Why Trump’s confusion about the Impoundment Control Act is a problem for him, for Congress and for everyday Americans
With the start of Donald Trump’s second term comes the resurgence of a familiar theme from the first Trump administration—the impoundment, or withholding, of funds—but with a new twist. This time, Trump and his allies are advancing the idea that the Impoundment Control Act (ICA), the law that gives the president limited authority to temporarily withhold congressionally approved funding, undermines a purported presidential “impoundment power.” But Trump’s antagonism toward the ICA is both unsupported and paradoxical. Trump’s assertions that the ICA somehow encroaches on a nonexistent executive impoundment authority warps the constitutional separation of powers between the legislative and executive branches. And the ICA, which facilitates Congress’s quick repeal of funding the president determines is no longer needed, should be welcomed by a president who claims to want to reduce federal spending.
As Trump and his allies talk about plans to cut the federal budget through actions like shutting down the Department of Education and firing hundreds of thousands of federal workers, Trump has championed plans to overturn the ICA, casting it as an enemy of a more efficient government. But the ICA presents no obstacle to Donald Trump’s promise to produce “massive savings,” as the law includes not one, but two ways for the administration to work with Congress to reduce government spending. First, the ICA allows the president to delay spending funds if the president reports the delay to Congress and the delay is authorized under the Act, which, among other reasons, permits deferrals if there are opportunities to achieve savings through greater efficiency. Or, if Trump determines that he does not need the full amount of money Congress has appropriated for a certain program, he can ask Congress to rescind the extra funds. After Trump sends such a request to Congress, each chamber can consider and pass a rescission bill under expedited—and for the Senate, filibuster-proof simple majority—procedures for the president’s signature.
Learn more about the Impoundment Control Act and read our primer on key terms.
Since the enactment of the ICA in 1974, presidents of both parties have taken advantage of the law’s processes for decreasing federal spending. Congress has rescinded millions of dollars of funding at the request of presidents across the political spectrum, and presidents have used the deferral procedures to delay spending for numerous programs, including those in the Treasury Department, the Department of Energy and the Department of State.
Given current Republican control of the presidency, House and Senate, these ICA procedures seem to provide a straightforward path to reduce federal spending in compliance with federal law. But while Trump has expressed support for using the similar, simple-majority reconciliation process for implementing policy proposals such as tax cuts that would increase the federal deficit, Trump has expressed no such support for the simple-majority rescission process for decreasing federal spending or the deferral process for achieving savings under the ICA. Instead, on the first day of his presidency Trump issued executive orders directing agencies to withhold congressionally appropriated funding for foreign aid, energy programs and sanctuary cities. And one week later, the president unilaterally “pause[d]” grants, loans, and other financial assistance, sparking a lawsuit by nonprofit organizations, public health leaders, and small businesses and fear and confusion from many recipients of federal funding. Why?
Maybe Trump does not want to use the ICA’s procedures because when he did so during his first administration, he could not get a simple majority of Congress to agree to get rid of funds for the programs he proposed for rescission, even though Republicans had unified control of the federal government. Maybe he fears that, again, members of this new Congress or their constituents will not agree that the programs he wants to cut are “wasteful.”
“Maybe Trump does not want to use the ICA’s procedures because when he did so during his first administration, he could not get a simple majority of Congress to agree to get rid of funds for the programs he proposed for rescission.”
Or perhaps Trump’s dissatisfaction with the ICA stems from the Government Accountability Office’s finding that Trump violated the law when he withheld bipartisan funding for security assistance to Ukraine, or his impeachment on that same basis. Or, maybe, Trump cannot rely on the ICA to defer funding because any delay would not be for a permitted purpose like achieving savings, but rather, would be for the impermissible purpose of implementing Trump’s own policy agenda over that of Congress.
Whatever the reason might be, Trump’s perspective on the ICA has changed drastically over the years. He used the Act’s procedures to try to rescind funding during his first term, but then spent most of his administration pushing the bounds of the law. And when those efforts proved unsuccessful he shifted again, campaigning for his second term on the dubious contention that the ICA is unconstitutional because of an inherent presidential “impoundment power” that does not exist.
Now, as Trump has re-entered the White House, he has nominated Russell Vought to lead the Office of Management and Budget. Vought pushed the limits of the ICA as part of OMB’s leadership during Trump’s first term and has since argued that the ICA is unconstitutional altogether. But it is Congress, not the president, that has the constitutional responsibility to determine funding levels for the federal government, and it is the president’s constitutional responsibility to faithfully execute duly enacted laws.
Trump’s objections to the ICA reflect yet another attempt to avoid the system of checks and balances established in the Constitution, and to elevate the president’s priorities over those passed by the peoples’ representatives in the House and Senate. At bottom, the ICA gives the president a mechanism to achieve savings and to allow a simple majority in Congress to reduce federal spending. Not only are Trump’s attacks against the law without merit, but they are antithetical to the asserted cost-savings principles of his administration. If President Trump were actually serious about achieving a more cost-efficient government, then the ICA would be his friend, not his foe.