(Bloomberg) -- President-elect Donald Trump says he has plenty of ways to shrink the federal government: get rid of the Department of Education; empower two wealthy allies to start an unofficial Department of Government Efficiency; and slash the bureaucracy that regulates government. And one other idea: don’t spend all the money Congress tells him to spend.
He’s telegraphed this last strategy for more than a year, speaking explicitly about defying congressional appropriations and setting up a major challenge to the separation of powers in Washington. Congress, the legislative branch, is supposed to be the one that decides where the money goes. But Trump wants to hold back some money — “impound” it, in the jargon of Washington — to slash the budget. The only problem: There’s a 50-year-old law that forbids that exact gambit.
Who decides how Washington spends its money?
The US Constitution explicitly grants Congress control over how much the government can spend. James Madison, one of the fabled founders of the US, said that this dynamic was key if the country wanted to avoid the monarchic politics it had revolted against. “This power over the purse may, in fact, be regarded as the most complete and effectual weapon with which any constitution can arm the immediate representatives of the people,” Madison wrote in 1788.
Congress has been happy to wield that power. Every year, it passes appropriations bills to fund agency budgets. It has also approved permanent spending programs such as Social Security and the health-care entitlement programs Medicare and Medicaid. For his part, the president is required by the Constitution to “take Care that the Laws be faithfully executed.”
Sometimes, though, a president’s interpretation of what it means to faithfully execute laws differs from Congress’s. The White House, Congress and the courts have wrestled with the question of how much discretion presidents have to not spend money appropriated by Congress since the early days of the republic.
How have presidents tried to work around Congress in the past?
Past impoundments have included Thomas Jefferson’s decision to not spend money appropriated by Congress for gunboats and presidents opting not to spend money on weapons systems after World War II ended.
Generally speaking, impoundments intended to save money on a project are fine. But impounding large amounts due to a policy dispute has periodically led to lawsuits and fights.
In the early 1970s, President Richard Nixon, aiming to save money and curb inflation, impounded tens of billions of dollars of congressional appropriations for assorted programs, including subsidized housing, disaster relief and water projects. Some members of Congress thought the actions amounted to a line-item veto — the power to reject specific parts of a bill while approving the rest of it — that encroached on their turf as lawmakers.
In response to the fracas, Congress passed the Impoundment Control Act in 1974 to reassert its power over spending. While it set up a fast-track process for the president to quickly seek the approval of Congress if he wanted to override its spending decisions, it also established a mechanism for the US comptroller general, who advises Congress, to sue the president for unauthorized impoundments.
What does Trump want to do?
In 2023, Trump targeted the act in a video on his campaign website. “When I return to the White House, I will do everything I can to challenge the Impoundment Control Act in court, and, if necessary, get Congress to overturn it. We will overturn it.”
Trump could potentially file a lawsuit challenging the law’s validity or order spending cuts in violation of it, triggering lawsuits.
Amending the law would likely be far harder, because it would require 60 votes in the US Senate to overcome a likely Democratic filibuster, the practice of demanding never-ending debate to thwart legislation. Republicans will have only 53 seats in the Senate.
What are the arguments for and against impoundment?
Backers of Trump’s view see the Impoundment Control Act as a usurpation of executive authority by Congress, and argue appropriations are a ceiling, not a floor, for spending.
Critics, however, argue that unfettered impoundment powers would usurp Congress’s power over the purse, arrogating near-monarchical authority to the president and precipitating a constitutional crisis.
Constitutional crises have a way of finding their way to the courts. In 1998, the Supreme Court ruled that a line-item veto law that took effect the previous year — which gave the president the authority to nix individual appropriations to rein in deficits — was an unconstitutional ceding of the powers of Congress. It’s anyone’s guess what today’s Supreme Court may do with a potential impoundments case.
- Supporters of presidential impoundment argue their case in a briefing for the Center for Renewing America.
- Opponents of impoundment make their case in a briefing for Protect Democracy.
- The Congressional Research Service explores the history and status of impoundment proposals.
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