This is the second of three. The first piece “Make Like Wallpaper” is here.
In the half century since Congress passed its law against illegal impoundment, the official it named to enforce that law has gone to court exactly one time. One. That was in 1975, and the case went nowhere.
Fifty years, one lawsuit. And now there have been twelve violations since January 2025 alone.
In the early 1970s, Richard Nixon decided he didn’t have to spend money Congress appropriated if he didn’t like what it was for. Congress, in the middle of Watergate, decided otherwise. After its funding fights with Nixon, it passed the Impoundment Control Act in 1974. Two years later came the National Emergencies Act. Two years after that, the Inspector General Act put independent watchdogs inside federal agencies as a check against abuse.
That was the last time (the last time!) this country did what Part One asks for. Congress looked at a president who treated custom as optional, and it wrote the customs into something approximating law.
It mostly forgot the teeth. Each law named a rule. Few named a penalty, and the enforcers they did name have rarely enforced. For fifty years that mattered less than it should have, because presidents of both parties mostly behaved as though the laws had teeth. These last two years, this administration found most things toothless and smiled.
Working through the evidence, I kept running into the same pattern. The rules that held up best weren’t the ones with the toughest enforcer. They were the ones that didn’t need one: a rule that expires on its own, a deadline that makes a violation visible the moment it happens, money that can’t lapse while someone sits on it. A president can fire an enforcer. He can’t fire a calendar.
This idea runs through everything below.
The money
Lets look at emergencies first, because that’s where the most power seems to hide.
The National Emergencies Act lets a president declare an emergency and switch on a long list of standby powers. In theory Congress can end any emergency it doesn’t like. In practice, after a 1983 Supreme Court decision struck down the legislative veto, Congress has to pass a resolution that becomes law, which means the president can veto it and Congress needs two-thirds of both chambers to override. Congress has tested this. When it voted to end the emergency used to divert money to the border wall in the first Trump term, it never got near two-thirds.
So emergencies don’t end. The oldest still in effect was declared by Jimmy Carter in 1979. As of the Brennan Center’s September tally, 52 declared emergencies are in effect.
Part One covered what one of them cost you at the register: tariffs imposed under a 1977 emergency statute, struck down 6-3 by the Supreme Court in February, then replaced within hours under Section 122 of the Trade Act of 1974. Importers are now chasing refunds the government may owe them, estimated at more than $150 billion. You won’t see a dime of it. Promise.
Here’s the detail Part One didn’t have room for. Section 122 tariffs can only run for 150 days. Congress wrote that clock into the law in 1974. The front door Trump walked through has a time limit. The side door never did.
The fix already exists, and it works exactly that way. The ARTICLE ONE Act would make any national emergency expire after 30 days unless Congress votes to approve it, and would require approved emergencies to be renewed every year, old ones included. Republican Chip Roy and Democrat Steve Cohen reintroduced it in August, and in the previous Congress the House Transportation and Infrastructure Committee passed it unanimously. It flips the default. Today an emergency lives forever unless a supermajority kills it. Under ARTICLE ONE, it dies on its own unless a majority keeps it alive. No enforcer required.
Now impoundment, the law written with Nixon in mind.
Since January 2025, the Government Accountability Office, Congress’s own auditor, has found the administration broke the Impoundment Control Act twelve times. The withheld money was supposed to go to things you’d recognize: medical research grants at NIH, Head Start and disaster aid through FEMA. The latest finding came in late September. The administration tried to cancel nearly $1 billion by sitting on it until the fiscal year ran out, a maneuver called a pocket rescission, which GAO had already declared illegal the year before. The budget director’s response to the new finding was that it was “not a surprise.” He has also said repeatedly that he believes the law itself is unconstitutional.
Good grief.
The soft spot is easy to find. The law makes the Comptroller General, who heads GAO, its enforcer, with authority to sue the president. But violations carry no penalties of any kind, administrative or criminal. The enforcer has sued once in fifty years. And GAO doesn’t even have a confirmed head right now. It has been run by an acting Comptroller General since Gene Dodaro’s term ended in December 2025. A rule, an enforcer who almost never enforces and no penalty: that’s the Watergate design in one sentence.
The pocket rescission points straight at the cure. It works only because appropriated money expires at the end of the fiscal year. So write the law so that money withheld illegally doesn’t expire. The trick dies on the spot, and nobody has to sue anyone. Add real penalties for the officials who withhold funds, make a GAO finding trigger a lawsuit automatically instead of leaving it to one official’s nerve and confirm a permanent Comptroller General, because an acting one is easier to lean on and everyone involved knows it.
The referees
Part One covered the inspector general firings, the jobs-numbers firing and the Justice Department’s suit against Alaska. What it left out is the detail of the case I know best.
In September 2020, Brian Murphy, who had led DHS’s Office of Intelligence and Analysis, filed a whistleblower complaint. He alleged the acting secretary told him to hold an intelligence notification on Russian disinformation because it “made the President look bad.” He alleged he was pressed to make the threat from white supremacists look less severe. He said he was demoted for refusing. DHS flatly denied all of it.
I was USCIS’s representative to that office at the time. Analysts didn’t need to know whether the allegation was true. They only needed to believe it could be. People started keeping their heads down, and they haven’t stopped.
The obvious fix for the referees is the one I’d have offered a year ago: make watchdogs, statisticians and prosecutors removable only for cause, and let courts put them back.
That door closed in June. In Trump v. Slaughter, the Supreme Court ruled 6-3 that Congress can’t protect FTC commissioners from being fired at will, overruling a precedent from 1935. Congressional researchers expect the ruling to reach other agencies that wield executive power. Because it rests on the Constitution, no statute can undo it.
The same day, in a separate 5-4 order, the Court refused to let the president fire Federal Reserve governor Lisa Cook while her case proceeds. Chief Justice Roberts wrote that the ruling confirms the Fed’s standing as an independent agency whose governors have for-cause protection. That ruling is interim, and the final word is still coming. But it shows the Court still draws lines. It just drew most of them closer to the president than Congress drew them in 1978.
So the job with our congressional majority is to build on the ground the Court left standing, and Congress owns some of that ground outright. GAO sits in the legislative branch, and the president can’t fire the Comptroller General at will, since removal takes an act of Congress. That model can grow. Congress can build its own capacity to audit agencies, check the numbers and investigate misconduct instead of relying on officials who now serve at the president’s whim.
The purse is the second lever. The jobs report already comes out on a schedule published in advance, but that schedule rests on federal statistical policy, not law, and policy can be rewritten. Congress can fund the statistical agencies on the condition that their release dates are fixed in statute, where no appointee can move them.
Confirmation is the third. Every inspector general, U.S. attorney and agency head needs Senate approval, and a Senate can refuse anyone who won’t commit on the record to the rules. That carries no penalty, but it raises the price of being the kind of person who would break them.
None of this is as clean as for-cause protection. It’s what remains, and it’s worth the fight.
The rights
In March 2025, the government deported Kilmar Abrego Garcia, a Maryland man, to a prison in El Salvador, even though an immigration court had barred exactly that. The government later conceded in court that the removal was illegal and called it an administrative error. Around the same time, it used the Alien Enemies Act, a 1798 wartime law, to fly men to the same prison with almost no warning. All nine justices agreed that people facing removal under that law must get notice and a real chance to challenge it in court. When the government offered roughly 24 hours, the Court said that “surely does not pass muster.”
The courts held. Every justice agreed on the principle. The trouble is the order of events, because the rulings came after people were already on planes. A right vindicated weeks after you’ve been shipped to a foreign prison is a right with a very long fuse. The fix is consequences that land on the officials who light it: personal penalties for removing someone in defiance of a court order, and a way for people wrongly removed to sue the officials responsible.
The civil service is the other half and dear to my heart. In February the Office of Personnel Management finalized a rule creating Schedule Policy/Career, and on June 3 the president moved about 8,000 career employees into it, making them removable at will. The order also authorized removing employees who fail to “faithfully implement administration policies.” OPM had estimated as many as 50,000 positions could eventually be reclassified. As of June, no court had blocked it.
Think about the analyst who has to write the honest assessment, or the scientist who has to sign the safety review. They now know a single order can make them fireable for doing their job too well. You saw what one allegation did at DHS. This is that, written into a rule.
A bill called the Saving the Civil Service Act would make reclassifications like this unlawful and give Congress the final say. Whether Slaughter eventually reaches rank-and-file civil servants is genuinely unsettled, and I’d rather tell you that than pretend otherwise. What is settled is that protections living only in a regulation can be undone by the next regulation. If they’re going to last, they belong in statute.
What a rule with teeth looks like
Go back to Cochise County, Arizona, in 2022. Two county supervisors refused to certify their election by the state deadline. The secretary of state took them to court, and the board certified only after a judge ordered it. A state grand jury then indicted both supervisors on felony charges, and a judge later ordered them to pay $36,000 in legal fees.
Part One gave you two questions: who enforces it, and what happens to the person who breaks it? Cochise adds the two you ask when you have more time. Is the duty mandatory? When does a violation become visible? Put together, that’s every working guardrail:
A mandatory duty. Certification wasn’t optional. The law said shall, not may.
A named enforcer. The secretary of state had the authority to act, and did.
A real penalty. Felony charges and legal fees, landing on the individuals who broke the rule.
A deadline. A date on the calendar that made the violation visible the moment it happened.
Run the Watergate laws through that list and the trouble jumps out. The Impoundment Control Act has a duty and an enforcer, but no penalty and an enforcer who has sued once in fifty years. The Inspector General Act’s notice rule has a duty and a deadline, but no enforcer and no penalty. The National Emergencies Act has almost nothing, not even an end date.
Now run the fixes through it, and notice which ones pass most easily. ARTICLE ONE, with its 30-day clock. Money that can’t expire while it’s being illegally withheld. Statistics released on dates fixed in law. Every one of them leans hardest on the fourth item, the calendar, because it’s the one part of a guardrail a president can’t fire.
When a member of Congress or a candidate tells you they support accountability, run their proposal through those four questions. If any answer comes back as a shrug, you’re looking at another suggestion.
The honest limits
Part One laid out what Congress can’t do before 2029: it can’t undo Slaughter, it can’t override a veto and the courts will keep vindicating rights slowly, after the harm. What it does control is real. It controls the money, and spending bills have to pass every year. It controls confirmations. It controls its own branch, which means it can build watchdog capacity the Court can’t touch. And it controls the record. Every vote on ARTICLE ONE, on impoundment penalties and on civil service protections tells you who meant it when they said they cared.
The post-Watergate Congress got one thing right. It wrote the rules down. It got one thing badly wrong. It trusted future presidents to treat those rules as binding even where breaking them cost nothing. We’ve now seen what happens when that trust runs out. The job this time is to finish what they started, and to put a calendar on every rule we can.
Part Three is the practical end of this: the bills, the committees, who to call, what to say and how to keep at it once the news moves on. This will be posted Nov 17th.
For transparency, I am not an attorney. I am a retired national security analyst with four decades of federal experience.
Part One: Make Like Wallpaper
