Executive Power Play: Trump and the Return of Impoundment

            Within the deluge of policies coming out of the second Trump administration, impoundment has resurfaced as a battleground between legislative and executive power. Impoundment is a practice in which the President can refuse to spend federal funds appropriated by Congress. Those who support the restoration of this practice see it as a reinstatement of a constitutional right vested in the office of the President. Opponents argue it shifts the power of the purse away from Congress and toward the executive branch. While it is not President Trump’s first attempt to put the theory into practice, the organized and fervent push for this power is unique to his second term in office.

            Impoundment is closely tied to unitary executive theory, a conservative legal theory that cites Article II, Section I of the Constitution to place executive powers upon the President. Many of the actions taken by President Trump since January 20 are designed to re-center executive power. Most notably, Elon Musk and the Department of Government Efficiency (DOGE) have been tasked with decreasing executive agencies’ size and relative power, which have benefited from the sharing of power across the executive bureaucracy. Musk has called executive agencies “the unelected fourth branch of government.” Eliminating or shrinking agencies shifts the authority enjoyed by the executive bureaucracy back to the office of the President. The reinstatement of impoundment would achieve the same goal — this time, however, pulling power from Congress, an elected branch of government.

            Article I of the Constitution grants the “power of the purse” to Congress. Framed in the negative, the Constitution states, “No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law,” which has been interpreted as a check on the executive branch, preventing the expenditure of funds not appropriated by Congress. This negative framing of the appropriations clause is where proponents of impoundment claim the right of impoundment stems. If the clause only addresses the upper bound on expenditures, then the President can determine the lower bound.

            The argued basis for impoundment doesn’t just lie in the negative framing of the appropriations clause, but also in the enumerated powers granted to the President in Article II of the Constitution. Mark Paoletta and Daniel Shapiro of the Center for Renewing America point to the Executive Vesting Clause, Take Care Clause, Commander in Chief Clause, and Foreign Affairs Power and Reception Clauses as the basis for the legitimacy of Presidential impoundment power. Taken collectively, these clauses form an argument that for the President to execute his role as executive faithfully, he must retain the ability to impound funds.

            One argument is that if an appropriation were to violate the Constitution, it would be the President’s duty to impound it. Another states that if the intent of a congressional appropriation can be met without spending the total amount allocated, the President should do so under the budget. Paoletta and Shapiro provide the example of defense overspending as one case in which a President can and should impound funds. They point to the example of President Harry Truman impounding funds for 10 whole Air Force groups, in which “the need to maintain a balance between national security and a sound economy” and “the President’s authority as Commander-in-Chief” legitimized the action.

            Other points made by Paoletta and Shapiro in favor of impoundment point to ensuring the economy benefits the American people — cases where impoundment might aid a President in negotiating as Chief Diplomat — and returning to the argument that the appropriations clause is a ceiling, but not a floor. Much of this is in line with the Trump administration’s claims that inefficient bureaucracy has led to overspending at the expense of the American taxpayer. At the same time, the administration argues that to fix this, the executive branch should have more power in deciding what does and does not deserve funding.

The Impoundment Control Act and the Court’s Opinions

            Before the Impoundment Control Act of 1974, presidential impoundment was generally permissible because executive impoundment actions often aligned with congressional intent. Under the Nixon administration, this status quo was disrupted. Congress viewed President Nixon’s use of impoundment as executive overreach when he withheld funds for programs that did not align with his goals. In response, Congress passed the Impoundment Control Act (ICA) to curb executive overreach. The ICA created rules and processes for Presidents to follow if they desired to decrease, delay, or eliminate funds appropriated by Congress. This effectively eliminated the President’s ability to withhold funds, even when appropriations lacked a mandatory expenditure clause. The Government Accountability Office was created as an enforcement mechanism, with the Comptroller General overseeing the office and monitoring Presidential impoundment. Paoletta and Shapiro argue that because the Comptroller is a legislative officer, they do not have the executive power that the role exercises in its oversight ability. Despite this gray area, the Comptroller and the GAO have maintained their role in ensuring Presidential compliance regarding congressional appropriations.

            Proponents of impoundment argue that the ICA and the role of the Comptroller are unconstitutional, and their elimination would return the federal landscape to a state in which the President has final authority over releasing or withholding funds. Even without the ICA, however, the argument for impoundment runs into trouble when expenditure is mandatory. Zach Price from the Yale Journal on Regulation notes that due to the Take Care clause, the President must faithfully execute mandatory appropriations statutes, as they are laws. The ICA serves a crucial role in ensuring that the President does not simply impound funds because they do not like the program they are allocated for, regardless of whether or not mandatory language is involved.

            The Supreme Court has yet to address the question of Presidential impoundment authority specifically, and it is unclear whether or not the current Supreme Court will take a case to rule broadly on the issue. The Supreme Court will likely continue to bring cases tangentially related to impoundment and provide narrow rulings on specific cases regarding withholding appropriated funds, such as Kendall v. United States ex Rell. In Stokes, Decatur v. Paulding, and Train v. City of New York, the Supreme Court acknowledged individual instances where Congress could assign ministerial duties to executive officers and denied the executive’s ability to impound funds. While this was the case in each ruling, the rulings remained limited.

            Clinton v. New York, the Supreme Court case in which the Line-Item Veto Act of 1996 was ruled unconstitutional, provides further context for the impoundment conversation. In that case, the Supreme Court ruled that legislation passed by Congress must be signed or vetoed. Line-item vetoes gave the President unchecked authority to amend the text of legislation, which the Supreme Court said violated the Presentment Clause. The Court noted, however, that the unconstitutionality of the Line-Item Veto Act was not due to the President’s ability to withhold funds, but due to the Line-Item Veto granting the President the ability to remove text from a bill. The Line Item Veto, in essence, allowed the President to create a new law that neither the House nor the Senate had passed. While the court declared the Line-Item Veto itself was unconstitutional, it once again danced around directly addressing the topic of impoundment.

What comes next?

            As the Trump administration works to undo the ICA, it will be up to the courts to decide if impoundment rules are subject to change. Historically, the Supreme Court has only ruled against the executive in specific cases. As the world waits to see which cases make their way to the Supreme Court’s docket, each side of the impoundment issue will hope for favorable instances for them to arrive first. Proponents of impoundment will hope for cases in which the President’s other roles as executive are hampered without the ability to impound funds. Opponents should push for instances in which the impoundment of funds only stems from political disagreement. Regardless, the Supreme Court will have its hands full if it commits to addressing the issue of impoundment comprehensively.

            The debate over impoundment highlights the perpetual struggle for power between the legislative and executive branches. The discourse permeates political dialogue and has been present in the judiciary since the mid-19th Century. If the reinvigorated effort to re-establish impoundment succeeds, the balance between Congress and the President will shift again. The power of the purse will shift from Congress to the White House, significantly increasing the power of the President. Whoever sits in the Oval Office can withhold funds from states and districts whose representatives are deemed to have conflicting interests. This could influence any number of policy issues, ranging from judicial nominations, foreign policy initiatives, Medicaid funding, and countless others. Only time will tell how or when this shift will occur, and it will unlikely be resolved anytime soon. To understand where the path may lead, it will be critical for both voters and Congress to track rulings from cases regarding federal funding, and more importantly, which might make their way to the highest court in the land.