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Illegal and, Separately, Unconstitutional
The time is now - - - Tuesday
Rusty Foster
January 28th, 2025
“Everyone I spoke to about the Consumer Electronics Show before I went to it earlier this month kept describing it in terms that involved wetness in some way,” wrote David Roth in Defector, and went on to provide a flawless capsule sketch of this American moment:
It's the abandonment of not just any sense of a common cause but a workable consensus reality; it's the swamping of any collective effort or any nascent social consciousness in favor of individuals assiduously optimizing and competing and refining and selling themselves, not so much alongside the rest of humanity as in constant competition with all of it; it's the rich buffing all human friction from every aspect of their days so that they can more cleanly and passively move through them, a circuit of Teslas circling silently underground forever; it's everyone else, somewhere offscreen, leaving whatever those restless protagonists have ordered on the doorstep and getting tipped 10 percent for it; it's an efflorescence of dead-eyed scams and ever taller fences.
This week in the dead-eyed scam economy our moistly vaporous AI bubble experienced a bit of a micro pop as Chinese company DeepSeek released an app that produces plausible text slop no more limp or spongy than the best Sam Altman has to offer, but open source (kind of) and ninety five percent cheaper (also kind of). But that was way back yesterday, old news now that our whole soggy body politic has taken another vertiginous lurch toward constitutional collapse, as the Doing Crimes Administration continues to live up to its chief campaign promise: Doing Crimes. The time is now - - - Tuesday.
Last week the Trump administration canceled most federal science, with a freeze on all NIH communications, travel, and grant reviews. This seemed bad at the time, and it was, but in hindsight it was also probably one of the least illegal things he’s done so far. Last week he fired 17 inspectors general, which Lawfare’s Jack Goldsmith believes is “probably lawful even though Trump defied a 2022 law that required congressional notice of the terminations… because the notice requirement is probably unconstitutional.” That feels like more legal probablies than the office of the President typically deals in, but ok. Then yesterday Trump also attempted to fire the general counsel of the National Labor Relations Board, which he legally can do, but according to Josh Eidelson in Bloomberg he also attempted to fire “Gwynne Wilcox, who was one of the labor board’s two Democratic members,” which he legally cannot do.
Climbing up the atrocity ladder from personnel crimes to crimes against humanity, the New York Times’ Apoorva Mandavilli reported that last week’s total freeze on foreign aid includes PEPFAR, George W. Bush’s signature Presidential Emergency Plan for AIDS Relief. Mandavilli writes that:
The Trump administration has instructed organizations in other countries to stop disbursing H.I.V. medications purchased with U.S. aid, even if the drugs have already been obtained and are sitting in local clinics.
…One study estimated that if PEPFAR were to end, as many as 600,000 lives would be lost over the next decade in South Africa alone. And that nation relies on PEPFAR for only 20 percent of its H.I.V. budget. Some poorer countries are almost entirely dependent on the program.
“Interrupted treatment may also lead to the emergence of resistant strains [of H.I.V.] that can spread across the world,” notes Mandavilli, packing an unsurpassed quantity of horrors into one brief news item. Of all the malevolent acts of global vandalism I have to write about today, this one will almost certainly kill the most people, and the death toll will be in the millions. Withholding medications already bought, paid for, and on site doesn’t save America a single worthless penny, they’re just doing this to kill sick poor people.
The regime also ordered its new secretary of spousal abuse and alcoholism Pete Hegseth to remove all transgender people from the military in language that is so flagrantly eliminationist that it makes last week’s anti-transgender executive order look relatively soft, and I’m sure the only reason they won’t at least try to kill more transgender Americans than African H.I.V. patients is that there simply aren’t enough transgender Americans to compete. In summary:
But all of that was just a prelude to what independent journalist and my fellow newsletterer Marisa Kabas of The Handbasket first reported yesterday:
A copy of [a] memo from the Office of Management and Budget (OMB) was provided to The Handbasket at approximately 5pm ET by a source whose anonymity is being protected for fear of professional retribution. The memo was sent to the heads of executive departments and agencies with the subject, “Temporary Pause of Agency Grant, Loan, and Other Financial Assistance Programs.” I shared the news on Bluesky at 6:04pm ET, and my reporting was confirmed by the Washington Post a few hours later.
In two deranged and semi-literate pages, the memo orders that:
Federal agencies must temporarily pause all activities related to obligation or disbursement of all Federal financial assistance, and other relevant agency activities that may be implicated by the executive orders, including, but not limited to, financial assistance for foreign aid, nongovernmental organizations, DEI, woke gender ideology, and the green new deal.
So the executive branch of the U.S. federal government will refuse to spend money appropriated by the legislative branch, unless that spending meets executive branch ideological requirements. In case that wasn’t clear enough, the memo also orders that every agency must “…assign responsibility and oversight to a senior political appointee to ensure Federal financial assistance conforms to Administration priorities.”
“Hey,” you might be thinking, “isn’t that illegal?” Indeed it is not only illegal, but also, separately, unconstitutional. The power to spend government money is literally the first enumerated power of Congress in the U.S. constitution. In 1974, Congress also passed the Impoundment Control Act which is a law that specifies the exact manner and process whereby the President can briefly halt duly appropriated spending and ask Congress for permission not to spend the money. Was that process followed here? Who can say.1
But I’m no lawyer, merely a person with working eyeballs and the ability to read, so here’s law professor and Supreme Court newsletterer Steve Vladek on the legal arguments against, and, separately, constitutional arguments against, this flagrantly lawless order.
In essence, the Trump administration is claiming the unilateral power to at least temporarily “impound” tens of billions of dollars of appropriated funds—in direct conflict with Congress’s constitutional power of the purse, and in even more flagrant violation of the Impoundment Control Act of 1974 (ICA).
And what is the loyal opposition doing about all of these wildly illegal (and/or, separately, unconstitutional) moves? So far Senate Democrats are working speedily and aggressively to confirm Trump’s cabinet nominees, including a unanimous 99-0 vote confirming “L’il” Marco Rubio as Secretary of State. Senate minority leader Chuck Schumer (D., Citigroup) took a moment away from posting about A.I. to complain that Mr. Trump sure better knock it off or someone might have to do something. House minority leader Hakeem Jeffries (D., AIPAC) is still talking about eggs, in keeping with with the strategy NBC News’ Sahil Kapur reported yesterday:
Jeffries, D-N.Y., urged members to focus their message on the cost of living, along with border security and community safety.
Cool, cool. Good looking out, Hakeem. Good luck securing the border (???).
How about the political press? In the quasi-bulleted, T.B.I.-friendly house style of Politico Playbook this morning Jack Blanchard wrote that if you think about it while also suffering a major subarachnoid hemorrhage, this is just an expression of the will of the people:
But let’s also be clear: Amidst the liberal outrage, it’s important to remember that this was all spelled out by Trump long in advance. Throughout the election campaign, he told America repeatedly that he would reshape the federal government, root out (and even prosecute) his enemies, pardon supporters who were convicted of violent crimes, slash government spending programs en masse and ax huge numbers of federal jobs. And then he won 77 million votes to do exactly that. Those accusing Trump of being anti-democratic might note that this is largely democracy in action.
Now hold on, there, Jack. It’s true that Project 2025 announced all of these plans well in advance of the election, but I seem to remember being told that Project 2025 was not what Trump planned to do, and in fact his campaign was specifically blacklisting the Project 2025 architects who are now running all the agencies they wrote the demolition plans for. Now where did I read that? Oh, that’s right,
But enough quibbling about who abandoned the American people when and who lied in print to whom. Bygones. Guys. It’s time for some game theory:
Presumably this flagrantly illegal (&, sep., unconst.) executive action will rapidly proceed to the courts, which will either fully abandon the most basic tenet of constitutional separation of powers or find it to be flagrantly illegal (&, s., u.). And at that point, we’ve just about scraped away all of the remaining ice underlying our constitutional republic, and all that’s left between America and the frigid black depths is the question of whether Trump, with his unconstrained pardon power and preëmptive Supreme Court grant of immunity from prosecution, will agree to respect the Court’s decision and back down. If only we had a recent example of a law that Trump didn’t like which was passed by Congress, signed by the President, and upheld by the Supreme Court…
Oh, right. Remember Tiktok? Yeah, I didn’t either. But in Politico Magazine (truly a land of contrasts), Ankush Khardorib remembered the last time Trump ran up against a law he didn’t want to enforce, an eternity ago (i.e. last week):
On Sunday, [Tom] Cotton himself — who recently advised the tech industry to obey the law or face “ruinous liability” — seemed to step back, at least for the time being, from a confrontation with Trump. “Our point in passing that law,” Cotton told Fox News, was never to ban TikTok in the United States. It was to force ByteDance, its parent company that is controlled by the Chinese communists, to divest from TikTok — to have a TikTok that is not influenced by Chinese communists.”
…Democrats, meanwhile, also seem content to let Trump defy the law, perhaps for fear of further political fallout from TikTok obsessives. Senate Minority Leader Chuck Schumer, who voted for the ban, has pledged to work with Trump to keep the social media platform alive.
So it’s anyone’s guess what will happen, I suppose.
I feel pretty helpless and nauseated at the moment, and all of our immediate futures seem quite dark. My wife’s job and my family’s health insurance are both largely funded by federal grants for domestic violence prevention, and we have no idea whether those will continue to exist after yesterday. But while I’ve seen a lot of doom online, and added to it myself above, I haven’t seen many useful suggestions for what regular people can do right now. So for what it’s worth, here’s what I think we should be doing:
First, deny this regime your compliance whenever and wherever you can, in ways as large or as small as you are able. Defend your communities, especially the most vulnerable—trans people, queer people, the chronically ill, immigrants, ethnic and religious minorities. And above all, seek to depose any officeholder, political appointee, bureaucrat, or business leader who cooperates with this criminal administration, as well as any who fail to effectively oppose it, by any means available to you.
I think if we keep those three points in mind, we’ll be at least a little bit better prepared for whatever happens next.
Today’s Song: Sola Guinto, Faffi, “ARMAGEDDON”
If we’re gonna turn to stone, then let’s pull a power pose.
This honestly feels manipulative but I’m obliged to at least suggest that you become a paid subscriber. No worries if not!
1 It was not.
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