Think about, for a second, a president who would not wish to spend cash. Given the final a number of many years of presidential historical past, this may occasionally sound fanciful. However assume {that a} president has efficiently campaigned on spending much less cash, and even perhaps balancing the federal funds, after which, as soon as in workplace, has determined to attempt to perform that program. What would such a president do?
If a president needs the federal authorities to spend much less cash, then someplace, in some way, at a while, somebody with applicable authority wants to truly cease spending cash.
That is much more tough than it sounds.
It isn’t simply that in Washington, plans to spend extra, however lower than in any other case anticipated, are ceaselessly denounced as debilitating cuts. Neither is it merely that bureaucrats stamp their toes and leak tales of supposedly draconian spending reductions to pleasant media retailers. Neither is it even that the voting public, in its mass incoherence, appears to desire a mixture of excessive spending and low taxes—a luxurious authorities way of life that it actually can not afford.
There may be an underrated obstacle to spending much less: the Structure itself, a minimum of for those who’re the president. The Structure grants Congress the only real energy of the purse. The manager department is tasked with faithfully executing the legal guidelines Congress passes. If Congress passes a legislation saying soar, it is the president’s job to leap. And if Congress passes a legislation that claims spend, it is the president’s job to spend.
This has turned out to be an issue for President Donald Trump, who arrange a Division of Authorities Effectivity, or DOGE, that operates by means of the auspices of the U.S. Digital Service. Trump has described DOGE as run by the billionaire businessman Elon Musk, though it is by no means been fairly clear whether or not he is formally in cost. It has pursued a wide range of cuts and delays to executive-branch spending—suspending varied grants and dismissing, in line with some estimates, hundreds of employees and contractors. A part of Musk’s technique has been to dig into the bowels of the federal fee techniques themselves, the advanced, usually outdated pc techniques that pay out huge sums day by day. At occasions, Musk has appeared to be pursuing a purpose of spending much less by immediately stopping the federal government techniques that pay out cash. If nothing else, it is a novel technique.
One authorized query is whether or not Musk, whose official standing stays murky, has the authority to make these cuts. He seems to have the backing of the president, who in concept has authority over the workings of the manager department—in concept, as a result of one other, larger authorized query is whether or not even the president has the authority to not spend cash if it has been approved and appropriated by Congress.
The observe of withholding or in any other case declining to spend duly approved funds is called impoundment, and it has an extended and sophisticated historical past. Courts have repeatedly mentioned the president doesn’t have authority to do that. In 1974, after years of combating with President Richard Nixon over the observe, Congress handed the Congressional Funds and Impoundment Management Act with veto-proof majorities, and Nixon signed it into legislation. This legislation not solely created the trendy funds course of; it strictly prohibited unilateral govt impoundment. And that may appear to be that.
However Trump is not a president who at all times abides by historic norms or authorized strictures.
In his first time period, he violated the Impoundment Management Act on one notable event, in line with one authorities watchdog. In his second time period, he has as soon as once more tapped a person named Russ Vought to run the Workplace of Administration and Funds (OMB). Vought is a self-described radical with roots within the Tea Social gathering motion who views funds slicing as a key a part of the tradition struggle. He has additionally instructed Congress, on the report, that each he and Trump view the Impoundment Management Act as an unconstitutional limitation on govt energy.
Vought’s theories are effectively exterior the mainstream, and even many ardent supporters of restricted authorities disagree with him on that query, viewing Vought as far too prepared to bend, or outright ignore, the rule of legislation. However much more than Musk, he’s more likely to be on the heart of authorized and sensible battles about slicing the scale and scope of the federal authorities. As a result of what Vought essentially believes is that the one solution to lower authorities spending and convey the paperwork to heel is to radically empower the manager department, giving the president energy that the Structure reserves for Congress alone.
Vought’s concepts symbolize a deep and tough problem for many who wish to lower spending and test govt authority, the classical liberals and libertarians who consider in restricted authorities, a constitutionally constrained govt, and the rule of legislation. As a result of if Vought is true, you may’t have all three.
Nixon’s Nixes
The roots of the dispute over impoundment return to 1972, when Congress handed the Federal Water Air pollution Management Act amendments, a collection of updates and expenditures that turned higher referred to as the Clear Water Act. Nixon believed the $24 billion legislation was too costly: His greatest headache at that time was hovering inflation, and tens of billions in new federal spending appeared more likely to make that drawback worse.
Nixon vetoed the invoice. Congress then mustered the two-thirds majority vote to override the veto. Nixon then merely refused to spend a big chunk of the funds—about $9 billion focused at constructing out new sewage remedy infrastructure. This was arguably Nixon’s most flagrant act of fiscal defiance towards Congress, and it arrange a authorized showdown over impoundment.
Relying on who you ask and the way you outline it, impoundment is an previous observe. Within the early 1800s, President Thomas Jefferson determined to not spend $50,000 that had been appropriated on a fleet of recent warships to combat on the Mississippi River, the place naval battle had damaged out. In that exact case, not spending cash was straightforward: Jefferson merely notified Congress that he wasn’t going to spend the cash attributable to a “favorable and peaceful flip of affairs” which “rendered a direct execution of that legislation pointless.” Neither Congress nor the courts objected.
When Nixon tried to withhold spending on sewage remedy, the result was reasonably completely different.
A bunch of cities, together with New York, sued Nixon’s Environmental Safety Company, on the time headed by Russell Prepare, leading to a yearslong authorized battle over impoundment. Lastly, the case, Prepare v. Metropolis of New York, reached the Supreme Courtroom, which in 1975 dominated that Nixon’s refusal to spend funds had been unlawful. Nixon’s constitutional obligation as president was to take care to execute the legal guidelines faithfully. He did not have the authority to not spend cash as directed by legal guidelines handed by Congress.
Congress, in the meantime, had already taken issues into its personal palms. The prior yr, Congress had handed the Congressional Funds and Impoundment Management Act.
This legislation was designed not simply to streamline the federal funds course of however to say the legislative department’s constitutional prerogatives by explicitly prohibiting impoundment. The Clear Water Act impoundment was Nixon’s most vital try and refuse spending, however removed from his solely effort.
“The tradition then was, the president has an excessive amount of energy,” longtime Texas Republican and former Methods and Means Chairman Invoice Archer defined a decade in the past when requested about how the prevailing temper of the period knowledgeable the creation of the Impoundment Management Act. “We do not just like the president. The president is abusing his energy….The thought was, we will take energy away from the president, and we will represent it throughout the Congress.” Distracted by the Watergate scandal and beneath strain to make concessions to Congress, Nixon signed the act a month earlier than he resigned.
After that, the matter was roughly settled till the Nineteen Nineties, when the prospect of impoundment as soon as once more returned.
In 1996 Congress handed, and President Invoice Clinton signed, the Line Merchandise Veto Act. The legislation allowed the president, after signing an appropriations or tax invoice, to “cancel” particular spending objects or restricted tax advantages inside 5 days, topic to a fast-track congressional disapproval vote. This was considered as a narrower different to impoundment. Slightly than merely not spending funds, the president would formally cancel the supply. Clinton actively used the line-item veto 82 occasions in 1997, focusing on expenditures he deemed pointless.
Many of those cancellations went unchallenged, however not all. That led to a different courtroom case, Clinton v. Metropolis of New York.
The town of New York was miffed that it had been denied funds by a president who had declined to spend congressionally appropriated cash. Particularly, Clinton had canceled a provision that may have offered the state’s hospitals with an estimated $2.6 billion. (Notably, the Medicaid tax funding was a provision of the Balanced Funds Act of 1997; this got here at a time when there was bipartisan want to scale back spending in an effort to preserve deficits in test.)
In a 1998 resolution, the Courtroom held 6–3 that the line-item veto violated the Structure’s Presentment Clause. By empowering the president to unilaterally change a legislation after it had been duly enacted, the justices reasoned, the legislation had upset the steadiness of powers. As soon as a invoice turns into legislation, the president’s solely choices are to implement it or search its repeal. He can not unmake the legislation on his personal, even with prior congressional permission.
The Courtroom’s objection to the line-item veto stemmed from basically the identical because the philosophy behind the Impoundment Management Act and the Prepare resolution: The president can veto a legislation in its entirety reasonably than signal it, however he can not merely carve away at a legislation’s provisions as soon as it is in power.
Making It Ukraine
The Congressional Funds Management and Impoundment Act didn’t totally work as supposed. One justification for the legislation had been to rein in unaccountable spending, but funds deficits ballooned within the Nineteen Eighties. The annual funds course of it laid out was adopted solely intermittently at first, and by the late ’90s it had been all however deserted. The nonpartisan Congressional Funds Workplace produced competent, typically revered work, nevertheless it was usually dragged into bitter partisan disputes.
However in a single respect it did work. No president after Nixon was capable of unilaterally impound funds. That’s, till Donald Trump.
In summer season 2019, at Trump’s course, the OMB withheld roughly $214 million that Congress had appropriated for Ukraine Safety Help—cash tagged for weapons and coaching funds to help in its protection towards a Russian invasion. The maintain was executed by means of particular footnotes on federal spending schedules instructing that the Ukraine assist cash couldn’t be spent.
This act developed right into a sprawling scandal involving Trump and Ukrainian chief Volodymyr Zelenskyy, during which a whistleblower alleged that the “President of america is utilizing the ability of his workplace to solicit interference from a international nation within the 2020 U.S. election”—by, the grievance mentioned, “pressuring a international nation to research one of many President’s essential home political rivals.” At coronary heart, the cost was that Trump was withholding federal assist in an effort to acquire a quid professional quo from a international authorities.
A lot of the consideration across the scandal targeted on the extra salacious cost that Trump was basically attempting to bribe or extort a international chief by manipulating the federal purse strings. Beneath strain, Trump launched the funds. However his preliminary refusal to spend cash duly approved and appropriated by Congress raised a core constitutional query as effectively: Was this an act of impoundment?
In 2020, the Authorities Accountability Workplace (GAO) concluded that “the Workplace of Administration and Funds violated the legislation” by withholding the Ukraine funds. “Trustworthy execution of the legislation doesn’t allow the President to substitute his personal coverage priorities for those who Congress has enacted into legislation,” the auditors wrote. “OMB withheld funds for a coverage cause, which isn’t permitted beneath the Impoundment Management Act.” Citing the Clinton-era ruling on the line-item veto, the GAO warned that to withhold funds selectively was successfully to “amend” the legislation by govt fiat, which is prohibited beneath the Structure.
From Nixon to Clinton to Trump, the authorized consensus remained clear. However there have been some who disagreed, and considered one of them was Russell T. Vought.
Vought Your Conscience
Russ Vought started his tenure within the first Trump administration as deputy director of OMB beneath the directorship of Mick Mulvaney. Like Mulvaney, Vought was a creature of the Tea Social gathering motion that sprung up beneath President Barack Obama. The Tea Social gathering motion was billed as a backlash towards extreme authorities spending, a place sophisticated by the best way that many Tea Social gathering activists appeared to wish to shield spending on the old-age entitlements which might be the largest contributors to long-term debt. However a minimum of in line with lots of its leaders, its overarching purpose was to chop the federal authorities right down to dimension.
Within the time earlier than Trump, the Tea Social gathering’s affect could possibly be seen at organizations just like the Republican Research Committee (RSC), a coalition of conservative lawmakers within the Home, and The Heritage Basis, a conservative assume tank that in 2010 based Heritage Motion to pursue extra direct advocacy and lobbying work. Vought labored for each, as vice chairman of Heritage Motion and as funds director for the RSC. He was each a Tea Social gathering true believer and a funds wonk. Later, in the course of the hole between the 2 Trump administrations, he arrange a company that attempted to mix Tea Social gathering–period government-cutting zeal and assume tank fiscal wonkery with the brand new wave of Trumpified conservatism.
Based in 2021, Vought’s Middle for Renewing America targeted on the interior workings of the federal authorities—particularly, the staffing of govt department businesses, and the sprawling system of barely accountable spending that makes up their budgets. The group’s worldview mixed the Trump motion’s cultural panic with the Tea Partiers’ government-slashing zeal.
In a 2022 essay for The American Thoughts, Vought argued that America is in a “post-constitutional second,” a “new regime” that’s “extra like an unwritten structure which operates primarily based on precedents.” This “new Structure,” he wrote, was the product of a “slow-moving revolution” that in impact remodeled America into a brand new nation. The essay namechecked a slew of businesses and workplaces disfavored by the MAGA proper—the FBI, the Division of Justice, the Facilities for Illness Management and Prevention—and warned of an empowered skilled class utilizing their unelected positions to exert management over American life. “No constitutional amendments have been handed to enact this, however new authorized paradigms have been launched—a ‘dwelling structure,’ unbiased businesses, everlasting, ‘skilled’ civil servants—which have modified the underlying separation of powers on the core of our system.”
Vought’s answer: The American proper ought to undertake “radical Constitutionalism” and “throw off the precedents and authorized paradigms which have wrongly developed during the last 200 years.” The presidency, he warned, has grow to be divorced from an govt department it would not actually management, and this advantages leftist malefactors. “The Left within the U.S. would not need an lively president with the ability to bend the manager department to the need of the American folks,” he wrote.
The core thought was that conservatives should embrace a view of the Structure that radically empowers the manager. So it is no shock that Vought considers the Impoundment Management Act unconstitutional.
He mentioned this explicitly throughout his 2025 affirmation listening to to run the OMB. When requested about impoundment, and whether or not the withholding of Ukraine funds throughout Trump’s first time period may be a “harbinger of what’s to come back these subsequent 4 years,”Vought responded succinctly.
“The president ran on the notion that the Impoundment Management Act is unconstitutional,” he mentioned in response to a query from Sen. Patty Murray (D–Wash.). “I agree with that.”
Previous to his affirmation listening to, Murray famous, Vought had responded to written questions on impoundment by saying he’d comply with the steering of the OMB’s incoming counsel, Mark Paoletta.
Like Vought, Paoletta is a veteran of the White Home funds workplace from Trump’s first time period. He additionally served as a fellow on the Middle for Renewing America, the place he wrote a variety of articles arguing that the impoundment energy was completely in keeping with the Structure and that the Impoundment Management Act was overreach.
Paoletta’s argument rests partly on the Structure’s “govt vesting” clause, which vests the presidency with all govt energy, which in his studying would come with impoundment. He additionally provides a twist on the “take care” clause. Sometimes, the Structure’s insistence that the president is to “take Care that the Legal guidelines be faithfully executed” is known to imply that the president should comply with legal guidelines handed by Congress to the letter. However Paoletta sees it as a solution to give the president some flexibility: He should have some discretion to spend fastidiously—which could imply declining to spend the complete quantity of an appropriation.
A fair shorter model of Paoletta’s view got here in a 2024 put up on X: “Impound, Child, Impound!” Impoundment, he wrote, was “an amazing device to chop wasteful spending.”
Simple Peasy?
Within the view of Vought and Paoletta, then—which is to say, within the view of the Trump administration’s budgetary authorities—if a president needed to not spend cash, it will not be tough in any respect. It will be straightforward. The president, or his brokers, might merely not spend it.
That may most likely set off a courtroom problem, however that may be a part of the purpose. In January, The Washington Put up reported {that a} slide deck had been circulating amongst White Home funds officers making the case for impoundment. The deck, in line with the Put up‘s description, “suggests Trump officers might search to set off a courtroom case that would declare that legislation unconstitutional, finally enabling Trump to scale back or get rid of whole funding classes on his personal.”
The White Home distanced itself from the presentation, denying that it was produced by any presidential appointee. Nevertheless it’s not laborious to sq. it with Vought’s clearly said outlook. He instructed Congress that he would comply with the legislation and his counsel’s interpretation of that legislation, and each he and his counsel consider the Impoundment Management Act is unconstitutional. He has additionally advocated a radical constitutionalism that may empower the manager department to carry its personal towards Congress, and he has hinted strongly that this would possibly imply defying the “precedents and authorized paradigms” of the present American order.
What would occur then? One chance is that the courts would rule towards impoundment, in line with many years of precedent and the mainstream of authorized thought. Trump would possibly adjust to a courtroom order. However he additionally may not. In any case, if, per Vought, the manager department should assert its energy and prerogatives towards encroachments from different branches, that may embrace the courts in addition to Congress. If that occurred, it will current a constitutional standoff, and arguably a constitutional disaster—and a violation of the rule of legislation.
One other chance, much less probably however not inconceivable, is that the courts would possibly grant the president some form of impoundment energy, maybe with limits. This could not end in a direct constitutional disaster. However it will give but extra energy to the manager department and weaken the separation of powers.
For many who favor smaller authorities, this may not sound like a horrible consequence. In any case, what might go improper with giving the president the ability to not spend cash? It is a honest query. A extra muscular govt impoundment energy would possibly make it potential for a president to chop wasteful or misguided spending, or trim the federal work power, decreasing the ability and price of the paperwork. It is laborious to think about a approach that it might end in a authorities that grows bigger, a minimum of when it comes to {dollars} spent and money owed owed.
However any coherent understanding of the American constitutional order, which reserves for Congress the ability to each write legal guidelines and spend cash, must acknowledge vital limits on such an influence.
Jefferson’s resolution to not spend cash on warships that had been now not mandatory can plausibly be understood as a call to be cautious with taxpayer funds. However the objection to Nixon’s impoundments was that he was declining to spend for coverage causes—that he was successfully ignoring the need of Congress, which had already overridden his veto, and substituting his personal coverage targets. What the courts present in each the Nixon dispute and the Clinton-era argument over the line-item veto was that to permit the president leeway to impound funds at his discretion was to permit the president not solely to usurp the congressional energy of the purse however to basically write legislation.
So whereas granting the president impoundment energy may not make the federal government bigger, it will virtually actually make the presidency extra highly effective and extra central to all types of questions associated to each international coverage and the financial system.
Take into account the extortion or bribery alleged within the Trump/Ukraine affair: The accusation was that Trump was withholding funds for private, political achieve. Giving the manager impoundment energy would make the president a private dispenser of a whole lot of billions in federal funds, that means these funds can be topic to his private whims.
One want solely have a look at how Trump has used or threatened to make use of his tariff authority to see the potential for abuse. In his first months in workplace, he hasn’t simply unilaterally imposed tariffs; he has raised the opportunity of handing out exemptions and delays to pliant enterprise leaders who cozy as much as the workplace and ask for particular remedy, resulting in a politicized financial system during which a single particular person picks winners and losers.
The identical can be true of a president who had the ability to unilaterally withhold federal funds. Removed from restoring the Structure’s steadiness of energy, this might tilt the American authorities much more towards a president-centric system the place the White Home occupant is extra like a king than an administrator tasked with executing the legislation.
However there’s an alternative choice, one which maintains the constitutional order and permits for presidentially pushed cuts and reductions to federal spending. Certainly, it is a mechanism contained throughout the Impoundment Management Act itself. It is known as rescission, and it permits the president to submit a proper discover proposing spending reductions to Congress for approval. Congress then has 45 days to approve the rescission, throughout which era the spending is frozen.
Rescission makes an attempt to resolve the issue of what a president is meant to do if he needs to not spend cash. He’s speculated to ask Congress, which beneath the Structure holds the ability of the purse. Rescission turns that into a proper, authorized, fast-track course of.
Trump is aware of this—or a minimum of his funds officers do. Throughout Trump’s first time period, Trump requested the most important rescission package deal ever granted beneath the Impoundment Management Act. In Could 2018, the Trump White Home despatched Congress a $15.4 billion greenback rescission package deal. The true dimension of the financial savings was significantly smaller—not more than about $3 billion, in line with Trump’s personal funds workplace, since a lot of the rescission involved funds that had lingered unspent. Finally, the Senate didn’t approve the proposal.
However the administration went by means of the legally required course of, making certain that Congress had closing say over issues of spending. The second Trump administration might accomplish that once more—and would possibly. In April, the New York Put up reported that the White Home was teeing up a rescission package deal that included $1 billion in cuts to public broadcasting and an $8.3 billion lower for the U.S. Company for Worldwide Improvement. Sen. Rand Paul (R–Ky.) pushed Trump and DOGE to assume larger. “I might like to see a $500 billion rescission package deal,” Paul instructed Motive‘s Eric Boehm in February.
For many who view the ever-expanding dimension of presidency as an issue, this can be an unsatisfying reply. It requires legislative motion, and Congress is way much less swift than an lively govt. However the constitutional order wasn’t designed to be swift or satisfying. Quite the opposite, it was designed to frustrate the will for swift, seemingly satisfying coverage change. The separation of powers was supposed to power cooperation and compromise between the branches, even when it is exhausting.
The Structure was additionally designed to frustrate unilateral authority and test govt energy particularly. The Founders had been all too conscious of the issues that come up when coverage depends upon the whims of kings. Restricted authorities depends as a lot on preserving the rule of legislation and the core constitutional order because it does on slicing applications and firing bureaucrats. Shortcutting the rule of legislation in an effort to obtain a short lived coverage victory isn’t price it.
What ought to a president who needs to not spend cash do? He ought to comply with the Structure, and which means involving Congress and deferring to its budgetary authority. So sure, it is tough for a president to say no to spend cash. However beneath the Structure, it ought to be.
This text initially appeared in print beneath the headline “What if the President Would not Wish to Spend Cash?.”
