In Roll Call, Michael Macagnone: Trump risks legal clashes in plans to not spend appropriations. From the introduction:
The incoming Trump administration plan to slash federal spending would have to overcome decades of court decisions and likely face a Supreme Court showdown, experts say, a legal headwind highlighted by President-elect Donald Trump’s choice of deputy director for the Office of Management and Budget.
Trump and allies, including OMB director pick Russ Vought and external advisors Elon Musk and Vivek Ramaswamy, have argued the president can unilaterally choose not to spend funds appropriated by Congress — a process known as impoundment.
A 1974 law called the Impoundment Control Act mandates that presidents spend funds appropriated by Congress. A report published by the Vought-led Center for Renewing America argued that the appropriations clause only put a “ceiling” on federal funding and said the 1974 law was an “unprecedented break” with the nation’s history.
The report said that “for much of the Nation’s history, such a congressional power was so beyond the realm of constitutional permissibility that it was almost never even asserted.”
Musk and Ramaswamy, tapped to lead the so-called Department of Government Efficiency, argued in a Wall Street Journal op-ed that the 1974 law is unconstitutional and “we believe the current Supreme Court would likely side with him on this question.”
And Trump in a campaign video last year said he intends to use the “long-recognized impoundment power to squeeze the bloated federal bureaucracy for massive savings.”
For decades courts have ruled that presidents cannot ignore Congress’ power to appropriate funds and decide on their own not to spend them, experts said.
Nicholas Bagley, a law professor at the University of Michigan, said that Supreme Court decisions dating back as far as 1838 underline the president’s inability to unilaterally refuse to spend the money Congress appropriated.
On X, Mark Paoletta has a
response, including:
Presidents have impounded billions of dollars of funds, EVEN with appropriations language that MANDATED that it be spent on certain projects. For example, in 1896, President Cleveland’s Attorney General, Judson Harmon, issued an opinion stating in response to a question about whether appropriations language stating that funds “shall be expended” on certain a project was mandatory, wrote: “The direction to expend the sums mentioned in the proviso is, in my opinion, not mandatory to the extent that you are bound to expend the full amount if the work can be done for less.” This simply reflected the longstanding view that the Executive was not bound to expend the full amount of an appropriation, even if the appropriation used mandatory language.
…
Why are we taking on this 1974 law? Because it is one of the main reasons federal spending is out of control. This law makes a mockery of the constitutional order and by purporting to make it illegal for a President to spend less than the full amount appropriated even if he can accomplish a project for less money. Under the ICA, if Congress appropriates $100 million to build a tank, and the President and his team work hard to save the taxpayer money by building it for $75 million, he is violating the ICA if he does not spend the remaining $25 million The ICA made an appropriation a FLOOR on spending rather than a CEILING. This turned our history of appropriations and spending on its head. The ICA has been a Congressional power grab and unconstitutional invasion into the President’s ability to carry out his executive functions.
I'm not sure what I think about this issue (except that from an originalist perspective I'm not that impressed by what Cleveland's attorney general thought, or even a case from 1838). I agree that in the ordinary course an appropriation would be read as permissive rather than mandatory, and perhaps even that it should be read as permissive unless its mandatory nature is entirely clear. But the Impoundment Control Act is another matter, because it is clear, and it seems plausibly within Congress' power over spending. I take it that the counterargument is that the Act infringes the President's power to execute the law, but I'm not sure that the Constitution can be read to give the President a constitutional discretion in the matter. (And as far as I know there isn't anything from the founding era that's helpful.) This might be a situation where originalism doesn't provide an answer.
I do think the Impoundment Control Act is really bad policy. But that doesn't make it unconstitutional, at least not on this blog.
UPDATE: Devin Watkins comments:
My view is that there are applications of the Impoundment Control Act that must be unconstitutional, but not necessarily all applications.
A valid application is that the Impoundment Control Act can obligate the government to provide money to someone outside of government. Nixon tried to impound some of these spending provisions, and I think Congress can create a right to receive such funds that it appropriates.
However, when money is allocated to be spent on actions by executive branch officials, I don't think Congress can require the Executive to spend the money in the manner that Congress wants. As an extreme example, let's say Congress allocated $1 billion for the prosecution of person X, or group Y. I think the President's executive authority over his subordinates in the exercise of executive power in prosecutorial discretion would permit him to refuse to spend the money for that purpose regardless of the Impoundment Control Act. Similarly, when Congress allocates money to an executive branch agency to spend on executive branch officials doing some activities/program, the President could exercise his executive power to refuse to spend that money.
Saying that the President must faithfully execute the law and the Impoundment Control Act is the law doesn't really resolve the issue, because if the President's executive authority makes that application of the Impoundment Control Act unconstitutional then it isn't the law.
Posted at 6:06 AM