Sean Duffy will be confirmed as early as Thursday as America's new Secretary of Transportation — but will he keep his promise to follow the law or follow an executive order from President Trump that threatens to bring billions of infrastructure spending to a halt?
After a unanimous committee vote on Wednesday, the former reality TV star, Wisconsin congressman, and Fox News host was immediately reminded what GOP senators expect from him when he takes over U.S. DOT: Sen. Ted Cruz (R-Texas) said Duffy's job was to "make it easier and faster for families, commuters, truckers, and flyers to get around without running into traffic, potholes or delays" while also battling the "radical environmentalists" who have shifted the federal permitting process "from NIMBY to BANANAs, as in, Build Absolutely Nothing Anywhere Near Anyone."
"I expect that to end with Secretary Duffy," Cruz said.
That confirmation followed Duffy's promise at his collegial confirmation hearing last week that he would fulfill his legal obligation to release transportation funds authorized by Congress in a "timely" manner — even adding that he would "make sure we're getting it out the door faster for these really important projects and try to identify what the holdups are."
Since that hearing, though, President Trump has issued an executive order that directs federal agencies to "immediately pause the disbursement of funds appropriated through the Inflation Reduction Act of 2022 or the Infrastructure Investment and Jobs Act, including but not limited to funds for electric vehicle charging stations."
Some feared that alarming wording meant that Trump would completely halt the implementation of what some have called the biggest climate spending bill ever, the Inflation Reduction Act, and the bill that powers all of the country's core transportation programs, the Infrastructure Investment and Jobs Act (also known as the Bipartisan Infrastructure Law). And in the process, he'd take down some of the most important guaranteed funding sources for transit, biking and walking, while suspending hundreds of millions for visionary discretionary projects announced just days ago under Biden.
The question of whether Trump or Duffy can actually do that, of course, is a lot more complicated — even if the president doesn't appear to be waiting for legal clarity before testing the limits of his executive power in arenas that extend far beyond the transportation realm.
Indeed, in interviews conducted by a team of six journalists at Politico, experts and politicians disagreed on how seriously to take Trump's threat to potentially pause a wide swath of America's federally funded transportation projects, and what can and should be done to counter it. Because Congress controls the power of the purse, federal agencies like U.S. DOT are generally required by law to spend the money outlined in bills, especially if DOT is reimbursing a state or local agency for a project it's already completed under the promise of a federal grant, or doling out core "formula" funding whose amount is supposed to be guaranteed.
Some, like Charlie Ellsworth of the Congressional Integrity Project, called Trump's order "violating contract laws as well as the Constitution"; Bobby Kogan of the Center for American Progress said the pause could be "extremely illegal," while others said it would likely be subject to lawsuits.
But others, including University of Michigan law professor Nicholas Bagley, shrugged the order off as little more than "aggressive rhetoric" that he predicted would only be "back[ed] up with fairly milquetoast instructions to agencies," like asking Duffy to briefly review whether grant decisions comply with existing laws before sending money out the door.
Still others questioned whether Trump's intention wasn't to hamstring U.S. transportation at all, but simply to attack the electric vehicle charging programs he name-checked in his directive — though "in their zeal to single out EVs and EV-related programs, they drafted an executive order that effectively pauses all transportation and infrastructure dollars," FHWA alum Andrew Rogers said.
Of course, if Trump does succeed in suspending the implementation of America's two largest infrastructure bills, he might also pause some of the massive and destructive highway projects those bills have funded, albeit alongside the comparatively small pots of money for safety that accompany them. Jeff Davis of the Eno Center for Transportation particularly called out a multi-billion-dollar bridge program authorized under the Bipartisan Infrastructure Law, which he says could face "immediate shutdown" if the order is interpreted broadly.
If Trump does that, though, Duffy will face a difficult choice: defy his boss in order to comply with the law and keep his promise to Congress, or explaining to the American people why Trump, who once pitched himself as "the builder president," is halting billions of dollars in infrastructure projects.
Or, to echo Sen. Amy Klobuchar (D-Minn.) on Wednesday, "I'm concerned about the recent executive order ... to stop the rollout of some of the funding, delaying and adding costs, in my mind, to these projects. I hope that he will be an advocate for getting these projects done and moving forward."
