Making Sense of Presidential Actions. Or is that an Oxymoron?

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.

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Elaine no longer writes about public policy issues. To learn more about her fiction, visit https://elaineorr.com