In the days since Donald Trump’s second inauguration, the President has issued 68 executive orders. He’s covered everything from banal cabinet appointments to just who’s allowed to have healthcare, but he’s found a special enemy in EVs and their charging infrastructure — most recently issuing an executive order halting payouts from the Inflation Reduction Act that would have gone to building more EV charging stations.
This is not a power the Executive Branch holds. The Inflation Reduction Act is congressional legislation, and its funds are set regardless of what the Presidency says — it’s the whole “separation of powers” thing you learned about in third grade. The media knows that Trump doesn’t have this power, and Trump’s team knows it too. In fact, they’re likely banking on that. There are bigger plans at work here.
Trump’s plans for EVs follow the same playbook as his pause on federal grants: Using the power of the executive branch to overrule spending already laid out by the legislative branch. This is a move called impoundment, and it’s illegal under the Impoundment Control Act of 1974 — a bill written in response to Nixon’s firm pro-impoundment stance. The bill curbed impoundment as an executive power, but the Trump team wants that power back.
This isn’t a theory, this is stated outright in a video from the Trump campaign back in 2023. The video is about Trump’s intent to use impoundment as a major power in his second term, but the clip isn’t just for the undecided voters out there. There’s another target audience: The Supreme Court. Here’s a quote:
Thomas Jefferson famously used this power, as did many other Presidents, until it was wrongfully curtailed by the Impoundment Control Act of 1974 — not a very good act. This disaster of a law is clearly unconstitutional, a blatant violation of the separation of powers, when I return to the White House I will do everything I can to challenge the Impoundment Control Act in court and if necessary get Congress to overturn it. We will overturn it.
The opening of this excerpt speaks directly to the Court. It’s an appeal to traditionalism, a legal framework that asks whether American citizens have a tradition of certain rights — not something laid out in the Constitution itself, per se, but something we’ve all lived with anyway. The current Court may claim its decisions are all rooted in originalism, another framework, but legal scholars have argued that the Roberts court — particularly justices Alito, Thomas, and Kavanaugh — really has more of a traditionalist bent.
Alito and Thomas have both, in recent years, written majority opinions that ruled Congressional legislation unconstitutional, and one only has to look back to Alito’s majority opinion in Murphy v. National Collegiate Athletic Association — a case that declared federal laws against sports betting unconstitutional — to find traditionalist thinking right at the top:
Americans have never been of one mind about gambling, and attitudes have swung back and forth. By the end of the 19th century, gambling was largely banned throughout the country, but beginning in the 1920s and 1930s, laws prohibiting gambling were gradually loosened.
Alito isn’t looking to the Constitution in this opening passage, he’s looking to the tradition of gambling laws in the United States. Similarly, Trump opens that earlier quote by talking about the tradition of impoundment in the American government. He knows he doesn’t have the power of impoundment — he’s talking about the law that forbids him from using it — but he’s doing it anyway. He’s asking for a legal challenge, for someone to sue him over it, so the case can make its way to the Supreme Court.
Donald Trump is running the Dobbs play — make a decision that’s illegal under current law, then wait for a legal challenge that can be appealed up to the Supreme Court. From there, the court rules that prior law unconstitutional (or in the Dobbs case, ignores stare decisis and overturns its prior ruling on the issue) and the new decision is allowed to go forward. Trump isn’t cutting these funds because he doesn’t know he’s not allowed, he’s cutting them because he thinks he should be allowed — this is just the first step to making it so.
