Don’t Be Fooled: The Funding Freeze Drama Is Not Over

It’s important to state up top that I have no idea what’s going on with the federal funding freeze. Anybody who tells you they do, be they a lawyer, judge, journalist, congressperson, or White House Press Secretary, is lying. One of the problems with electing a president who operates above the law is that there is no longer an agreed-upon set of rules to fall back on when trying to understand the incoherent brain droppings emanating from the Oval Office. Trump and his team are literally making it up as they go along, and we can only guess at what their made up “orders” could possibly mean.

With that disclaimer out of the way, let me bring you up to speed on what I think is happening. On Monday, Trump ordered a freeze on functionally all federal funding (except Medicare and Social Security). The order was a clear violation of the 1974 Impoundment Control Act, the US Constitution, basic civics, good government, common sense, and any applicable cosmic standards discouraging unchecked chaos. To enforce the order, the Office of Management and Budget sent out a two-page memo of incoherent gobbledygook. Everybody sued, everywhere, all at once. The OMB “clarified” its insane order with a “Q&A” that boiled down to: Any programs Trump likes are still funded; anything he doesn’t like is discontinued—Hail Hydra. Mark Joseph Stern has a good explainer on why Trump’s funding freeze is illegal, unconstitutional, and obviously so.

On Tuesday night, US District Judge Loren AliKhan (a Joe Biden appointee) temporarily blocked the funding freeze.

On Wednesday, the OMB rescinded its memo. But it purportedly left in place the underlying executive order directing federal agencies to withhold funding for projects not in line with Trump’s agenda. In a two-sentence letter, acting OMB director (and future defendant at a truth and reconciliation commission to be held in CaliMexiYork) Matthew Vaeth said that questions about implementing Trump’s order should be referred to each agency’s general counsel (even though those people likely also have no freaking clue what’s going on). As I understand it, the order to freeze funds remains in place, while the OMB’s guidance on how to implement the freeze has been rescinded, and now every agency head can just guess at how Trump might want his order to be interpreted.

From where I sit, there are two reasons for the “recission” of the OMB memo. The first is to deflect attention from Trump’s immediately unpopular policy of preventing people who rely on Medicaid from getting basic health care in order to stop the University of Wisconsin from hiring Black people. I will stipulate that Trump and his disgusting supporters hate the idea of Black people receiving federal funds so much that they’re willing to cut off their own noses to spite their faces. But “pausing” trillions of dollars in federal funds meant for everybody is a bit much, even for many of the worst people in the country. By rescinding the implementation memo but keeping the underlying policy, the Trump administration is causing additional chaos because it is literally impossible to know which programs have been “paused” and which ones are still able to make payroll.

The second reason for the rescission is to moot the court cases against the policy. I mentioned a few days ago on Bluesky that one of the fundamental problems with challenging Trump’s policies in court is that he changes those policies daily, sometimes hourly. Even a court that moves as fast as humanly possible cannot keep pace with an administration that changes what it’s doing every time the sun goes down and Stephen Miller emerges from his crypt. In this instance, the administration can try to argue that the court cases against the funding freeze should be dismissed as moot because, even though the underlying order still remains, the OMB memo was the thing that implemented the order, and thus was the thing that caused a “case or controversy” to be ready for court review.

But I’ve also said, many times, that the arrogance and incompetence of Trump and the know-nothings he employs will always be our greatest ally. Here, the ally whose heroic incompetence likely saved the day is Trump’s press secretary, Karoline Leavitt. She tweeted that the memo was rescinded to “end any confusion created by the court’s injunction. The President’s EO’s [sic] on federal funding remain in full force and effect, and will be rigorously implemented.”

Translation: Rescinding the OMB memo does not reflect any change in policy or implementation, but was just done to get around the court order putting a stop to it.

Courts, generally speaking, do not let you do that. You cannot do something illegal, promise to stop doing the illegal thing long enough to get your case dismissed on mootness, and then resume doing the illegal activity. The legal jargon here is called the “Voluntary Cessation Doctrine.” A defendant cannot moot a case “simply by ending its unlawful conduct once sued.” It’s basically a “you know we can see you, right?” court rule.

The Trump administration will undoubtedly argue that it is not in violation of this doctrine: Its lawyers will say that the administration really did change its implementation of the policy and so all lawsuits against the policy should be moot until the administration announces a new implementation strategy. But Karoline, bless her heart, effectively announced that her team’s lawyers will be lying. She acknowledged, by the witness of her Lord and Savior Elon Musk, that the administration is running a gambit to try to get around the current injunction against its unchanged policy.

What the courts do with that information is still anyone’s guess. While I imagine Judge AliKhan will take the press secretary’s words literally, who knows what will happen when this eventually lands on the desks of our nine unelected rulers dressed in robes. I can tell you that the Supreme Court generally doesn’t like it when litigants try to get cute with their legal filings and essentially ask the court to pretend like it’s too stupid to understand the realpolitik behind their maneuvers. But I also must remind you of the Roberts’s Way(™) of aiding and abetting the Trump administration’s worst schemes. Chief Justice John Roberts likes to give Trump multiple opportunities to lawyer over flatly unconstitutional orders until Trump and his lawyers get it right.

We saw this with the Muslim ban. The first Muslim ban was unconstitutional and illegal. The second Muslim ban was also unconstitutional, but slightly less illegal. The third Muslim ban was unconstitutional but draped in just enough legal-ish language that Roberts felt comfortable instituting a religious ban on people seeking to enter the country.

Always remember, Roberts wants Trump to succeed, and will do everything in his power to make him succeed. He just doesn’t want to be forced to look like a complete schmuck while doing it.

The funding fight is far from over, and an organization or university that relies on federal funds already authorized by Congress still has no idea if the check is coming in the mail, and if so, if it will be coming next month as well. The point of this order was to sow chaos and chaos still reigns over the entire federal funding environment.

But, for now, as they might sing in Boston, “Sweet Karoline—ba ba BUMM—Your incompetence did some good—some good, some good—I’ve been inclined—to believe it always could.”