Will SCOTUS Derail DOGE?

There are enormous constitutional issues coming to a head very soon. By granting almost complete discretion to agencies to use impossibly large amounts of money, Congress has punted away much of the authority that was supposed to come with the power of the purse. The elected Executive barely gets its appointees in place in one term, and those appointees have neither the expertise nor internal support to get hold of the existing funding channels.

The bitter irony is that the coming litigation will be based on the pretense that (a) congressional intent formed the bogus spending within these appropriations and (b) the executive controls the administrative state. In reality, a virtually autonomous administrative state subject to neither Congress nor POTUS but only to itself and its cronies will assert an entitlement as if an appropriate constitutional order were actually in place. And SCOTUS will likely rule in favor of the bad guys based on that pretense.

I offer a hypothetical case involving a clearly bogus and silly grantee plaintiff and offer a depressing prediction as to the outcome before the high court.

Abstract: Plaintiff Faux Compassion International (“FCI”) is a 501(c)(3) non-profit with its main office in Bethesda, Maryland. Pursuant to a grant of $20,000,000 (Grant number XYZ-1234567) from USAID, FCI provides pride-colored condoms, multi-language vegan recipe books, and funds for touring intersectional, multi-gender-affirming street puppet theater performances in impoverished nations. On February 14, 2025, this grant and disbursement of funds were terminated by executive order.

Although there is no contract with USAID to provide these specific services, FCI claims a reliance interest because only $120,000 of the grant actually goes to the stated deliverables—the rest of the funds other than FCI overhead and salaries ($5.6 million) is obligated under contract to other consultants, vendors, service providers, and partners including but not limited to Pretend Action, Inc., Make Noise for Earth, and Totally Not Just Another DNC Auxiliary.

The issues presented are:

• Does FCI have standing on constitutional grounds to challenge presidential authority to withhold or impound appropriated funds, or must such an action be brought or joined by Congress?
• Was termination of this grant and the refusal to spend this and other portions of this particular appropriation within the scope of presidential authority?
• Does the Impoundment Control Act 1974 apply or is it an unconstitutional infringement on executive discretion and authority?
• If the Executive must disperse this appropriation, can the beneficiary be changed after an initial grant was issued?

Ruling:

• FCI has standing 6-3.
• The president does not have blanket authority but must have a legally cognizable reason (emergency, fraud, wartime measures, conflict with other law, etc.) 5-4. Two concurring but dissenting on scope or required reasons.
• The 1974 law is overbroad. The only aspect that is valid is already contained in Constitutional checks and balances. Congress has no authority to go beyond that, 6-3.
• Yes, but only for cause, 6-3, two concurring but dissenting on scope of requisite cause.

Bottom line: Unless and until Congress gets in the game to make actual cuts or otherwise authorize POTUS to do so, I fear that lawfare could so greatly narrow and delay DOGE-inspired discretionary authority as to gut the entire enterprise.

I would be delighted if a real constitutional lawyer were to explain why I am completely wrong about this and that there is far more reason for optimism going forward.