The federal government is headed for a shutdown on Friday unless Congress can agree in time to a stop-gap spending measure. But if GOP leaders don’t add provisions reversing every lawless spending cut made by Elon Musk’s supposed Department of Government Efficiency (DOGE), every Democrat in the House and Senate must vote “no.” After all, many GOP Senators themselves have admitted that Musk’s budget impoundments are illegal.

As Josh Marshall of TPM explained, House Speaker Mike Johnson’s continuing resolution to keep the government running through the end of September does nothing of the sort:

The bill is being billed as a “clean CR” — in other words, just a continuation of the Biden budget. That’s not true. It’s the Biden-era stuff plus new money for a bunch of Trump priorities. What it doesn’t do is lock in the Musk-illegal cuts. What that also means is that it appropriates a bunch of money for stuff Elon has already shut down. So where’s that money go exactly? [Emphasis mine]

That’s a very good question and one Republicans must answer.

As I’ve written previously, the Impoundment Control Act of 1974 (ICA), past Supreme Court rulings and the overwhelming consensus of legal observers make clear that the President cannot unilaterally delay or withhold spending funds approved by Congress. The provisions of the ICA pit in place specific process the President must follow to obtain Congressional approval of his proposed “rescissions” within 45 days. As the Committee for a Responsible Federal Budget (CRFB) explained, the ICA’s rescission process has frequently been used by both parties:

Since the ICA was passed, Presidents from both parties have submitted over 1,100 rescission proposals to Congress, totaling $76 billion, of which approximately 40 percent have been approved.

On March 6, Judge John J. McConnell Jr. of the Federal District Court for the District of Rhode Island concluded as much in response to a lawsuit brought by 22 states and the District of Columbia. McConnell ordered a legion of federal agencies to refrain from “pausing, freezing, blocking, canceling, suspending, terminating or otherwise impeding the disbursement of appropriated federal funds to the States under awarded grants, executed contracts or other executed financial obligations.”

“Here, the executive put itself above Congress. It imposed a categorical mandate on the spending of congressionally appropriated and obligated funds without regard to Congress’s authority to control spending.” [Emphasis mine]

But while Donald Trump and his OMB chief Russell Vought are confident that the GOP-dominated Supreme Court will rule in their favor, some Republican Senators aren’t so sure. After getting inundated by constituent outrage over DOGE cuts Musk did not warn them were coming, some Senate Republicans begged him to change course. Senator Susan Collins of Maine, who voted against Trump’s attempt to use the rescission process to recover $15 billion in 2018, warned, “I see this as an institutional issue.” But for Rand Paul (R-KY), the Trump-Musk gambit is worse that a crime; it’s a mistake. As Roll Call reported on the meeting between Musk and GOP Senators last week, Senator Paul told Musk to “get over the impoundment idea”:

Paul said Wednesday morning’s Supreme Court ruling that lifted the administration’s hold on roughly $2 billion in foreign aid spending was an indication that the administration wasn’t on solidly legal ground.

“We had a ruling this morning from the Supreme Court that seems to be pushing towards that there needs to be rescission, that they’re not going to be able to impound. I thought the court would actually let them impound it until Sept. 30, until the end of the year. They’re already saying, ‘No, it’s going back to the lower court,'” Paul said. “So my message to Elon was, let’s get over the impoundment idea. Let’s send it back as a rescission package, because then we’ll get … 51 senators, or 50 senators to cut the spending.”

Senator Josh Hawley (R-MO) shared Paul’s worry, declaring that “this Court does not look like it's warming towards the impoundment theory” espoused by the Trump administration. He backed Senator Paul’s proposal that President Trump present DOGE’s recommendations as a package of rescissions totaling $500 billion in spending cuts. And as Texas Senator John Cornyn noted, these rescissions can only come from discretionary spending, not the mandatory outlays determined by legislative formulas for programs like Medicare, Medicaid, Social Security and interest on the national debt.

“My understanding is, since the budget reconciliation deals with mandatory spending [and] that the DOGE cuts would be primarily from discretionary, the way we’d do that procedurally is for the White House to request us to take up a rescissions package. We could pass it with 51 votes here and a majority in the House.”

Lindsey Graham (R-SC) also told Musk that going the legal rescission route would have multiple benefits for Republicans. By coordinating with Musk in advance and blocking only the most egregious cuts certain to provoke constituent fury, Graham announced, Senate Republicans could help the White House “go on offense.” That way, Graham insisted, “you can regain altitude [by taking] the work product, get away from the personalities and the drama, take the work product and vote on it.”

As NBC reported last week, Elon Musk was supposedly elated to learn that he did not need a 60 vote, filibuster-proof majority to make his rescissions permanent:

Multiple senators said Musk was surprised to learn there was a viable legislative pathway to making DOGE’s cuts permeant. Sen. Lindsey Graham, R-S.C., said Musk was “so happy” when he heard the news, telling reporters that Musk pumped his fists and danced.

I say “supposedly,” because it is simply inconceivable that Elon Musk did not know about the workings of the Impoundment Control Act of 1974. It’s not just that Donald Trump in June 2023 promised to “to challenge the constitutionality of limits placed on the Impoundment Power by the Congressional Budget and Impoundment Control Act of 1974 (CBA), the source of Congress’s usurpation of Executive Branch powers” and “[bring] back bringing back Impoundment will give us a crucial tool with which to obliterate the Deep State, Drain the Swamp, and starve the Warmongers.” In his November 20, 2024 op-ed jointly authored with soon-to-be departed DOGE co-chairman Vivek Ramaswamy, Musk himself declared he, too, would ignore the law and precedent in making unilateral cuts in federal spending:

Finally, we are focused on delivering cost savings for taxpayers. Skeptics question how much federal spending DOGE can tame through executive action alone. They point to the 1974 Impoundment Control Act, which stops the president from ceasing expenditures authorized by Congress. Mr. Trump has previously suggested this statute is unconstitutional, and we believe the current Supreme Court would likely side with him on this question.

As last week’s conversations with Musk show, President Trump’s allies in the Senate aren’t so sure about that. And for Senate Majority Leader John Thune (R-SD) to pass any continuing resolution to keep the federal government open after Friday, he’s going to need Democratic votes to reach the needed 60 vote threshold. Until Republicans commit to following the law and preserving Congress’ power of the purse, Thune shouldn’t get a single Democratic vote. To put it another way, the message from Democrats must be “keep the government open, shut down DOGE.”