President-elect Donald Trump and SpaceX founder Elon Musk watch the launch of a test flight of the SpaceX Starship rocket on Nov. 19 in Brownsville, Texas. Musk has been tapped to help Trump find ways to cut government spending.
Brandon Bell/Getty Images
President-elect Donald Trump is promising to slash through what he says is significant waste in the American government.
One way he plans to do this is through impoundment. That’s when a president effectively holds back money that Congress has approved for a specific purpose.
That plan is raising alarm bells across Washington because it would challenge the traditional separation of powers between the executive and legislative branches of government.
“I am cautiously optimistic. But I’m also worried,” said Eloise Pasachoff, a Georgetown Law professor who has written about the issue.
There’s a law aimed at stopping impoundment
Congress has the power of the purse. After funding disputes with President Richard Nixon, Congress passed a law in 1974 called the Impoundment Control Act that requires presidents to spend money as Congress directs.
Trump has said he plans to challenge that law. “We’re going to bring back presidential impoundment authority, which nobody knows what it is,” Trump said at a rally this spring. “But it allows the president to go out and cut things and save a fortune for our country. Things that make no sense.”
Pasachoff said the law is a key check on presidential power. “This is the way the system is supposed to work,” she said. “I believe in the rule of law. I believe in government institutions doing what they’re set up to do. … I’m also worried because these are complicated times.”
In this Oct. 9, 2019, photo, President Donald Trump listens while the acting director of the Office of Management and Budget, Russell Vought, speaks about federal regulations.
Brendan Smialowski/AFP
Trump says the impoundment law is unconstitutional
Trump has argued the law is unconstitutional, and his allies have drafted plans to expand his presidential powers.
One of those allies is Russ Vought, Trump’s nominee to lead the Office of Management and Budget. Vought held the job in Trump’s first term too.
“I believe that the loss of impoundment authority — which 200 years of presidents enjoyed — was the original sin in eliminating the ability from a branch on branch to control spending,” Vought said this year in an interview on Fox Business. “And we’re going to need to bring that back.”
Vought is not the only one in Trump’s orbit who wants to target the law. So do Elon Musk and Vivek Ramaswamy, whom Trump put in charge of an effort called the Department of Government Efficiency — or DOGE.
If Musk recommends closing a specific agency or Ramaswamy suggests firing a percentage of the federal workforce, they would not be able to do that without congressional approval, said Andrew Rudalevige, a professor who studies the presidency at Bowdoin College.
“To the extent that you could try to implement it unilaterally, you would need some kind of authority to impound — to just not do what Congress has said you’re supposed to do,” he said. “It’ll lead pretty directly to constitutional conflict, but that, I think, is the only way that you could impose unilaterally presidential wishes in this area.”
What will the courts say about impoundment?
Trump tested his impoundment authorityin his first term, when he briefly blocked aid to Ukraine as he pressured Ukrainian President Volodymyr Zelenskyy to open an investigation of Joe Biden and his family.
Congress objected, and Trump was later impeached over related issues. But the impoundment matter was not litigated in the courts.
This time, the debate is almost certainly headed to the Supreme Court, said Josh Blackman, a law professor at South Texas College of Law Houston.
Blackman, who has filed briefs with the Supreme Court supporting Trump, says the court has taken a robust view of presidential power.
He cited the court’s decisions on the Trump immunity case and a president’s power to remove officials.
“And maybe the most relevant data point is that Chief Justice John Roberts worked in the Reagan White House,” Blackman said. “I think he’d be very sympathetic to the arguments that were so influential in his earlier career. So I think Trump might actually have a shot at this one.”
