Outside the Beltway

SCOTUS Made Ending the Shutdown Harder

Passing a budget the President can ignore creates a dilemma.

James Joyner · Wednesday, October 1, 2025 · 4 comments

Vox’s Ian Millhiser makes an insightful point (“The Supreme Court’s newest decision could make it impossible to end the shutdown“):

On Friday, the Supreme Court handed down an order that could completely upend the balance of power between Congress and President Donald Trump. The order effectively permits Trump to cancel $4 billion in foreign aid spending that he is required to spend under an act of Congress.

Trump claims the power to “impound” funds, meaning that he will not spend money that has been appropriated by Congress. Until Trump’s second election, legal experts across the political spectrum agreed that impoundment is unconstitutional. Indeed, many doubted whether someone could even make an argument supporting impoundment. As future Chief Justice William Rehnquist wrote in a 1969 Justice Department memo, “it is in our view extremely difficult to formulate a constitutional theory to justify a refusal by the President to comply with a congressional directive to spend.”

The justices, however, appear to have voted entirely on partisan lines in Friday’s decision, in a case called Department of State v. AIDS Vaccine Advocacy Coalition. All three of the Democratic justices dissented, while none of the six Republicans publicly disagreed with the Court’s decision.

Like so many other cases where President Trump has won the right to continue doing things that were previously considered unconstitutional, this was a temporary decision on the so-called Shadow Docket that could conceivably be overturned on the merits at some point in the future.

Millhouser devotes some time to argue why the decision was wrong. But the important point is this:

[E]ven if these justices eventually admit their error and reverse course, their initial decision is likely to cause an extraordinary amount of harm to the nation while it is in effect.

That’s because the AIDS Vaccine decision came right as the federal government was about to shut down. To reopen it, Congress will need to find the votes to enact a new spending law. And the Supreme Court just made that task exceedingly difficult, because Trump can’t be trusted to honor the terms of any deal that reopens the government if he can cancel federal spending that is part of that deal.

[…]

But the Supreme Court’s decision in AIDS Vaccine suggests that, even if congressional Democrats and Republicans reach a deal where Democrats get some of the health care spending that they seek, Trump can simply cancel that spending after the bill ending the shutdown is signed into law. If he could cancel the foreign aid spending Congress authorized, as the Court just indicated he can, why couldn’t he cancel anything else the legislators agree to?

That implication of the justices’ decision means we may be in for a very long shutdown. Negotiating something as important and as complicated as the US federal budget is a difficult task under any circumstances. But it may be impossible when one of the parties cannot trust the other one to keep its side of any bargain.

Indeed, this is why I agree with my co-blogger Steven Taylor that the Democrats have chosen an Ill-Conceived Shutdown Strategy. This should be a fight over the Constitutional prerogatives of Congress to control the budget and the basic legal framework under which the federal government operates. Instead, they have chosen to make it about an obscure, temporary healthcare subsidy enacted during an emergency.