Shattering the Separation of Powers
Presidential impoundment Is dangerous and unconstitutional.
(Originally published in The Dispatch)
Imagine the president having the power to unilaterally cancel any expenditure that has already been enacted into law. A Democratic president could wake up one morning and decide to cancel all border patrol spending. Or to cut the defense budget by 20 percent. President Donald Trump could decide on a whim to eliminate Medicaid or veterans’ benefits.
In an extreme case, Trump could announce before the 2026 midterm elections that he will cancel all Social Security and school lunch benefits for any congressional district that elects a Democrat. Or threaten to defund the Supreme Court if it rules against him.
Such a nightmare scenario would grant the president near-dictatorial powers over most government functions. Its evisceration of the separation of powers would be antithetical to the very foundations of the government crafted by James Madison, Alexander Hamilton, and other Founding Fathers. Americans would come to fear that every government program, and even the functional existence of Congress and the courts, depends on the daily will and wishes of the president.
This scenario is far less far-fetched than it sounds. These are the actual stakes in the Trump administration’s aggressive battle to legalize a practice known as “impoundment,” which occurs when a president refuses to implement federal expenditures that were authorized and appropriated by Congress and enacted into law. While no one disputes a president’s authority to veto spending bills passed by Congress (which can be overruled by a two-thirds congressional vote), nearly 235 years of constitutional interpretation, case law, and statute have made clear that—once a law is enacted—the executive branch is not permitted to refuse to execute that law. In matters of federal spending and the implementation of federal programs, impoundment would replace the rule of law with rule by one person.
Impoundment is unconstitutional.
Article 1, Section 9 of the Constitution clearly gives Congress the power of the purse, stating, “No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law.” And rather than grant presidents the authority to refuse implementation of such expenditures, the Constitution mandates that the president “take Care that the Laws be faithfully executed.”
Historically, presidents have occasionally taken advantage of statutory spending flexibilities or canceled a few small projects that even Congress usually agreed were no longer necessary (this limited flexibility was eventually blessed within the Antideficiency Act). Yet in 1973, President Richard Nixon attempted to impound billions of dollars of enacted clean water appropriations over the objection of Congress. In doing so, he declared, “The constitutional right for the President of the United States to impound funds ... is absolutely clear,” and therefore, “I will not spend money if the Congress overspends.”
The Supreme Court disagreed, unanimously, leading Justice Antonin Scalia to summarize decades later that: “President Nixon, the Mahatma Gandhi of all impounders, asserted at a press conference in 1973 that his ‘constitutional right’ to impound appropriated funds was ‘absolutely clear.’ … Our decision two years later in Train v. City of New York, 420 U. S. 35 (1975), proved him wrong.” Scalia’s words appeared in the Supreme Court’s 1998 decision striking down President Bill Clinton’s use of a line-item veto, which attempted to block certain portions of a spending bill in a manner that was also tantamount to impoundment.
Nixon should have listened to his own assistant attorney general (and future chief justice), William Rehnquist, who had advised him that the “existence of such a broad [impoundment] power is supported by neither reason nor precedent,” and thus “It is in our view extremely difficult to formulate a constitutional theory to justify a refusal by the President to comply with a congressional directive to spend.”
Nixon’s impoundment prompted not only the Supreme Court’s 9-0 decision in Train v. City of New York, but also Congress’ passage of the Congressional Budget and Impoundment Control Act of 1974. This law, ultimately signed by Nixon, sprinkled a statutory impoundment ban on top of the existing constitutional prohibition and codified a formal rescission process whereby the president can request that Congress vote to cancel an enacted expenditure before it is made.
Trump defies impoundment law.
Five decades later, the Trump administration claims that the Constitution guarantees its right to impoundment, and that Congress’ 1974 statutory ban was unconstitutional. Campaigning last year, Trump pledged to “use the president’s long-recognized Impoundment Power to squeeze the bloated federal bureaucracy for massive savings” and to “restore executive branch impoundment authority to cut waste, stop inflation, and crush the deep state.” On Inauguration Day this year, he signed an executive order to “immediately pause the disbursement of funds appropriated through the Inflation Reduction Act of 2022 (Public Law 117-169) or the Infrastructure Investment and Jobs Act (Public Law 117-58).”
DOGE director Elon Musk publicly pledged to ignore impoundment restrictions, and immediately began unilaterally cancelling foreign aid, public health, and other funding that had been appropriated and signed into law just months earlier. (Trump’s occasional victories in resulting lawsuit have largely rested not on impoundment’s ultimate constitutionality, but rather on questions of who has standing to file suit against impoundment or whether the funding may be paused while the lawsuits are proceeding.) The White House also illegally took down a publicly available apportionment database to hide its additional impoundments from Congress and the American people. A federal court recently required that the database return online, which revealed the additional impoundments.