FEMA loses…again … and House stands firm against non-citizens

I'd love to help, but where in the Constitution does it say Congress can spend the people's money on charity?

The Senate majority leader has done it. Probably more explicitly than I had expected in feeding the President’s agenda. On the topic of supporting non-resident immigrants, he stated that  he "could not undertake to lay his finger on that article in the Federal constitution, which granted a right to Congress of expending, on objects of benevolence, the money of their constituents." He warned that if Congress "once broke the line laid down before them... it was impossible to say, to what lengths they might go."

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FEMA Loses Again

On May 26, 2026, Judge Barbara Rothstein handed Washington State a victory against FEMA and DHS for the Shelter and Services Program (SSP). Congress had previously funded it to reimburse states and non-federal groups that shelter, feed, and transport noncitizen migrants released from DHS custody. Washington had a $4 million SSP award. FEMA terminated it illegally.

Disclaimer: the views expressed in this post are solely my own, published under my first amendment rights, and do not necessarily reflect the views of the United States Government or any of its current or former federal agencies.

The Case

FEMA claimed that funding shelter for migrants "no longer effectuated DHS's current priorities" because those migrants "often have no legal status and are in the United States unlawfully". So it unilaterally canceled the grant and the program. The federal judge in Seattle just told the Executive Branch something it should already know: you don't get to spend, or un-spend, Congress's money based on your own opinion.

250 year debate about social services

This is the heart of the case, and it's older than FEMA, older than DHS, older than the income tax. The Constitution gives the power of the purse to Congress. Not the President. Article I, Section 9: "No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law." See my earlier post about federal grants and my perspective of why government is inefficient  

The court joined other district courts in hitting the executive squarely between the eyes: "once Congress appropriates funds for a specified purpose, the Executive may not withhold or cancel those funds simply because it disagrees with Congress's policy judgment." My other recent favorite quote comes from Judge Tana Lin in the same Court. On a similar case about the executive’s termination of a Congressional grant program, (Washington v. US DOT, decided January 23, 2026), the judge rebuked, “Such capriciousness runs counter to the Administrative Procedure Act; it is simply not how things are lawfully done.”

This is the same locus-of-power point I have been making since my USAID obituary. When the Executive tries to nullify spending it dislikes, the fight ends up in court, and eventually it ends up back at Congress. Congress holds the purse. That is the architecture of the American system of Government.

Now for the irony

OK. Let me now lay all the cards on the table. The quote earlier from the Speaker of the House was not from 2026. Nor from the last century or the one before. It was actually from James Madison in 1794. I highlight it here because the principle the court used to protect spending on noncitizen migrants in 2026 is the very same principle that, in 1794, was used to resist spending on noncitizen refugees.

What happened in 1794?

In January 1794, a wave of roughly three thousand French refugees had fled the slave revolution in Saint-Domingue (today's Haiti) and landed in American cities. Baltimore had passed the hat and raised $13,000 privately, but the money was running out. A petition reached Congress: please help these refugees.

A South Carolina congressman argued the relief was lawful and reminded everyone how much America owed France. And then James Madison, the man often called the Father of the Constitution, stood up and said, “I'd love to help, but where in the Constitution does it say Congress can spend the people's money on charity?”

Here is the symmetry:

• 1794: A congressman wants to spend federal money on noncitizen refugees. Madison says Congress may have no constitutional authority to do it.
• 2026: Congress has chosen to spend federal money on noncitizen migrants. The Executive says it won't, and the court says the Executive has no constitutional authority to refuse.

In both centuries the argument is about the same clause and the same fear: the money of the constituents, and who gets to decide where it goes. The difference is which branch is reaching for power it doesn't have.

So is it ironic?

Yes, but read the fine print, because the irony is sharper than it first looks.

Madison wasn't anti-refugee. He said plainly that "every member in that house felt the warmest sympathy with the situation of the sufferers." His scruple was structural, not heartless: he didn't think Congress had been handed the authority to spend on benevolence, and he wasn't willing to invent it. He even floated a workaround, charging the relief against money America already owed France, to avoid creating "a dangerous precedent." Thats the workaround that actually passed, allowing Congress to help without stumbling over the Constitution. On February 12, 1794, President Washington signed "An act providing for the relief of such of the inhabitants of Santo Domingo... as may be found in want of support," authorizing $15,000 from the Treasury BUT to be accounted for from money that the US owed France. 

More than 200 years later, we have the SSP and other programs that provide social safety nets. 

So the real irony isn't just that one century resisted what another embraced. It's this: in 1794 the worry was a Congress that might spend too freely on noncitizens with no constitutional warrant. In 2026 the worry is an Executive that won't honor what Congress did spend, also with no constitutional warrant. Madison feared Congress breaking its own line. He never imagined a President erasing the line entirely.

The clause hasn't changed. Human sympathy hasn't changed. What changed is which branch is testing the fence.

So what happens now?

The court set aside the termination as applied to Washington and restored its ability to submit reimbursement requests. The judge was careful, almost surgical, about what she did not do: she did not order FEMA to pay a single dollar. She only removed the unlawful reason FEMA used to slam the door. FEMA still reviews each request in the ordinary course.

That's the right outcome under the law. But notice the modesty of it. The court can re-open the door. It cannot make the Executive walk through it cheerfully. The harder, slower remedy is the one Madison would recognize, and the one I keep coming back to on this blog: Congress, and only Congress, controls the purse. When the Executive forgets that, the courts will remind it. And the reminder, two centuries later, still cites the same clause Madison was staring at in 1794, albeit for a completely opposite outcome.

I have no idea where we are going as a nation, are we purely capitalist or partly socialist (think social security and medicare for example)? Are we welcoming foreigners like myself who immigrate to the USA and providing them a little bit of support in their new environment? For example, I had a green card, worked, paid taxes, and received financial aid for college. Or are we simply opening the the door to a new world but predicated on self-survival?

“Give me your tired, your poor, your huddled masses yearning to breathe free” as inscribed on a bronze plaque inside the pedestal of the Statue of Liberty

Sources: Order Granting in Part Plaintiff's Motion for Summary Judgment, Washington v. U.S. Dep't of Homeland Security, No. 2:25-cv-1401-BJR (W.D. Wash. May 26, 2026); State of Washington v. U.S. DOT, January 23, 2026, 2026 WL 183584; "Santo Domingan Refugees, [10 January] 1794," Founders Online, National Archives (Papers of James Madison, vol. 15); U.S. Const. art. I, § 9, cl. 7.