Shutdown Showdown

A few days before the current government shutdown began, the Supreme Court quietly used its shadow docket to sign off on the Trump administration’s unilateral cuts to billions in foreign aid, which had earlier been ruled illegal by the lower courts. Though cautioning that it should “not be read as a final determination on the merits,” it was hard to read the majority’s decision as anything but a triumph for Donald Trump and his budget director, Russ Vought, who has long vowed to restore the presidential power of impoundment, allowing the White House to arbitrarily delay or withhold funds approved by Congress. The order marked the latest example of the conservative majority on the nation’s top court granting legal legitimacy to one of the most lawless presidencies in U.S. history. 

Naturally, Vought was thrilled, describing it shortly after on X as a “Major victory.”

The order elicited a very different response in Congress, where lawmakers — especially Democrats — were furious at the court for greenlighting the administration’s effort to seize the power of the purse. Though a shutdown was already looming at that point, the court’s order likely cemented Democratic opposition and removed any remaining incentive to compromise. It also made it very difficult for Democrats and Republicans to eventually reach a deal that would end the shutdown, as there is no reason to trust that Vought will honor the deal.

Instead of trying to alleviate these legitimate concerns, the White House used the days leading up to the shutdown to taunt Democrats with memes and threaten that it would use a lapse in funding to enact mass layoffs and gut “Democrat agencies.” The shutdown, according to the president, would provide an “unprecedented opportunity” to remake the federal government. 

In the press, these threats were mostly accepted at face value, with dire warnings that a shutdown could lead to a “dramatic, instantaneous shift in the separation of powers.” Yet there was little veracity to any of these bold assertions. Indeed, there is “nothing about a government shutdown [that] gives the Administration any new powers or allows it to seize the power of the purse,” Georgetown University law professor David Super, who specializes in administrative law, told me in an email exchange. The more salient fact, however, is that the administration has already “impounded hundreds of billions of dollars unlawfully” and initiated sweeping layoffs across the federal bureaucracy over the past year. The administration “clearly did not feel any need for a government shutdown to permit” any of these actions, Super pointed out. 

With or without a shutdown, then, the Trump administration has demonstrated a clear determination to grab as much power as quickly as possible with little concern for legality or constitutional limits. 

In theory, the courts are supposed to check this kind of executive overreach, but as we’ve seen, the Supreme Court has displayed little interest or willingness to do so (unlike the lower courts). Russ Vought has “moved aggressively on the flimsiest legal theories,” said Super, yet the nation’s top court has so far only enabled this type of behavior. “Each time the courts postpone ruling on the merits of those theories likely persuades him that he can accomplish more of his agenda before being stopped.” What’s more, there is no guarantee that the court’s conservative majority, which is largely sympathetic to the unitary executive doctrine espoused by Vought and his Project 2025 colleagues, will rule against the administration on the merits. 

With the Supreme Court seemingly unwilling to curb the president’s drift into authoritarianism, the task of reining in the would-be monarch has thus fallen mostly to opposition members in the legislative branch. Though several Republicans in Congress have offered tepid criticism of the White House’s power grabs in recent months, they have all more or less fallen in line to support their party’s increasingly unfettered leader. Up till this point, Democrats haven’t been much better, even with their own limited options to check the administration’s abuses; the party and its leaders have been widely perceived as weak and ineffective — and for good reason.

The shutdown provides an opportunity, risky as it is, for Democrats to at least bring the fight to an administration that is quickly attempting to transform the United States into a kind of elective monarchy. Whether they will hold the line and extract real concessions for a deal, however, is far from certain. 

If Democrats are serious about confronting an increasingly autocratic administration, they must insist that any funding deal include provisions that make it far more difficult and costly for the White House — and specifically Russ Vought — to renege. To their credit, the Democrats’ budget proposal does include multiple provisions that would clarify laws against impoundment, curtail the White House’s ability to rescind funds, and force Vought to release some of the money that he has already withheld. It also includes a provision that adds an inspector general for Vought’s Office of Management and Budget, though according to Super, this would “not make any difference in the near term because it would be someone appointed by President Trump and hence would have no interest in providing real oversight.” 

In The American Prospect, David Dayen has laid out other ways that Democrats could rein in the president and his officials, offering a blueprint for a “No Kings Budget” that could include anything from requiring all agency appropriations to be “auto-apportioned” (essentially bypassing Vought’s OMB) to statutes that would limit the national emergency powers that Trump has so wantonly abused. Bharat Ramamurti, who served as deputy director of the National Economic Council under President Joe Biden, has put forward additional provisions that would also make it riskier for officials like Vought to break the law. “The law should provide deterrence from trying to engage in these shenanigans in the first place,” writes Ramamurti, who recommends hefty fines, clauses to defund the OMB for unlawful impoundments, and “disbarment from future government service” for any director who knowingly breaks the law. 

For Democrats, any deal without firm restraints on unlawful impoundments and other executive abuses will represent a full surrender and leave the door open to future power grabs. 

It should be abundantly clear by now that every failure to confront Donald Trump emboldens him and his team to act with greater disregard for the law. Each time the president goes unchecked by Congress, the courts or even by officials in his own administration, he grows more brazen in his authoritarianism. 

During his first term, many of Trump’s worst impulses were often checked by administration officials who refused to carry out illegal or brazenly unconstitutional (and often nonsensical) orders. “The people who were most fearful of his reign,” wrote Peter Baker and Susan Glasser in “The Divider,” their book on Trump’s first term, “were those in the room with him, the ones he himself appointed, who behind his back compared him to a czar or a mob boss .…” 

These internal efforts to constrain the president were not always effective, but they served as a crucial first line of defense against the president’s authoritarian instincts. In his second term, those guardrail appointees have been replaced by sycophants and loyalists like Kash Patel, Pam Bondi and Pete Hegseth, who are there to blindly carry out every order. 

Unlike the aforementioned names, Russ Vought is qualified and very well versed in the workings of the federal bureaucracy. He is also a committed ideologue who will do everything in his power over the next few years to dismantle entire swathes of the federal government, centralize power and turn the clock back to the 1920s, when his favorite president, Calvin Coolidge, sat in the White House. This makes it imperative for Democrats to stand up to this administration now — before the window of opportunity closes.