It was the day that Donald Trump’s new strongman presidency crashed into reality.
His latest attempt to wield vast and questionable executive power – this time by temporarily halting federal aid – sparked nationwide confusion and fear with programs including Meals on Wheels and low-income housing assistance suddenly in limbo.
The methodical approach that characterized the intense opening week of Trump’s presidency yielded to chaos – reminiscent of the uproar that characterized his first term and helped him lose the 2020 election.
But most profoundly, the drama set off a momentous legal battle over the scope of presidential authority, which will shape the new administration and the separation of powers and is almost certain to land in the Supreme Court.
Trump’s brand as a bombastic disrupter reflects the disdain many Americans have for the Washington establishment. And he can fairly argue he has a mandate for change after an impressive election victory. Democratic claims that he’s bent on becoming a dictator have often been alarmist.
But the spending freeze – along with other key moves early in this presidency, including the firing of Justice Department prosecutors and a bid to repeal birthright citizenship – also reflects Trump’s view that the presidency has almost unlimited power and he can simply decide what is legal and what isn’t.
“The White House Counsel’s Office believes that this is within the President’s power to do it, and therefore, he’s doing it,” White House press secretary Karoline Leavitt told CNN’s Kaitlan Collins in the briefing room on Tuesday.
So, it only took a week and a day for Trump’s second presidency – rooted in his desire for total control – to present a grave challenge to the Constitution.
How a memo sparked nationwide chaos
This was a mess made in the White House.
The Office of Management and Budget set off a storm Monday night with a memo ordering a temporary pause in “all activities related to obligation or disbursement of all Federal financial assistance.” The memo, obtained by CNN, made Medicare benefits or assistance to individuals exempt. But uproar ensued, leaving lawmakers, state governments, local leaders and NGOs scrambling and unsure which programs were included and which were safe. In theory, programs ranging from those at the Pentagon to small town America were under threat.
Attempts by Trump’s team to explain that the freeze was not as broad as it seemed, and that it was intended to allow officials to scrub funding for conflicts with his new policies – including on outlawing diversity, equity and inclusion – only made the situation worse. Leavitt couldn’t specify, for instance, in her debut briefing whether Medicaid was blocked. She later clarified that it was not, but the critical program’s portal was down in many states for much of the day.
“I suspect that the admin here has bitten off more here than intended to chew,” said Donald Kettl, former dean of the University of Maryland School of Public Policy. “I don’t think it really intended to shut down Medicaid. I don’t think it intended to shut down aid to local schools. But the meaning of the language that came through … is absolutely crystal clear,” Kettl said on “The Lead with Jake Tapper.”
By evening, a federal judge imposed a short-term halt on the aid freeze until Monday.
US District Judge Loren L. AliKhan summed up a surreal and baffling day after pressing a Justice Department attorney, saying: “The government doesn’t know the full scope of the programs that are going to be subject to the pause.”
Trump’s ‘shock and awe’ dissolves into confusion
There will be significant short-term political reverberations from Tuesday’s drama, which overlaid far more serious constitutional implications.
The confusion immediately overshadowed the disciplined rollout of Trump’s second term. The shock-and-awe approach of waves of presidential directives and orders has made it almost impossible for Trump’s critics to focus on individual items designed to quickly transform the nation. But the haste seemed to catch the OMB unprepared for disastrous consequences.
The president’s core support after an election in which he won all seven swing states is unlikely to be shaken. But Trump has only limited time to effect the massive change he seeks, and he lacks unlimited political capital, so perceptions of his presidency after a largely error free start remain very important.
Ironically, the pandemonium focused attention on the critical societal role of many government programs that were thrown into uncertainty at a time when Trump plans to cut a scythe through federal spending. Tuesday might, therefore, have posed a political warming for Elon Musk, who is heading the new Department of Government Efficiency and plans to slash federal budgets.
Trump seems to subvert the constitutional role of Congress
But the deepest questions raised by the now partially stayed funding freeze arise from Trump’s latest attempt to wield unrestrained authority in a new presidency already characterized by dubious power grabs.
In seeking to freeze loans and grants and align them with his priorities laid out in a blizzard of executive actions, Trump was seeking to redirect or halt funding already appropriated by Congress.
“It is a direct challenge against Congress and its ability to be able to approve and authorize its expenditure of money,” Kettl said.
Stephen Miller, White House deputy chief of staff for policy, told CNN’s Jake Tapper that the freeze was needed because bureaucrats were pushing out funds for “wicked and pernicious” policies.
And Leavitt insisted that Trump was within his rights to analyze federal spending because it was “exactly what the American people elected President Trump to do.”
One interpretation of Trump’s victory last year is that a plurality of Americans had lost confidence in the government and were angry at the volume and content of the Biden administration’s spending.
But winning an election doesn’t give a president a right to simply ignore the law – indeed Trump swore an oath to uphold it just nine days ago. And the government spending in question was contained in laws passed by Congress – which, under the Constitution, controls the power of the purse. Trump has the chance to write and propose new laws but can’t simply ignore those on the books.
A similar disregard for the law was evident in the president’s summary dismissal of prosecutors who investigated him under former special counsel Jack Smith. The career prosecutors are not political appointees and therefore enjoy civil service protections that govern the terms of their employment. Trump and his allies have long argued that large corps of liberal bureaucrats frustrate the goals of Republican presidents. And the dozen or so officials thrown out of the DOJ were told that they could not be trusted to carry out Trump’s agenda – even though prosecutors are meant to follow the law not political agendas.
The White House insists that the president’s Article Two constitutional powers mean he’s within his right to fire anyone. This is an argument headed for the courts too.
Trump’s effort to repeal birth right citizenship as part of his immigration crackdown also appears to fly in the face of the Constitution – which the president lacks the powers to amend.
Trump’s firing of more than a dozen watchdog officials from inside government agencies late last week seems to follow a similar principle – that a law on the books doesn’t apply to him. The statute requires Trump to give 30 days’ notice to Congress of such terminations, which he declined to do. But Miller told Tapper that the law that has been on the books for generations is unconstitutional. “Absolutely it is. I don’t even think so. I know it is,” he said.
But presidents and their advisers are not kings and don’t get to decide what is constitutional. If they did, the system of US democratic governance would collapse.
“What democracy requires isn’t that as soon as the president comes into power, they could wipe away everything that came before,” said Corey Brettschneider, author of “The Presidents and the People: Five Leaders Who Threatened Democracy and the Citizens who Fought to Defend it.”
“The idea of a democracy is that when laws are passed, take the 1964 Civil Rights Act or environmental protection, that those laws bind not just citizens, but bind even the president,” said Brettschneider, a constitutional law and politics professor at Brown University.
Trump is only just beginning his constitutional pressure
Tuesday further clarified that Trump intends to push presidential power to the limit. And there are growing suspicions that the administration is initiating political battles and legal fights specifically to get the conservative Supreme Court to further expand the scope of the presidency.
The confluence of a president who believes in his own unrestrained power and the recent weakening of restraints on the executive suggest he may get a long way toward his goal.
After all, the principal checks on presidential dominance – Congress and the courts – have actively bolstered it.
Republican support for Trump on Capitol Hill – underscored by lawmakers refusing to convict him – proved in the first Trump term that impeachment is an ineffective tool for holding Oval Office occupants to account. And the US Supreme Court majority that Trump built paved the way last year for more power grabs by the 47th president by granting him substantial immunity for official acts in office.
“The presidency is supposed to be limited by the law and by the Constitution,” Brettschneider said. “And Trump sees it quite differently – that he is empowered to do whatever he wants. And that really is a vision of authoritarian control.”
