Every American schoolkid learns how the federal government works. Congress, as the legislative branch, writes the laws and sets the budget. The president enforces those laws unless he vetoes them and spends whatever money Congress authorizes. This is fairly elementary stuff.
President-elect Donald Trump wants to do things differently. He and his allies want the incoming administration to be able to block lawfully appropriated funds by Congress whenever they feel like it, a tactic known as impoundment. Earlier this year, Trump promised to revive it from the graveyard of constitutional dubiousness. “We’re going to bring back presidential impoundment authority, which nobody knows what it is,” he told a crowd of supporters at a campaign rally. “But it allows the president to go out and cut things and save a fortune for our country. Things that make no sense.”
While “nobody” might be a stretch, Trump is correct that most people are probably unfamiliar with “presidential impoundment authority.” There are three good reasons for this. The first one is that impoundment is unconstitutional. The Constitution makes clear that the power of the purse—the federal government’s ability to appropriate and budget funds—belongs solely to Congress.
There is some wiggle room on this in practice. Sometimes Congress gives the president some discretion over how funds can be spent for certain programs. When it comes to foreign policy, lawmakers have sometimes given presidents special tools to quickly disburse foreign aid or spend on military assistance to American allies, recognizing that Congress may not be able to convene and act fast enough in some cases. But these discretionary measures—which lawmakers themselves set—are all downstream of Congress’s ultimate control over how federal funds are spent.
Presidents have sometimes claimed that there is an unspoken constitutional power of impoundment. (More on that claim momentarily.) But the Supreme Court has never endorsed that theory, and its rulings on Congress’s power over the federal budget all point in the opposite direction. In the 1980s and 1990s, presidents claimed that they could cut unnecessary federal spending if they had a line-item veto, which would allow them to block funds to individual projects and appropriations when signing a budget into law while leaving the rest of it intact.
While many governors have a line-item veto, presidents did not have one until Congress passed the Line-Item Veto Act of 1996. It was quickly challenged in federal court and then unanimously struck down by the Supreme Court in the 1998 case Clinton v. City of New York. The justices held that the Constitution only allows the president to sign legislation or veto it, not to amend it before it becomes law.
“If the Line Item Veto Act were valid, it would authorize the President to create a different law—one whose text was not voted on by either House of Congress or presented to the President for signature,” Justice John Paul Stevens wrote for the court, referring to the 1997 budget. “Something that might be known as ‘Public Law 105-33 as modified by the President’ may or may not be desirable, but it is surely not a document that may ‘become a law’ pursuant to the procedures designed by the Framers of Article I, Section 7, of the Constitution.”
Impoundment is even more extreme than a line-item veto because Trump, unlike Clinton, would be acting without congressional authorization or widespread public support. Indeed, Trump would have to break the law to do it. That brings us to the second reason why “nobody” has heard of impoundment: It is illegal.
Trump is not the first president to claim that he could refuse to spend funds that were lawfully appropriated by Congress. In the early 1970s, Richard Nixon began to impound funds at an unprecedented rate—more than $53 billion during his five years in office. He defended this power by citing other instances of presidents refusing to spend on certain programs. That claim wasn’t wholly without merit: His predecessor Lyndon B. Johnson also impounded tens of billions of funds, and Nixon’s defenders often cited an instance where Thomas Jefferson declined to spend $50,000 on gunboats for the Mississippi River that Congress had appropriated.
But Congress chafed at Nixon’s efforts to override their policy goals and considered impeaching him for it during the Watergate crisis. The courts also rejected Nixon’s tactics. In the 1975 case Train v. City of New York, the Supreme Court unanimously rejected Nixon’s impoundment efforts on statutory grounds. Congress had passed a water pollution law in 1972 that appropriated $11 billion in funds for a federal program that provided financial assistance to municipal water systems. In response, Nixon directed the Environmental Protection Agency to only spend $5 billion of the funds, citing the need to fight rising inflation.
New York City, which desperately needed the funds to upgrade its dilapidated systems, sued the agency to challenge the impoundment. After Nixon resigned over the Watergate crisis midway through the litigation, the Ford administration claimed that the EPA had only delayed the funds and would pay them all out eventually. The Supreme Court found that argument, as well as the more expansive one that the Nixon administration had made in the lower courts, hard to stomach.
“As conceived and passed in both Houses, the legislation was intended to provide a firm commitment of substantial sums within a relatively limited period of time in an effort to achieve an early solution of what was deemed an urgent problem,” Justice Byron White wrote for the court. “We cannot believe that Congress, at the last minute, scuttled the entire effort by providing the Executive with the seemingly limitless power to withhold funds from allotment and obligation.”
To settle the impoundment issue, Congress passed the Congressional Budget and Impoundment Act of 1974. It created a specific mechanism for rescinding funds where presidents can formally request it and both chambers of Congress have 45 days to each approve it. If Congress does not act, the money stays appropriated. Absent that procedure, presidents can’t lawfully impound congressionally authorized funds.
That may not stop Trump from trying it again. That brings us to the third reason why “nobody” has heard of impoundment: It is dictatorial and un-American. Speaker of the House Carl Albert, who sparred with Nixon over impoundments in the early 1970s, argued that the dispute went beyond the usual spats between Capitol Hill and the White House. Congress’s power of the purse, he warned, was “the birthright of an independent and responsible legislature” and one of the Founders’ goals during the Revolution.
“Take away this power, and Congress is nothing more than a debating society,” Albert wrote in a 1973 editorial in The New York Times. “The votes the people cast for their representatives would become meaningless acts. Unchecked by this fundamental legislative power, any President would have the autocratic prerogative to do and spend as he pleases.”
This reasoning may explain why Trump supports it. While the president-elect does not formally take power until January 20, he is making clear that he plans to rule autocratically once he does. He successfully persuaded the Supreme Court this year to grant him sweeping immunity from future criminal prosecutions. He has proposed forcing the Senate to adjourn so he can try to appoint a variety of unqualified and unsuitable officials without the chamber’s “advice and consent,” as the Constitution demands. His advisers and allies hope to purge the federal civil service, slash the budget, and dismantle entire agencies without passing a single law. Undermining the power of the purse would move the nation perilously close to the royal dictatorship that the Founders consciously sought to prevent.
