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A Constitutional Conflict Over “Impoundment”

by Greg Rosalsky

A constitutional conflict is brewing over Congress’s power of the purse, and whether the president can refuse to spend what Congress has directed him to spend.

Since taking office, the Trump Administration — and Elon Musk’s Department of Government Efficiency (DOGE) — has been seeking to cut federal spending, reduce workforce levels, and dismantle programs and bureaucracies without going through the legislative process. They’re instead claiming that the president has the power to unilaterally override the existing spending plans set by Congress.

The Trump Administration’s broad assertion of executive power to slash spending is not completely out of the blue. Before taking office, Trump’s Office of Management and Budget (OMB) director and Project 2025 architect Russell Vought and OMB general counsel Mark Paoletta were very vocal that the president can and should take unilateral actions to cut spending. And, in a Wall Street Journal op-ed published in November, Musk and then DOGE co-leader Vivek Ramaswamy announced that DOGE “will focus particularly on driving change through executive action based on existing legislation rather than by passing new laws.”

Even more telling, back in 2023, when he was running for reelection, Donald Trump released a campaign video in which he outlined his view that the president should have a special power to slash spending known as “impoundment,” or the power to refuse to spend money appropriated by Congress.

“For 200 years under our system of government, it was undisputed that the president had the constitutional power to stop unnecessary spending through what is known as ‘impoundment,’” Trump said. “Very simply, this meant that if Congress provided more funding than was needed to run the government, the president could refuse to waste the extra funds.” Giving the president the power of impoundment, he said, would help him balance the budget, “drain the swamp,” and “obliterate the Deep State.”

In Trump’s telling, presidents were allowed to freely wield impoundment power until 1974. That’s when the government, during the Watergate era, enacted The Impoundment Control Act, which restricts presidents from unilaterally impounding funds.

“This disaster of a law is clearly unconstitutional — a blatant violation of the separation of powers,” Trump said about the law.

However, a long line of legal scholars, officials, and judges from both political parties — including Brett Kavanaugh, who was appointed by President Trump to the Supreme Court — have rejected the idea that the president has a constitutional power to ignore spending laws. They say the Constitution clearly gives Congress the power of the purse, and that includes the power to tell the executive branch how much — and how little — to spend on things (when those spending directives have passed both houses of Congress and been signed into law by a president; or, if in the face of a presidential veto, Congress passes the spending law with a supermajority in both chambers).

Today in the Planet Money newsletter, what is presidential impoundment power? Is it really constitutional? Or are we witnessing an unconstitutional power grab? We dive into the debate.

Douglas Rissing/Getty Images

Trumpworld’s case for presidential impoundment

First up, let’s look at Trumpworld’s case that impoundment is an inherent power of the president that was unconstitutionally taken away.

Mark Paoletta and his colleagues have made the most comprehensive case for this. Paoletta was the top lawyer at the OMB during President Trump’s first term and is now serving his second stint in that same position. So he’s not just some random academic.

Last year, Paoletta and his colleagues wrote some legal memos outlining their case for a presidential impoundment power (and also the case for why the Impoundment Control Act, which restricts the president from exercising this power unilaterally, is unconstitutional).

In their first memo, they dive into American history. “Since the Founding, Congress’s power of the purse has been understood to establish a ceiling on Executive spending, not a floor,” they write. “Until the Presidency of Richard Nixon, it was overwhelmingly understood that the power of the purse restricted only the President’s ability to spend more than an appropriation — it was not understood to prohibit the President from spending less than an appropriation.”

Paoletta and his colleagues claim that tons of presidents used impoundment power before the Nixon-era restrictions — and that everybody was fine with that. For example, they write that President Thomas Jefferson “refused to spend a congressional appropriation of $50,000 for 15 gunboats for use on the Mississippi.” Congress had passed a law funding these gunboats, but Jefferson ended up being like, nah, it’s cool. Don’t need it. And Congress was like, okay, no worries.

President Ulysses S. Grant, Paoletta and his colleagues write, impounded some infrastructure funds for rivers and harbors. Grant objected to some of the spending because he viewed it as wasteful and not serving the national interest.

President Woodrow Wilson, they write, “declined to expend funds appropriated by Congress for holding a peace conference with the great powers aiming to end the First World War.”

President Franklin Delano Roosevelt, they write, “engaged in widespread and much-publicized impoundments in the Great Depression and World War II.”

And on and on and on.

However, in the early 1970s, President Nixon went hogwild impounding billions and billions of dollars worth of federal funding for a whole variety of social programs, and it angered many lawmakers in Congress. Nixon, at the time, was trying to lower inflation and reign in spending. After Nixon became embattled in the Watergate scandal, Congress began reasserting its power, including over spending.

In 1974, Congress passed and President Nixon signed the Impoundment Control Act, which restricted the president’s use of impoundments, offering presidents pathways to work with Congress if they want to impound funds. President Nixon, who would be forced to resign less than a month later, put on a happy face when he signed the law, saying it provided the government with crucial tools to lower spending and fight inflation.

However, Paoletta and his colleagues argue, “The Impoundment Control Act is an unconstitutional usurpation of the President’s longstanding executive impoundment power.”

The constitutional case against presidential impoundment

For many, many legal scholars and jurists, the Constitution indisputably gives Congress the power of the purse — and that includes the power to set a floor on how much the executive branch should spend on things. And we’re not just talking Democrats here.

William Rehnquist, for example, was clear on his read of the Constitution. Before he was appointed as a Supreme Court justice by Richard Nixon — and before he was promoted to chief justice by Ronald Reagan — Rehnquist served as an assistant attorney general in the Nixon administration. In that position, Rehnquist wrote an Office of Legal Counsel memo in 1969 in which he said the “existence of such a broad power” — that is, a presidential impoundment power — “is supported by neither reason nor precedent.” He continued, “It is in our view extremely difficult to formulate a constitutional theory to justify a refusal by the President to comply with a congressional directive to spend.”

Brett Kavanaugh, who Trump appointed to the Supreme Court, expressed a similar sentiment. In a 2013 opinion, when he was serving on a federal appellate court, Kavanaugh wrote, “the President does not have unilateral authority to refuse to spend.”

David Super, a professor of law and economics at Georgetown Law School, told us in an interview that this whole supposed debate gets settled by one important clause in the U.S. Constitution: The president, it says, “shall take care that the laws be faithfully executed.”

When appropriations are enacted into law, Super says, the Constitution clearly instructs the president to execute them. “So if Congress has provided a million dollars for an activity, the president isn't faithfully executing that law if he fails to spend it.”

Super says the Supreme Court has already been clear on this matter. In 1975, the Supreme Court, in Train v. City of New York, ruled on President Nixon’s unilateral impoundment of funds. Nixon had instructed the government to not spend the full amount of money appropriated by Congress to clean up public water systems in New York City under The Federal Water Pollution Control Act. The court ruled unanimously that Nixon couldn’t do this, that the president “did not have the authority to refrain from spending the money,” Super says. “ The Supreme Court said, ‘That's not taking care that the laws be faithfully executed. You have to spend that money that Congress has provided.’”

In one of their memos on this issue, Paoletta and his co-authors stress that the Supreme Court, in Train, did not provide the final word on presidential impoundment power. The opinion, they claim, is “confined to the particular statutory scheme at issue and does not address the President’s constitutional impoundment power.”

Super says it’s true that the Department of Justice, representing President Nixon, did not make the argument in Train that the president has an inherent impoundment power, so the Supreme Court didn’t specifically address that issue. But, Super says, “that’s because it’s an absurd argument.” The Nixon Justice Department, he says, didn’t even try to argue that the president has an inherent power to override the spending directives of Congress.

Super also points to another Supreme Court case: Clinton v. City of New York. In 1996, Congress passed and President Clinton signed The Line Item Veto Act. The law sought to give the president a special power to veto specific funding provisions in budget bills after he signed bills into law. This is analytically similar to impoundment: the line item veto gave the president the unilateral power to cancel specific appropriations — to spend less than Congress instructed the president to do.

“And the Supreme Court said, no, that’s unconstitutional,” Super says. “That’s giving the president the ability to amend the law, and he has no such power. The court held that even with Congress’ approval. The president cannot refuse to spend money in this way.”

A rejection of Trump’s interpretation of presidential history

But what about the 200 years before the Impoundment Control Act, when presidents apparently did impound funds? Trump and his legal team have made a big deal out of this. Why were presidents allowed to impound funds if it wasn’t in their constitutional powers?

Super says he has read Paoletta and his colleagues’ memo that digs into American history, and he says they get the history wrong.

For example, the famous instance of Thomas Jefferson refusing to spend money appropriated by Congress for gunboats. Look at how the statute is worded, Super says, and you will see that Congress allowed Jefferson to do this. The law authorized the president to fund the construction of “a number not exceeding fifteen gun boats” — and use them “for such purposes as is his opinion the public service may require” — with “a sum not exceeding fifty thousand dollars.” In other words, in this law, Congress explicitly set a ceiling — but not a floor — on how much Jefferson could spend on gunboats.

“Jefferson was not refusing to take care that the law be faithfully executed because the law gave him that discretion,” Super says. ”Congress can pass laws giving the president this discretion. But if Congress passes a law requiring the money to go out, then that's one of the laws the president is obliged to follow.”

Zachary Price, a professor of law at UC Law San Francisco (formerly known as UC Hastings), has a similar read of this history. More generally, he says, in the 200 years before the Impoundment Control Act, there was a casual understanding between Congress and the president that, if the president could save money accomplishing a particular goal outlined by Congress, that was okay.

However, when Nixon started directly defying the policy goals of Congress and impounding billions of dollars worth of funds, that became a much different matter. And that’s when Congress decided to assert their authority over the power of the purse, and said, no more unilateral fund slashing.

The Impoundment Control Act does not prohibit the president from impounding funds. Instead, it offers the president legal pathways to both pause and slash spending. However, both pathways require oversight and participation from Congress.

Super stresses that he believes that the Impoundment Control Act is constitutional. And, ironically, he suggests, if the Supreme Court or Congress did knock it down, it would actually restrict the president's ability to impound funds because he would no longer have legal pathways to do it anymore.

If the Impoundment Control Act was gone, Super says, “then we would just have what the Supreme Court said in Train v. New York, which is that the money must be spent. Period. Full stop.”

Super says he’s alarmed by the Trump Administration's actions that ignore congressional directives and by other actions that he thinks undermine the Constitution’s system of checks and balances.

But, he admits, there has been a silver lining. He says he’s teaching a class on legislation this semester, and, coincidentally, he had the Impoundment Control Act on the syllabus for the day after the Trump administration issued a memo freezing a bunch of federal funding. “So I emailed it out to my students the night before and said, ‘add this to the readings.’”

“ As a teacher, I couldn't be more grateful for their timing with this,” Super says. “As a lawyer and a citizen, I'm troubled by it.”

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Planet Money - "Impoundment," explained

A Constitutional Conflict Over “Impoundment”

Trumpworld’s case for presidential impoundment

The constitutional case against presidential impoundment

A rejection of Trump’s interpretation of presidential history

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