The greatest fear of the Founding Fathers, a fear stoked by their reading of history, was the inevitability that the American republic, like those in antiquity, would end in corruption. A convincing argument can be made that corruption is precisely what happened to this country, reaching a culmination in the Biden and Obama years and thus resulting in the two elections won by Donald Trump.

Trump’s appeal lies in the fact that he made clear he understood how our federal government had strayed from the original design of limited and enumerated powers to become, in effect, a gigantic monstrosity of redistribution of income, or, perhaps, even more accurately, a colossal money laundry, taking money from taxpayers and funneling it—often through government contracts with NGOs—into the pockets of politicians and their cronies.

Perhaps the most notorious such operation was that of USAID, but the nefarious pattern exists throughout the alphabet-soup of agencies in the nation’s capital.

Trump’s appointment of Elon Musk as the head of the Department of Governmental Efficiency (DOGE), where he seeks to root out governmental waste and fraud, was a brilliant stroke. But the bureaucracy is fighting back through the courts. A plethora of federal district court judges (most of whom were appointed by Democratic presidents, as it is the Democrats who are the primary beneficiaries of the longstanding corruption) have issued orders to stop DOGE from shutting down governmental miscreants. There are several different ways federal trial court judges can try to stymie the Trump administration, as there are now so many thousands of pages of federal regulations that a judge determined to find a failure to comply with applicable law has an easy time of it.

One means of stopping DOGE has attracted particular notice, and that is for a federal judge to rule that the president, through DOGE or otherwise, has illegally “impounded” funds authorized by Congress, and wrongly refused to spend them in the manner Congress dictated.

Upon a cursory hearing, this argument appears to raise fundamental separation of powers questions, as our constitutional structure gives Congress the power to pass laws (and appropriate funds) and requires that the president “take care” that the laws be faithfully executed. Nevertheless, from the presidency of Thomas Jefferson onward it has been common practice for the chief executive to refuse to expend (or “impound”) funds when he believes such expenditure is not required to carry out a law and is not in the best interests of the nation. Since the executive branch, and only the executive branch, executes the laws, the president clearly has the power to check inappropriate or excessive congressional spending.

Whether that power is accompanied by the right to do so is now uncertain. In 1974, Congress passed the Congressional Budget and Impoundment Control Act declaring, in effect, that the presidential impoundment power could not be exercised unless Congress expressly authorized it and set forth a procedure for such authorization. If the president possesses the impoundment power under the Constitution, however, it would appear that a congressional statute cannot circumscribe that power, and only a constitutional amendment could do so. When Richard Nixon sought to impound funds for a measure that he had previously vetoed (and which was eventually passed over his veto), the Supreme Court rendered an opinion in 1975 condemning and overruling his administration’s action. But that decision did not expressly declare the impoundment power unconstitutional and turned only on the language of the Clean Air Act.

The Trump administration has not sought congressional approval for any of the president’s or DOGE’s actions that might be construed as impoundment. Court cases are pending charging the administration with violation of the 1974 Act because the administration has sought to impound funds dealing with DEI programs (which the president has sought to bar by executive order). The administration has taken the position that Congress may not circumscribe the impoundment power of the president.

We have been accustomed to think that only the judiciary can tell us what the law is, and the scope of the impoundment power and the power of federal judges to nullify presidential actions appears inevitably to be headed to resolution by the Supreme Court. One case is already before that Court on the question of whether individual district judges, who have limited jurisdiction, can issue nationwide injunctions halting executive action. A decision on the impoundment power, and, indeed, the legitimacy of DOGE itself, also seems inevitable. Our partisan judges or justices can find precedents to support a ruling either way on these matters, but if the United States Supreme Court fails to come to grips with the unparallelled fraud and corruption that currently besets the federal Leviathan, we will be irretrievably in the framers’ nightmare, where corruption reigns supreme.

Chief Justice John Roberts has been injudiciously attacking Trump for the president’s suggestion that one of the judges attempting to cancel actions deporting criminal migrants ought to be “impeached.” This conduct is not reassuring with regard to the chief justice’s understanding of the nature of the constitutional crisis we may soon be facing. Whether the republic survives may come down to whether Justice Amy Coney Barrett (who has, of late, sided with Roberts’s rulings against the administration) can be made to understand that DOGE and other Trump administration initiatives must be permitted to go forward.

On more than one occasion, the president has indicated that he follows the rulings of the courts, but we may soon reach a point where the president may have to choose a course of action in defiance of federal court decisions he believes to be in constitutional error.

Nothing in the Constitution makes the judiciary the exclusive arbiter of the meaning of that document, and, at various points in our history, both Congress and the executive branch have, in effect, asserted the power to determine the meaning of the Constitution. During FDR’s administration, he asserted that it was necessary to save the Constitution from the Court and the Court from itself. Whether that happens again may soon be decided by the justices.