Trump’s Advertising Controversy and the Rise of “Practical Immunity”

In early October, weeks before the 2026 midterm elections, a federal judge ordered the Trump administration to halt taxpayer-funded television advertisements that praised President Donald Trump. Two of the ads continued to air after the court’s deadline, including during major news programs. The administration’s lawyers argued that the plaintiffs—Common Cause and two unions—lacked standing and that the case was moot because the campaign was ending. The court rejected both arguments, finding that the ads violated federal appropriations law that bars the use of federal money for unauthorized publicity.

Salon

The dispute reflects a broader pattern of executive encroachment on the “power of the purse.” Under the Impoundment Control Act of 1974, presidents may spend federal funds only for purposes authorized by Congress. In July 2024, the Supreme Court’s decision in *Trump v. United States* granted former presidents sweeping “absolute immunity” from criminal prosecution for actions taken under core constitutional powers, while preserving Congress’s authority to investigate and legislate. Despite this, the Trump administration in September 2026 executed a “pocket rescission” that cancelled more than $800 million in congressionally approved spending for immigrant services, climate initiatives, and civil-rights programs. Republican leaders in the House blocked attempts by a few members to intervene, allowing the rescission to proceed without congressional review.

Salon

The Government Accountability Office, an independent oversight agency, concluded that tactics such as the pocket rescission and the prohibited ads violate federal law. While the court’s ruling limited presidential criminal liability, it affirmed that Congress retains constitutional powers to oversee spending, conduct investigations, and pursue impeachment when warranted.

Salon

Legal scholars Daryl Levinson and Richard Pildes describe the current environment as “practical immunity,” borrowing from penal-system research that highlights how legal obstacles, institutional hesitation, and political incentives can shield officials from accountability even when statutes are clear. They argue that partisan dynamics—particularly when one party controls both Congress and the presidency—reduce legislators’ willingness to defend institutional authority, fearing intra-party retaliation.

Salon

The combined effect of judicial immunity, congressional inaction, and executive spending maneuvers suggests a weakening of the constitutional checks envisioned by the framers. When legislative leaders treat their constitutional powers as expendable, the presidency can operate in ways that may contravene federal law and erode democratic norms, leaving the president with little fear of meaningful institutional consequences.

Salon