Presidents have a lot of Constitutional powers: the power to wage war; the power to veto laws; the power to pardon criminals; the power to appoint Supreme Court members and other judges. But President-elect Donald Trump and his inner circle are hoping to add a new power to the repertoire, one which would constitute one of the largest expansions of presidential power in modern history: impoundment.
Their theory is that the president has a constitutional authority to withhold, or “impound,” spending from projects after that spending has already been authorized by Congress. Advocates cite examples of past presidents impounding various programs until Congress shut down the practice with 1974’s Impoundment Control Act, which Trump allies view as an unconstitutional law and a congressional power grab.
Trump himself attempted to use impoundment and related powers several times during his first term, most famously to delay paying aid to Ukraine in an attempt to force a prosecution of Joe Biden’s family in that country; this act directly led to Trump’s first impeachment.
Trump’s second term, though, could see a much more extensive use of the power. His nominee to run the Office on Management and Budget, Russ Vought, was on the frontlines fighting for broad impoundment power in the first term, and has sought sweeping cuts to programs like Medicaid and food stamps.
If, as is likely, Congress resists these cuts, Trump and Vought, as well as their flashy spending-cut consultants Elon Musk and Vivek Ramaswamy, could attempt to use impoundment power anyway, sending the fight into courts. There are multiple Supreme Court decisions suggesting such an attempt would be illegal and unconstitutional — but today we have a court where Trump himself appointed a third of the members, and which recently granted him sweeping immunity from prosecution.
If the Court sides with Trump in such a fight, it could set the precedent that presidents can effectively cut spending without Congress, which could have vast, far-reaching implications for everything from health care to defense to science.
Here is what impoundment power is, how it has historically worked, how Trump’s team wants it to work, and why Trump’s view of the power could set the stage for a massive executive power grab, altering fundamentally the relationship between Congress and the president.
Impoundment, explained
The official definition of “impoundment,” per the Government Accountability Office (GAO) that oversees the practice, is “any action or inaction by an officer or employee of the federal government that precludes obligation or expenditure of budget authority.” In other words: any time someone in the federal government doesn’t spend money that Congress has ordered it to spend.
This takes two forms: rescission, and deferral. In rescission, the spending is simply canceled, while in deferral it is withheld temporarily, in theory to be spent in the future. Under the Impoundment Control Act, passed in 1974, both rescissions and deferrals can be passed by Congress at any time, and they can also be requested by the president. But any presidential requests have to be approved by Congress to take effect, and that has happened quite rarely.
From fiscal year 1974, when these provisions took effect, and 2018, the last year when a president invoked this provision, presidents have proposed $92 billion in rescissions, of which only $25 billion were approved by Congress. To put that in context, combined federal spending from 1974 to 2018 was about $83.6 trillion, and approved presidentially suggested rescissions amount to 0.07 percent of that. No Impoundment Control Act rescission has been approved since 2000, and George W. Bush and Barack Obama did not so much as propose any. The act is just not a very important part of the budget process, typically.
The GAO has also recognized a practice called “programmatic delay,” which it views as not technically impoundment but which is closely related. Programmatic delays occur when the government is trying to spend money Congress has instructed it to spend, but factors outside their control preclude this. The GAO has offered as an example a program in which the government is supposed to provide a certain amount of money in loans, but where there are few applicants so the program simply cannot lend out the total amount Congress has set aside for this purpose.
Another more recent example was Biden’s executive order upon taking office instructing a pause in the construction of border walls and fences with Mexico. While Congress had appropriated money specifically for border barriers, the GAO ruled that the Biden administration was merely “programmatically delaying” the project, because the delays were chalked up to environmental reviews and other hurdles that it was legally required to clear before continuing construction.
Programmatic delay does offer the executive branch some flexibility in spending, but only a bit. Otherwise, the Impoundment Control Act is very clear: The president cannot refuse to spend money that Congress has told him to spend. The GAO is empowered to challenge the president if it sees this limitation being contradicted, as it did when Trump withheld funds from Ukraine in 2019. In that case, the funds were eventually released and the incident led to Trump’s impeachment.
The history of impoundment and impoundment control
If you read enough about impoundment, you’re going to hear about the gunboats.
In 1803, Congress had appropriated $50,000 (about $1.4 million in today’s dollars) for some gunboats on the Mississippi River, provoked by France’s refusal to offer the US access to the Port of New Orleans at the end of 1802. President Thomas Jefferson declined to purchase the gunboats, however, because he had enlisted Secretary of State James Madison to negotiate with Napoleon in secret with another goal in mind: simply buying all of France’s North American territories. In July 1803, the Louisiana Purchase was announced, rendering the gunboats unnecessary. All in all, it was a much better deal.
In October, Jefferson explained the decision in his State of the Union message to Congress, telling representatives that, “The favorable and peaceable turn of affairs on the Mississippi rendered an immediate execution of that law unnecessary.” The historian Allan Damon notes that this was technically a deferral, not an impoundment, because Jefferson wound up buying the gunboats in 1804, as part of his more general efforts to build out the embryonic Navy.
To advocates of impoundment — most notably Mark Paoletta, who served as general counsel for the Office on Management and Budget in Trump’s first term and has written extensively in defense of a broad impoundment power — this kind of history proves that impoundment is as American as apple pie. In a detailed report with co-authors Daniel Shapiro and Brandon Stras, Paoletta observes, “The Jeffersonians recognized that Congress’s power of the purse was a power to set a ceiling on appropriations. The power of the purse did nothing to encroach the Executive’s inherent discretion to spend less than the amount appropriated.”
Critics with a more mainstream view of the issue think this wildly misunderstands the history. Zachary Price, a professor at UC Law San Francisco, notes that the underlying statute appropriating the $50,000 for the gunboats “authorized expenditure without requiring it.” The text of the law “authorized and empowered” Jefferson to order the construction of “a number not exceeding fifteen gun boats” with “a sum not exceeding fifty thousand dollars.” Through that wording, Congress was giving the president the discretion to spend as much as $50,000 on the boats, but also the discretion to decline.
More to the point, Congress and the president for most of the 19th and 20th centuries operated with a shared understanding that spending bills offered this kind of flexibility. “Both Congress and the executive branch … seem to have followed a default understanding that appropriations statutes conferred implicit authority to forego spending when it proved unnecessary or when statutory goals could be accomplished with a smaller expenditure,” Price writes.
Most historical impoundments, according to Georgetown law professor Eloise Pasachoff, were also for efficiency rather than policy reasons: if Congress, say, instructed the government to build a bridge for $100 million, and the bridge wound up only costing $90 million, the president might decline to spend $10 million because he could accomplish the same goal at a lower cost. “If you look at these examples that they’re bringing out, they mostly fall in the category of ‘Congress has appropriated money for something but it turns out we don’t need the full extent of that money,’” Pasachoff told Vox.
So you can certainly find examples from Jefferson to LBJ of presidents declining to spend money that had been authorized. Paoletta sees this as evidence that the president has a broad power to impound funds. Price and Pasachoff see it as evidence that Congress intended this flexibility: Impoundment was a power that Congress granted to the president in specific, limited contexts, but not an inherent power of the president.
This governing order, of Congress allowing impoundments on the understanding that the president would use the power responsibly, broke down in the 1970s under the Nixon administration. Both the Senate and House were solidly Democratic for Richard Nixon’s entire presidency, and he sought to use impoundment as a means of influencing spending without needing their approval. His attempts were far more sweeping than previous presidents, including gambits like an effort to outright eliminate the Office of Economic Opportunity, a key agency of LBJ’s war on poverty, and simply refusing to spend money on anti-water pollution efforts even after Congress had appropriated money for the effort over his veto. He declared that this was an absolute Constitutional power of the presidency.
He was more or less alone in that. In 1969, Assistant Attorney General William Rehnquist (who two years later would be appointed to the Supreme Court and 15 years after that become chief justice) wrote a memo concluding that there is no constitutional right to impoundment. This was a very conservative Nixon official, one who Nixon would himself promote to the highest court in the land a few years later, concluding that the constitutional argument was bunk.
In 1975, after Nixon had already resigned in disgrace, the water pollution case made its way to the Supreme Court, which ruled unanimously that Nixon’s Environmental Protection Agency had illegally withheld the funds.
In 1974, Congress sought to clarify matters by passing the Impoundment Control Act as part of a legislative package that also set up the modern budget process and created the Congressional Budget Office. The law did not so much make impoundment illegal as it clarified that impoundment, when not explicitly authorized by Congress in spending laws, was always illegal, and set up a process through which presidents could seek to roll back spending in an orderly way, but only with Congress’s participation.
“It’s not like the Impoundment Control Act took away the legal ability of the president to do that,” Philip Joyce, a professor of public policy at the University of Maryland and an expert on the budget process, told me. “The courts had already found there was no legal authority for the president to impound funds.”
Can Trump actually do this?
Trump, in his first term, sought to bring back impoundment power to a degree not seen since Nixon. In 2018, he sought $15.2 billion in rescissions, the bulk coming from the Children’s Health Insurance Program, which supports state programs to insure children, usually through Medicaid.
The House first shaved half a billion off the cuts before narrowly passing them, then two Senate Republicans (Richard Burr and Susan Collins) voted against the package, enough to doom it given the Republicans’ narrow majority in the Senate. Despite that setback, his team kept repeatedly considering rescission packages, especially against foreign aid, only to back down under pressure from Congress.
The most infamous invocation of this power came in 2019, when the Office on Management and Budget sought unilaterally to delay aid to Ukraine, without asking Congress. The GAO eventually ruled that while the non-military aid delay was legal (it was a “programmatic delay” necessitated by circumstances), withholding $214 million in military assistance was not.
Later in 2019, the public learned that Trump had, in a phone call with Ukrainian President Volodymyr Zelenskyy, stated, “I would like you to do us a favor” in exchange for the aid, specifically investigating the Biden family for corruption as well as a conspiracy theory that a Ukrainian, not Russia, hacked Democrats in 2016. The revelation that the aid was withheld specifically in a move to leverage a foreign nation into attacking a political opponent led to Trump’s first impeachment.
But while Trump’s rescissions became a background detail to a broader scandal, his team continued to insist upon the power. As Trump was leaving office, Office of Management and Budget director Russ Vought and his general counsel Mark Paoletta wrote a letter to the House Budget Committee arguing that the Impoundment Control Act “should be significantly reformed or repealed.” They sent a final rescission package to Congress in January 2021, despite knowing it was dead in the water, underlining their seriousness about the procedure. Vought and Paoletta have since gone further and now argue that the Impoundment Control Act and its limits on impoundment powers are not just unwise, but unconstitutional.
The least dramatic way that Trump could use impoundment is by submitting rescission packages to Congress and watching them be approved, by a simple majority vote of each house. Rescission packages cannot be filibustered, so in principle the narrow Republican majority in the House and Senate could simply rubber-stamp the measures.
The power becomes truly interesting, however, if Trump insists upon cuts that Congress will not approve. One could imagine a repeat of the 2017 fight to repeal Obamacare, except, when enough Republicans defect to doom the effort in Congress, Trump and Vought opt to simply impound funds for the Medicaid expansion and Affordable Care Act premium subsidies unilaterally. This would inevitably provoke a legal challenge that could make its way to the Supreme Court.
It’s a fool’s errand to predict what the Court would say on the matter, but we know a few things. Court precedent is solidly against a presidential impoundment power. In 1838, the Court ruled in Kendall v. United States ex Rel. Stokes that the executive branch could not fail to pay a debt that Congress had instructed it to pay, writing, “that the obligation imposed on the President to see the laws faithfully executed, implies a power to forbid their execution, is a novel construction of the constitution, and entirely inadmissible.” Paoletta and co-authors argue that because this was not technically an impoundment, it’s not a binding precedent.
But the 1975 Supreme Court case on the Nixon EPA dispute, Train v. City of New York, did directly speak to impoundments, and reached the same conclusion. Paoletta counters that the opinion in that case was written narrowly and based on the reading of the statute authorizing the EPA’s spending; it “does not address the President’s constitutional impoundment power.” That feels somewhat unconvincing though; as Bowdoin College political scientist Andrew Rudalevige has noted, “presumably, if the president had inherent impoundment authority grounded in the Constitution, statutory language could not have set it aside.”
All that said, the current court famously set aside a 49-year-old precedent when it overruled Roe v. Wade, and a 40-year-old precedent when it overruled Chevron v. NRDC. It could surely overturn Train and Kendall too, should it so desire; it could also assert a presidential impoundment power and massage its ruling such that it does not have to technically overrule those precedents, perhaps by parsing the decisions narrowly the way that Paoletta does.
If the Court were to agree with the Paoletta argument, we’d be in a whole new world in terms of federal spending. Presidents would suddenly have a significant power to make spending cuts without congressional buy-in. Importantly, the power would be asymmetrical, tilted toward slashing programs versus building them. President Bernie Sanders could not use this power to set up a Medicare-for-All program, but a Republican president could use it to end Medicare outright.
Such a world feels so fantastical from the standpoint of the last half-century of budget battles that to imagine it almost feels like playing Dungeons & Dragons. But Trump has assembled a team dedicated to bringing us into such a world, and it may encroach upon our reality sooner than we expect.
