Note: I usually write about books and writing. This piece is an attempt to put a major challenge facing the U.S. into terms people can understand without a law degree. Comments on the substance are welcome.
By Elaine L. Orr
If you've "only" known me for 20-30 years, you
wouldn't know I have an M.A. in Government and was director of international
liaison at what is now called the Government Accountability Office from
1980-86.
One project Comptroller General Elmer Staats established and
Charles Bowsher continued was an annual fellowship program for people from less
developed countries -- the theory being since U.S. assistance went overseas it
made sense to contribute to the expertise of local agencies that audited those
funds. The cooperation engendered among the participants (not just bilaterally)
was rewarding to see.
Participants came from many different government systems. We
quickly learned we needed to conduct a brief "intro to U.S.
government" segment. Two concepts were not common in some other countries
-- separation of powers among the legislative, executive, and judicial
branches; and oversight of executive branch programs. Some participants were
from systems that deferred totally to executive power. Even in democratic
parliamentary systems, the chief executive/prime minister is head of the party
that controls the legislature.
Oversight (whether by congressional entities or Inspectors
General within the executive branch) is an important check on executive power in
the United States. As auditors in their own countries, those in the fellowship
program were more used to financial reviews than program evaluation.
Defining Powers
I would like to jump right to describing why it’s not legal to
withhold funds Congress has appropriated (impounding funds), but first are summaries
of Articles I (legislature), II (executive), and Article III (judiciary)
branches -- thanks to online summations, followed by a link to the relevant
parts of the Constitution.
Article I
– the Legislative Branch
Think of Congress as setting many balls in motion, including
raising money and deciding how the federal government should spend it. The most
relevant part of Article I of the Constitution to this discussion is that it gives
Congress the authority to spend money to pay debts and provide for the common
defense and general welfare.
Other components also relate to money – taxation, borrowing,
bankruptcy, and currency. Stated in simple terms, Congress also regulates most commerce,
establishes post office and roads, sets rules for naturalization, raises and
supports the military, and declares war. Congress also establishes federal
courts below the Supreme Court.
As recent hearings have shown, Congress has substantial
investigative powers and can confirm or reject presidential appointments.
For specifics on Article I of the Constitution, annotated: https://constitution.congress.gov/constitution/article-1/
Article
II – Executive Branch
Article II of the United States Constitution establishes the
executive branch of the federal government and the powers of the president.
The executive branch enforces laws and the president appoints
officials to do so. Nowhere in Article II of the constitution is the president granted
authority to decide on spending. The president is commander in chief of the
military and (especially prominent now) can grant pardons and reprieves, except
in cases of impeachment.
The President nominates and appoints ambassadors, judges,
and other public officials. He has authority over foreign affairs, including
making treaties (with Senate's consent) and receiving ambassadors and other
public officials. He can commission officers of the United States and can
convene Congress in extraordinary circumstances. President Truman was the last
to convene both houses of Congress, in the summer of 1948.
Article II itself, with annotations: https://constitution.congress.gov/constitution/article-2/
Article III -- Reining
in Executive Powers
Article III vests judicial power in one Supreme Court and in
such inferior courts as Congress “may from time to time ordain and establish.”
The judges, both of the supreme and inferior courts, hold their offices during
good behavior, and receive compensation, which shall not be diminished during
their continuance in office. The latter is one element of judicial
independence.
Federal judges at and above the district court level (Article
III judges) serve for life unless impeached. Congress can also give the power
to adjudicate cases to non-Article III courts.
Very simplistically, federal judges deal with cases that
arise from federal laws, controversies between states, treaties, and many aspects
of international law. A person or organization has to have standing (has to be
affected by) a situation to bring a case before a court.
Over the next few months, there will likely be dozes of arguments
about the power of the courts to intervene when the current president is accused
of ignoring the constitution.
Article III with annotation https://constitution.congress.gov/constitution/article-3/
Congressional oversight takes place all the time (often by
staff under Member guidance), and is most visible through congressional
hearings. The Government Accountability Office is part of the legislative
branch and issues its reports to Congress.
Congress created the inspector general position in more than
a dozen federal entities in 1978 and added additional safeguards to the
positions in 2008. The President shall communicate in writing the
reasons for any removal or transfer to both Houses of Congress, not later than
30 days before the removal or transfer.
President Trump fired all of them soon after taking office,
clearly against the law. Legal actions are underway.
Why
Impoundment is Unconstitutional –
And Why
That Matters
Executive orders cannot override federal laws or the statutes
that codify them. If Congress passes an appropriation designating money for
disaster relief and there are fewer disasters than anticipated (we wish), the
president does not have to spend the all the money. That’s not a policy refusal
to spend.
Impoundment is a stated refusal to spend appropriated funds.
Presidents have tried it since President Jefferson, who did not want to
purchase gunboats to patrol the Mississippi River. He maintained that the
Louisiana Purchase made such patrols unnecessary and the gunboats were a waste
of money. He may have been right, but after a year he spent the funds, avoiding
a congressional showdown (at least publicly).
While other presidents refused to spend funds occasionally,
they generally were able to resolve disagreements with Congress. President
Nixon was different. Soon after he was sworn in for a second term in 1973, he
announced he had a constitutional right to withhold funds for a number of
programs – all domestic, including clean water, Model Cities, urban renewal, and
health.
He was willing to spend funds on space, weapons systems,
supersonic transport and many more. In other words, he only refused to spend
money on programs he disagreed with.
The Supreme Court has overturned any impoundment attempts
that reached them, before or after Nixon. In Train v. City of New York (issued
in 1975, underway in 1974) the court ruled that the impoundment power cannot be
used to frustrate the will of Congress (when it comes to spending appropriated
funds).
In 1974, Congress enacted the Impoundment Control Act. The statute
(as modified) precludes the “rescission” (meaning cancellation) of budget
authority without new legislation. It also bans “deferral” (meaning postponement) of spending
unless the reasons for the delay are program-based rather than policy-based.
Presidents can only use the impoundment power by submitting
requests to Congress about funds they don’t want to disburse. Lawmakers then
have to approve those requests within 45 days, otherwise the funds are released.
The Act thus gives the president limited impoundment authority, with
congressional approval.
Why can’t the
president unilaterally decide not to spend money? Because Article II gives
Congress what is generally termed the power of the purse. Executive orders cannot override federal laws and statutes.
Why does it matter if the president does not spend large chunks of the federal budget? Voters express their opinion at the ballot box, but not just for president. Members of Congress are physically close to their constituents, especially House members. They have real conversations with voters from time to time and have a sense of what they want -- whether they agree with them or not. The members clash with other members of Congress to create bills that become laws the president signs. Voter opinions matter.
In an opinion years after the 1974 Act (Clinton
v. City of New York), Justice Antonin Scalia wrote, “President Nixon, the
Mahatma Gandhi of all impounders, asserted at a press conference in 1973 that
his ‘constitutional right’ to impound appropriated funds was ‘absolutely
clear.’ … Our decision two years later in Train v. City of New York proved him
wrong.”
If you want background on impounding federal funds, read From
The Dispatch, published by The American Enterprise Institute.
https://thedispatch.com/article/yanking-on-the-purse-strings/
None of this means the president cannot reduce waste or
inefficiencies. Some actions could be undertaken alone (especially if they do
not require funding shifts or organizational changes), others would be done
with Congress.
The Government Accountability Office publishes an annual report
on the federal government’s opportunities to reduce fragmentation, overlap, and
duplication, as well as reduce costs and increase revenue. (https://www.gao.gov/duplication-cost-savings)
The Heritage Foundation lists ten examples of things the president can tackle. https://www.heritage.org/budget-and-spending/report/top-10-examples-government-waste
Forbes (to which I subscribe) has a good overall discussion
of impoundment. It mentions Trump’s efforts to withhold aid to Ukraine as a
political bargaining chip; for which he was impeached. The GAO issued a legal
opinion saying he violated the Impoundment Control Act. https://www.forbes.com/sites/alisondurkee/2025/01/28/can-trump-cancel-government-funds-through-impoundment-what-to-know-as-he-pauses-all-federal-assistance/
By the way, I'm providing information from organizations perceived
as neutral (such as GAO and Forbes) or that the current president
regards as friendly to him (Heritage Foundation and the American Enterprise
Institute). However, even most of the “friendly” organizations seem aghast at
the brash power grabs and find them
likely to be overturned by the Supreme Court -- which has been very clear that
the Constitution matters.
Why Take
Actions the Court Will Overturn?
Sometimes you disagree with someone but you get why they are
doing what they are doing. It makes sense to them, and (hopefully) it’s legal.
Elon Musk and Donald Trump probably think that if they move
fast they can do what they want to “reduce the size” of government or “reduce
waste.” As Nixon did, they have picked policies or programs they don’t like,
such as the U.S. Agency for International Development or Department of
Education. Both are statutory, independent organizations Congress created and
funds.
And I haven’t even mentioned the now-court-paused “freeze”
on most federal funds. What the heck are Musk and Trump thinking? Don’t tell me,
for example, that farmers who voted for Trump expected funds from the United
States Department of Agriculture's (USDA’s) five-year Midwest Climate Smart
Commodity grant to be placed on hold.
What’s funny/not funny is that there are other programs that
spend a lot more money and could possibly be altered. But, efficiency really
isn’t the goal.
The American Enterprise Institute article has two concise
paragraphs near the end that sum up the situation.
There is no getting around that the Constitution contains
two potentially contending authorities: Congress having the power to direct
federal resources and the president having the power to administer the daily
functioning of government. If either authority is carried to an extreme, one
can undermine the other.
The circle to be squared is preserving Congress’ power
over the purse while still providing for a limited level of presidential
discretion to see to it that the resources of the federal government are spent
properly and efficiently. The rub comes when presidents want to use that
discretion for broader policy purposes.
The rub is underway.
Because Republicans control both houses of Congress, Musk
and Trump may think they won’t require congressional approval for their actions
within the 45 days required by the Impoundment Control Act. They certainly don’t
plan to stop the impoundments. Since some congressional leaders have misplaced
their spines, that’s the situation, at least for now.
I’m no expert, but it seems to me that the Supreme Court will
overturn executive branch impoundment actions. Rich people are used to getting
their way. In this case, Musk and Trump have given a big hammer to those who not only oppose them but also
believe in upholding the U.S. Constitution.
* * * *
Elaine no longer writes
about public policy issues. To learn more about her fiction, visit https://elaineorr.com
