WASHINGTON \u2014 While polling has tightened since President Joe Biden exited the race, a second term for former President Donald Trump remains a distinct possibility, setting the stage for perhaps the biggest confrontation with Congress over the power of the purse since the Nixon administration.<\/p>\n
Trump hasn\u2019t been shy about his affinity for \u201cimpoundments,\u201d a practice Congress clamped down on in a landmark 1974 law that the former president and his aides believe is unconstitutional. The basic idea is simple: Refuse to spend money that\u2019s been appropriated, or in some cases, redistribute it to places Congress didn\u2019t intend.<\/p>\n
The ex-president during his Republican National Convention speech referenced his first-term decision to redirect some $10 billion in military funds towards his southern border wall project after lawmakers largely wouldn\u2019t go along.<\/p>\n
\u201cOn the wall, we were dealing with a very difficult Congress and I said, \u2018Oh, that\u2019s OK. We won\u2019t go to Congress,\u2019\u201d Trump said in his speech upon accepting the GOP nomination. \u201cWe gave our military almost $800 billion. I said, \u2018I\u2019m going to take a little of that money, because this is an invasion.\u2019 And we built \u2014 Most of the wall is already built, and we built it through using the funds, because what\u2019s more, what\u2019s better than that?\u201d<\/p>\n
Trump\u2019s defense funding diversion cited two specific statutes allowing the moves, including declaration of a border emergency and the use of Pentagon drug interdiction authorities. Much of the money was successfully shifted before court challenges were resolved.<\/p>\n
Later in his speech, Trump went after funding approved for clean energy projects during Biden\u2019s term, including as part of the 2021 bipartisan infrastructure law and Democrats\u2019 2022 budget reconciliation package.<\/p>\n
\u201cAnd all of the trillions of dollars that are sitting there not yet spent, we will redirect that money for important projects like roads, bridges, dams and we will not allow it to be spent on the meaningless green new scam ideas,\u201d Trump said, putting a new spin on what some Democrats have pitched as a Green New Deal to reduce carbon emissions.<\/p>\n
At other times during his campaign, Trump has pitched his impoundment philosophy as a deficit-cutting tool. In a video posted last year<\/a>, Trump said withholding federal funds was \u201cthe only way we will ever return to a balanced budget.\u201d<\/p>\n He called it a \u201ccrucial tool with which to obliterate the deep state, drain the swamp, and starve the warmongers,\u201d although Trump also made clear that defense would be spared from cuts, along with Social Security and Medicare. Considering those three programs account for over 60 percent of all federal noninterest spending, many federal agencies and other benefits would need to be wiped out to balance the budget without also raising taxes.<\/p>\n But even if Trump were to start smaller, he\u2019d still be headed for a major clash with Congress and the courts over the 1974 budget law, which the former president has called a \u201cdisaster,\u201d \u201cclearly unconstitutional\u201d and a \u201cblatant violation of the separation of powers.\u201d<\/p>\n Experts widely believe, based on past court decisions and legal opinions, that the president does not have an inherent constitutional right to impound appropriated funds. Former aides to Trump, some of whom may end up populating a second-term administration, have already been laying the groundwork for him to challenge that assumption.<\/p>\n There has never been a conclusive court ruling on the issue of constitutionality. And Mark Paoletta, who served as general counsel in Trump\u2019s Office of Management and Budget, argues in a short history of impoundment that the president has a right to cancel appropriated funds and that the 1974 law is unconstitutional.<\/p>\n Paoletta, a senior fellow at the Center for Renewing America \u2014 founded by Russ Vought, Trump\u2019s former budget director \u2014 writes<\/a> that administrations going back to George Washington believed that the president was not required to spend the full amount appropriated by Congress.<\/p>\n One famous example he gives is Thomas Jefferson\u2019s initial refusal in 1803 to buy gunboats to patrol the Mississippi River, for fear of upsetting negotiations with the French over what became the Louisiana Purchase.<\/p>\n Other examples: President Ulysses S. Grant refused to spend some money Congress appropriated in 1876 for rivers and harbors, pointing out that he didn\u2019t like funds being spent for \u201cpurely private or local\u201d interests \u2014 foreshadowing latter-day debates over earmarks. The Roosevelt, Truman and Eisenhower administrations all made high-profile impoundments, Paoletta wrote.<\/p>\n \u201cThese impoundments were justified based on the longstanding understanding that appropriations could only set a ceiling on executive spending,\u201d not set a minimum, he wrote.<\/p>\n Then came President Richard M. Nixon, who took the practice to a new level.<\/p>\n He delayed or canceled funding for multiple programs funded by Congress, including farm programs, wastewater treatment allotments and housing aid. The Nixon administration justified the impoundments in various ways, sometimes depicting the spending as unnecessary or ineffectual, other times citing efforts to control inflation.<\/p>\n \u201cUsed with restraint and circumspection, impoundment is a viable instrument, capable of being used without precipitating a crisis,\u201d Louis Fisher, a constitutional law expert and veteran of the Congressional Research Service and Library of Congress, wrote in 1973<\/a>. But under Nixon, \u201crestraint was replaced by abandon, precedent stretched past the breaking point, and statutory authority pushed beyond legislative intent.\u201d<\/p>\n Fisher\u2019s research was credited with laying the groundwork for what became the 1974 budget law. Fisher said in an interview that Nixon sent him the pen used to sign the law, despite their differences over presidential powers.<\/p>\n Fisher had worked with House and Senate staff and top executive branch officials on the impoundment legislation, he said. \u201cThey agreed with me, and I think they were the ones who told him, just sign it because it\u2019s bipartisan and if you veto it, they are going to override you,\u201d he said.<\/p>\n Paoletta and his co-authors, however, argue that Nixon\u2019s use of impoundment \u201cwas well within constitutional understanding and practice going back to the founding.\u201d They write that Congress\u2019 \u201cuse of its power of the purse to make it illegal for the president to intentionally spend less than the full amount of what was appropriated was norm-breaking, unprecedented, and unconstitutional.\u201d<\/p>\n Trump has previously tried to work within the 1974 law to cancel appropriated spending. While impoundments are otherwise forbidden under that statute, a president can withhold funding for 45 days after sending a \u201cspecial message\u201d informing Congress of a decision to block the money, which triggers legislation to implement the proposal. If lawmakers have not cleared legislation to cancel the funding by the end of the 45-day window, the money is released.<\/p>\n The Trump administration attempted to cancel $15 billion in unspent funds in 2018, but legislation to implement the cuts stalled in the Senate.<\/p>\n A president also is allowed to temporarily defer spending, but only for specified reasons including providing for contingencies and achieving savings through improved efficiency.<\/p>\n In 2019, with Democrats back in control of the House, Trump again toyed with impoundment powers, with ultimately historic consequences: his first impeachment.<\/p>\n Trump\u2019s budget office temporarily withheld security assistance to Ukraine in what critics said was retaliation for President Volodymyr Zelenskyy\u2019s failure to produce political dirt he could use against Biden, his 2020 campaign opponent. The Senate didn\u2019t convict him, but Trump\u2019s move touched off a congressional review of whether he violated the 1974 law.<\/p>\n The Government Accountability Office ultimately ruled<\/a> that some, but not all, of the deferred Ukraine spending was an illegal impoundment made for \u201cpolicy reasons.\u201d Paoletta, who was then OMB general counsel, responded<\/a> on Jan. 19, 2021 \u2014 just before Trump left office \u2014 that the executive branch has discretion to \u201cdelay spending for even a very short period so that it may determine the best policy in order to comply with the statute.\u201d<\/p>\n It\u2019s unclear what path Trump might pursue to challenge the constitutionality of the impoundment law. Based on conversations with supporters and critics of the former president, what appears most likely is that he would impound funds and then defend against any litigation in court. Fighting an impoundment that opponents view as illegal could take months or years, meaning the funding that is withheld could expire before a challenge is resolved.<\/p>\n While there\u2019s no statutory penalty for violating the impoundment law, it does give the comptroller general authority to sue an executive agency or employee who withholds funding after first providing the speaker and president of the Senate with an \u201cexplanatory statement.\u201d That\u2019s only happened once, in 1975, when the GAO sued then-President Gerald Ford, his budget director and Housing and Urban Development secretary.<\/p>\n HUD had suspended a program that subsidized mortgage interest payments for low-income families under Nixon. Ford continued the suspension in order to conduct a review following reports of abuse. After the GAO suit was filed, the program was reactivated, with some revisions, before the case was concluded in the courts.<\/p>\n Paoletta argues it is unconstitutional for the comptroller general to enforce the impoundment law since the comptroller is a legislative branch official who, though appointed by the president with the consent of the Senate, cannot be removed from office by the president.<\/p>\n Whether the GAO sues or not, aggrieved parties could seek standing to challenge an impoundment in court by arguing they were injured by it.<\/p>\n That was \u201cthe posture of the cases from the 1970s, where the Nixon administration withheld funding under various particular statutory provisions that would have resulted in grant and loan payments to the cities that filed the lawsuits,\u201d said Eloise Pasachoff, a Georgetown University law professor who\u2019s written<\/a> on the topic. Courts ultimately held that the statutes didn\u2019t allow such impoundments, but constitutional questions weren\u2019t decided.<\/p>\n Whether Congress can claim standing to challenge impoundments in court hasn\u2019t been tested either, legal experts say. Some left-leaning groups, like Protect Democracy, are prepping their own legal arguments, including backup from Justice Department opinions released during Ronald Reagan\u2019s administration and even Nixon\u2019s.<\/p>\n But Trump certainly seems ready for a fight.<\/p>\n \u201cWith impoundment, we can simply choke off the money. This policy is anti-inflation, anti-swamp, anti-globalist \u2014 and it\u2019s pro-growth, pro-taxpayer, pro-American, and pro-freedom,\u201d Trump said in his 2023 campaign video. \u201cI alone can get that done.\u201d<\/p>\n ___<\/p>\n\u2018Past the breaking point\u2019<\/h3>\n
Impoundment to impeachment<\/h3>\n
Impound first, ask questions later?<\/h3>\n