It was so bad, that on Tuesday, the administration released a second piece of guidance attempting to clarify the initial memo’s scope. At the end of the work day, a federal court issued a “brief administrative stay” while litigation on its overall legality plays out.
It appears quite plausible that courts strike down the order permanently. Existing law, including both Supreme Court rulings and federal legislation, have found that the president cannot “impound” (meaning unilaterally stop) funds that Congress has authorized to be spent. Expert legal opinion on how this applies to the memo is divided: Some believe Trump’s order is obviously unlawful in its entirety, while others think it’s possible he could get away with a truly limited pause of some spending.
But regardless of how the legal wrangling works it out, the ideology behind this order is clear: a deep sense on the modern right that winning elections grants them a democratic mandate to ignore any constraints on their power.
Article I of the Constitution gives exclusive powers of the purse to Congress in order to ensure that it can actually make laws and force the president to follow them. Impoundment basically neuters Congress’s lawmaking powers, as it would allow the president could simply refuse to spend whatever money they allocate for it.
Matt Glassman, a political scientist at Georgetown University who studies Congress, posted on X that “accepting inherent presidential authority to impound is akin to shifting the balance of power between legislature and executive to something that resembles 16th century England.”
Yet that’s exactly what Trump wants. In a June 2023 campaign video video, he asserted (falsely) that the president had “undisputed” impoundment power prior to the Impoundment Control Act of 1974 — which he vowed to overturn. “When I return to the White House,” he said, “I will do everything I can to challenge the Impoundment Control Act in court.” This reflects both his view and that of his pick for OMB director, Russ Vought, who also wrote a slew of secret memos and guidances for the Trump administration as part of his work for Project 2025.
While some of the memo’s specific provisions could be read narrowly, it seems to be an attempt to assert impoundment powers. It claims, for example, that “career and political appointees in the executive branch have a duty to align Federal spending and action with the will of the American people as expressed through federal priorities.” This, in plain English, is an assertion that the president has the power to order executive branch staff to reassign federal funding as he pleases.
The memo thus asserts a degree of presidential authority so sweeping that it would wreck one of the core principles of separation of powers. If the Supreme Court lets Trump get away with impoundments — and it’s a fairly large “if” — the presidency would become something worryingly similar to an elected dictatorship.
Can authoritarian moves be “democratic”?
The counterargument to this critique is straightforward: Trump is doing what he promised. Voters elected him after he promised to claim impoundment powers, and he has a popular mandate to deliver.
“Amidst the liberal outrage, it’s important to remember that this was all spelled out by Trump long in advance,” Politico’s Jack Blanchard wrote in Tuesday’s edition of the influential Playbook newsletter. “Those accusing Trump of being anti-democratic might note that this is largely democracy in action.”
There are vanishingly few voters who cast their ballot based on a principled support for impoundment powers. And even if there were, democracy does not just mean that elected officials can do whatever they want.
Democracy depends on the rule of law — government officials’ deference to written and duly authorized constitutional and statutory principles. Winning an election doesn’t give you a mandate to rule unfettered, but rather to act as a representative of the people within a broader constitutional order in which written law reigns supreme. That’s the point of a constitution — to set the rules of the democratic game under which parties compete to change policy.
That means that, absent truly exceptional circumstances like a civil war, illegal actions should not be considered democratically authorized. Nor should actions that concentrate so much power in the president’s hands that it threatens the health of the democratic order going forward.
Yet this vision of democracy where majority power trumps all is increasingly popular on the right.
Prior to Trump’s November victory, I wrote a piece analyzing six thinkers whose ideas would shape a second Trump term. One of them, Christopher Caldwell, is an advocate for untrammeled majoritarianism.
Writing favorably about foreign right-wing leaders with authoritarian inclinations, like Hungary’s Viktor Orbán or India’s Narendra Modi, Caldwell repeatedly argued that these leaders were the true voice of their respective peoples — and that their attacks on legal protections for ethno-religious minorities, in particular, were actually expressions of the popular will.
“We … like to pretend that protecting minorities always means protecting them against abuse and persecution by majorities. Sometimes it does. But just as often it means claiming prerogatives for minorities against the innocent preferences of democratic majorities,” he writes in his essay on Modi.
While Caldwell’s writing has a particular focus on vindicating ethnic majorities — he recently praised Trump’s moves against DEI and affirmative action as “the most significant policy change of the century” — the basic logical structure underpins power grabs the world over.
When Israeli Prime Minister Benjamin Netanyahu tried to impose political controls on the judiciary in 2023, his argument was that Israeli courts were unfairly restricting the powers of elected majorities — and that, because his coalition had won the 2022 election, they were justified in eliminating the only remaining real check on their authority.
It’s worth noting Trump and his allies don’t apply similar logic to Democratic executive actions. When Biden used executive authority to forgive student loans, a questionable but far less egregious assertion of power than Tuesday’s executive order, he and many on the right called it illegal even though it was an explicit Biden campaign promise.
This is because much of the sense of democratic legitimacy, as Caldwell’s work suggests, flows from a sense of speaking for the “true” or “authentic” people — “real America,” as Sarah Palin famously put it. Democratic victories are fraudulent, powered by cheating and undocumented immigrants brought in to “replace” American voters. Trump’s victory is proof that he has a mandate from the heartland to remake the federal government in his image.
Indeed, the impoundment order is explicit on this point, arguing that Trump has a democratic mandate to remake the government along the cultural lines preferred by so-called real Americans.
“The American people elected Donald J. Trump to be President of the United States and gave him a mandate to increase the impact of every federal taxpayer dollar” it argues, adding that “the use of Federal resources to advance Marxist equity, transgenderism, and green new deal social engineering policies is a waste of taxpayer dollars that does not improve the day-to-day lives of those we serve.”
This controversy, in short, is not merely about one unlawful order. It is about a broader theory of democratic legitimacy — one in which a Republican president, once elected, has free rein to ignore the rules that would have bound his power in the past.
This story was adapted from the On the Right newsletter. New editions drop every Wednesday. Sign up here.
