Donald Trump having ideas is rarely a good idea, but one of his today is congruent with nearly two centuries of presidential and congressional practices. This does not, however, mean that the Impoundment Control Act of 1974 is, as he insists, unconstitutional. Or that repealing or modifying it to enlarge the practice of presidents refusing to spend portions of appropriated funds would suit today’s conditions. Today’s presidency would become even more overbearing were Congress to further its self-diminishment by accepting additional attenuation of its core power: control of the purse.
The ICA was enacted because of animus related to Watergate abuses, anxiety about an “imperial presidency” and Richard M. Nixon’s aggressive impounding — withholding authorized spending. The ICA has almost ended impounding, which is, however, a practice as old as the Republic.
Mark Paoletta, general counsel of Trump’s Office of Management and Budget and now senior fellow at the Center for Renewing America, has, with two young scholars, written for the center a trenchant history of impoundments. It demonstrates that, beginning with George Washington, Congress has acquiesced in presidents’ refusing to spend all funds appropriated by Congress. As when, in 1803, Thomas Jefferson concluded, for policy reasons, that Mississippi River gunboats, for which Congress had authorized $50,000, were no longer militarily necessary or diplomatically prudent.
The center’s report says that “the first recorded instance of legislative pushback on impoundments” did not come until 1943, when “Congress enacted a measure to prohibit the impoundment of highway funds by the Director of the Budget Bureau.” From the Founding until the post-World War II era, most presidents considered appropriations measures permissive, not mandatory. And Congress agreed, understanding Congress’s power of the purse as the power to place ceilings on spending: Spending authorizations were not requirements.
Impounding raises constitutional issues similar to those surrounding a line-item veto. In 1996, Congress gave the president a line-item veto by statute, but the Supreme Court declared this incompatible with the Constitution’s presentment clause: Every bill passed by Congress “shall, before it becomes law, be presented” to the president, who shall either sign it or return it to Capitol Hill. The antecedent of the pronoun “it” is the entire bill, not bits of it. Line-item vetoes could remove from legislation some provisions that were necessary for assembling a congressional majority for the legislation.
Today, three questions are: Does impoundment violate the separation of powers by allowing presidents to exercise essentially legislative power? Does the ICA unconstitutionally limit the president’s implied power to exercise discretion when taking care that “the laws be faithfully executed”? And if Congress can so limit the president, should it? The answers are: sometimes, no and yes.
The separation of powers would be shredded were presidents allowed to cancel provisions of appropriations bills for policy reasons. This would be difficult to distinguish from allowing presidents, whose core constitutional duty is in the take care clause, to legislate.
Trump correctly argues that impoundment’s long pedigree proves that the practice is not norm-shattering. But he mistakenly argues that the ICA unconstitutionally infringes the president’s power to perform his “take care” duty. Surely Congress can say whether, or the extent to which, appropriations do more than stipulate spending ceilings.
Never mind Jefferson and the gunboats. Given today’s sprawling, ever-metastasizing administrative state, and ever-more-freewheeling presidents, and Congress’s lassitude about its evaporating primacy, weakening the ICA to encourage presidential impoundments for policy reasons would exacerbate those deplorable tendencies.
The single appropriations bill passed by the first Congress in 1789 was 142 words long. Today, omnibus appropriations bills, which often have more than 20 times that number of pages, and sometimes more than 4,000 pages, are passed because Congress’s broken budget process routinely fails to produce 12 appropriations bills on time.
Trump’s belief that impoundment is “the only way we will ever return to a balanced budget” is arithmetically illiterate: Entitlement spending (principally Social Security and Medicare), which drives the federal government’s indebtedness, is not subject to impoundment. Mandatory spending is 73 percent of the budget, and Trump (sensibly) wants more defense spending. He could impound all nondefense discretionary spending (2024 estimate: $948 billion) and only cut the estimated deficit ($1.9 trillion) in half.
The Center for Renewing America’s report approvingly quotes Franklin D. Roosevelt’s judgment that mandating the full expenditure of appropriated funds “would take from the Chief Executive every incentive for good management and the practice of commonsense economy.” Even without Roosevelt’s hyperbole (“every incentive”?), his valid goals — efficient management and economizing — are less urgent than the goals of buttressing Congress and leashing the rampant presidency.
