CNN
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President Donald Trump’s dramatic pause of federal grants and loans is queuing up a Supreme Court showdown over the Constitution that will test the court’s recently muscular commitment to curb executive power.
Although the 6-3 conservative court has often sided with Trump, most notably granting him sweeping immunity from prosecution in July, the justices have also been engaged in a yearslong project of limiting the president’s ability to exercise powers usually wielded by Congress. Former President Joe Biden was often on the losing end of those fights and now the question is whether the trend will continue under Trump.
An internal White House memo circulated Monday ordered federal agencies to “temporarily pause” federal grants and loans beginning Tuesday evening , freezing potentially trillions of dollars and affecting millions of Americans. A federal judge in Washington on Tuesday temporarily blocked the administration’s plans to freeze funding for “open awards” already granted by the federal government.
“There’s every reason to think that, unless this memo is quickly rescinded, the litigation it is going to provoke will get to the Supreme Court in one big hurry,” said Steve Vladeck, CNN Supreme Court analyst and professor at Georgetown University Law Center.
And while the conservative court has sometimes shown support for broad executive power, he said, “There’s a long, entrenched history rejecting presidential power in this space” in part because “it would effectively deprive the legislature of its single most important constitutional power.”
Just like birthright citizenship, another blockbuster test of conventional legal wisdom that’s now on a fast track for Supreme Court review, the Trump administration appears eager to have that fight in front of the nation’s highest court.
Several nonprofit groups, including the National Council of Nonprofits, also filed suit in federal court in Washington, DC, on Tuesday. The pause in funding, the groups said, “will have a devastating impact on hundreds of thousands of grant recipients who depend on the inflow of grant money (money already obligated and already awarded) to fulfill their missions, pay their employees, pay their rent – and, indeed, improve the day-to-day lives of the many people they work so hard to serve.”
Several states, including New York and California, also sued.
Incoming Trump administration officials believe the nation’s history with executive spending power is on their side. They also believe that the 1974 Impoundment Control Act, which lays out strict rules for how a president can pause spending, is unconstitutional. That law effectively requires presidents to seek congressional approval before freezing funds that lawmakers have approved.
On a Supreme Court that increasingly looks to history to decide modern controversies, it is an argument that is targeted directly at the court’s conservative justices.
“For 200 years, presidents had the ability to spend less than an appropriation, if they could do it for less, and we have seen the extent to which this law has contributed to waste, fraud, and abuse,” Trump’s pick to lead the Office of Management and Budget, Russell Vought, recently told a Senate committee about the time before the 1974 law was enacted.
And Oklahoma Rep. Tom Cole, chairman of the House Appropriations committee, told CNN’s Manu Raju on Tuesday that he doesn’t “have a problem” with the White House decision to pause federal aid. It was a startling reaction because members of congressional spending committees often agree on this much: Their own power to wield the purse.
“I’m not a lawyer, I can’t pontificate on what’s legal but I suspect what’s happening is what most Republicans would be supportive of,” he said. “Appropriations is not a law, it’s the directive of Congress.”
The appropriations clause of the Constitution gives Congress the power to spend federal money from the treasury.
The top-ranking Democrats on the Senate and House appropriations committees fired off a letter to the White House blasting the memo as a “breathtaking, unprecedented” move that “will have devastating consequences across the country.”
Will Trump’s justices agree?
US District Judge Loren L. AliKhan on Tuesday prevented the administration from carrying through with its plans to freeze funding for open awards through Monday evening. AliKhan, who was nominated to the bench by Biden, will consider a longer-term pause on the policy early next week.
Trump named three justices to the Supreme Court during his first term – Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett.
Sometimes the court’s conservatives have aligned with Trump – notably in July, when a 6-3 majority shielded him from prosecution. But it has also twice brushed him aside this month. A narrow majority allowed Trump to be sentenced in his New York hush money case. And the court swatted away Trump’s plea to pause the controversial ban on TikTok, allowing that law to take effect and forcing the administration to announce it would not enforce it.
On a broad level, the Supreme Court has repeatedly limited attempts by the executive branch to act unilaterally or to use regulations and executive orders to fill in spaces left blank by Congress. In the most significant recent example of that, a 6-3 majority overturned a 1984 precedent that required courts to give deference to federal agencies on how to implement ambiguous provisions of law.
