the threat to American democracy

The first three weeks of the Trump administration have seen a disregard for the law unlike anything that has ever occurred in American history. It is imperative that what has happened not be seen as in the realm of the normal or the acceptable. And unless there is significant pushback, the administration will only be emboldened to go further in asserting unchecked power that is fundamentally at odds with the United States Constitution.

The unconstitutional acts have taken many forms. There have been many refusals to spend money appropriated by federal statute. Under Article I, section 8 of the Constitution, the spending power is assigned to Congress. To be sure, the president has a role in this process; he can opt to veto spending bills passed by Congress. But once a spending bill has been adopted, whether with the president's signature or over his veto, the president has no authority to refuse to spend the money.

The Supreme Court long has made it clear that separation of powers is violated when one branch of government usurps the powers of another. That is exactly what impoundment does: it gives the president control over federal spending and undermines Congress's constitutional power over the purse.

Impoundment is not new. Thomas Jefferson was the first president to impound federal funds. But Richard Nixon used it more extensively than his predecessors, and his impoundments were challenged in courts. Almost without exception, the courts found his impoundments violated the law, including the United States Supreme Court in Train v. City of New York (1975). In that case, the Court ruled that Nixon lacked the authority to impound federal monetary assistance under the Federal Water Pollution Control Act Amendments of 1972, a program that he had vetoed, only to see Congress override his veto. The Court unanimously held that the law gave President Nixon no power to impound funds appropriated by a federal statute.

The issue of impoundment has rarely resurfaced in the last half century because Congress passed the Impoundment Control Act in 1974, which outlaws such presidential actions. The Act was adopted in reaction to the repeated impoundments by the Nixon administration and was actually signed into law by Nixon.

The law forbids presidential impoundment of funds but allows the President to propose rescissions of money appropriated by federal law. If the President wishes to rescind spending, he must send a special message to Congress identifying the amount of the proposed rescission, the reasons for it, and the budgetary, economic, and programmatic effects of the rescission. After the President sends such a message to Congress, he may withhold funding for up to 45 days. But if Congress does not approve the recission within this time period, any withheld funds must be disbursed. The Act also allows the President to defer federal spending in very narrow circumstances, but again with required notifications to Congress.

President Trump has used impoundment more than ever before seen in American history in clear violation of separation of powers and the Impoundment Control Act. On Monday, Jan. 27, he announced a massive freeze of federal funds, which was rescinded two days later. But he has eliminated the United States Agency for International Development and said he will do so for the Department of Education. These are agencies created and funded by federal statute. It is clearly illegal and unconstitutional for the President to abolish them.

At the same time, President Trump has abrogated the spending power by offering federal employees a buyout if they were to resign by Feb. 7. Congress has not appropriated funds for this and the President has no authority to spend money without a federal statute.

Another area of repeated constitutional violations has been firing individuals. Under federal law, members of multi-member federal agencies serve for fixed terms and can be removed only for just cause. The Supreme Court upheld the constitutionality of this restriction on presidential removal power in Humphrey's Executor v. United States (1935) and reaffirmed it in Seila Law LLC v. Consumer Financial Protection Bureau (2020). President Trump's removal of a commissioner of the National Labor Relations Board, commissioners of the Equal Employment Opportunity Commission, and the chair of the Federal Election Commission are in blatant violation of the law.

President Trump fired 17 Inspector Generals in violation of a federal law that permits removal only after 30 days' notice to Congress. He has repeatedly violated the federal Civil Service Act by firing many federal employees, including the FBI agents and the Justice Department lawyers who investigated and prosecuted the Jan. 6 insurrectionists.

The list of unconstitutional executive orders in the first days of the Trump administration is stunning. President Trump issued an executive order rescinding birthright citizenship in violation of Section 1 of the Fourteenth Amendment and Supreme Court decisions that provide that anyone born in the United States is an American citizen. He issued an executive order that visas would be revoked for those who expressed support for Hamas, in clear violation of the First Amendment. He has threatened to withhold federal funds from state and local law enforcement agencies that do not cooperate with ICE and universities that do not comply with his discriminatory policies against transgender individuals, even though the President has no authority to set the conditions for federal grants; only Congress can do that.

Many of these actions already have been enjoined by federal district courts. It must be hoped that all judges, liberal and conservative, will enforce the law. This is not about partisanship; it is about blatantly illegal and unconstitutional acts.

The expectation must be that President Trump will comply with court orders, as have virtually all presidents throughout American history. But there is reason to worry. On Jan. 17, 2025, the Supreme Court upheld the federal law which banned TikTok as of Jan. 19. President Trump ignored this and with no authority to do so, has said that the law will not go into effect for 75 days.

This follows Vice President J.D. Vance's statements earlier this year that President Trump should defy the Supreme Court if the justices invalidate his actions. On Sunday, Vice President Vance wrote on X that "[j]udges aren't allowed to control the executive's legitimate power," expressing the view that the president does not need to comply with court orders. If President Trump ignores court orders and gets away with it, our constitutional form of government is truly at an end.

If this summary of presidential actions took place over years, it would be troubling. But for it to occur in less than three weeks should be chilling to all. It is imperative that the courts continue to stand up to President Trump and enforce the Constitution and federal laws. It is crucial that Congress act. And the people must rally to stop this. It is not hyperbole to say that the future of American democracy depends on it.