Trump is right about the Impoundment Control Act — it’s unconstitutional

The media has breathlessly reported that former President Donald Trump plans to upend longstanding norms around the separation of powers, such as in coverage of Trump’s criticisms of the Impoundment Control Act, a 1974 law that purports to restrict the president’s authority to save taxpayer money.

A recent Washington Post article and subsequent opinion piece claim that Trump’s plan to reinvigorate the practice of impoundment — intentionally not spending the full amount of a congressional appropriation — violates the Constitution and breaks with longstanding practice.

This is not true.

Far from being a disturbing break with law and practice, Trump’s defense of the impoundment authority is deeply rooted in our constitutional system, good governance norms and American history and tradition. Presidents from both parties have criticized the act’s restrictions on the president’s ability to impound funds to reduce federal spending.

Impoundment is common sense — if it takes fewer resources to implement a program than what was appropriated, an agency should not be forced to waste taxpayer dollars. If there is room for savings in federal programs, why should the president be restrained from ordering agencies to shrink the size of the federal government?

Moreover, impoundment is a key tool for the president to pursue U.S. foreign policy and protect national security. If Congress appropriates foreign aid to a country or international organization, and it is later revealed that this country or organization is actively harming American interests, the president has inherent authority as commander in chief to impound those funds.

But under the Impoundment Control Act, it does not matter that everyone would agree that the president should not send those funds to a foreign adversary. The act does not contemplate that the president can unilaterally impound funds without going back to Congress to have a new law enacted to rescind such funds. This is an unconstitutional limitation on the president’s Article II authority and responsibilities.

In fact, far from being norm-breaking, Trump’s impoundments proposal is in line with centuries of bipartisan, cross-branch history and tradition. For example, in his first annual message to Congress, President Thomas Jefferson announced that his administration had “suspended or slackened…expenditures” for the construction of shipyards to allow the Congress to reassess these Federalist-era appropriations. Executive impoundments continued throughout the 19th century.

By the turn of the 20th century it was well understood, in the words of Attorney General Judson Harmon, that appropriations, even when using language such as “shall,” are not mandatory “to the extent that you are bound to expend the full amount if the work can be done for less.”

Congress also presumed that the president retained his constitutional impoundment authority. For example, Sen. John Sherman protested President Grover Cleveland’s decision to veto a rivers and harbors appropriations bill on the grounds that the president could mitigate any pork barrel spending in the bill through his impoundment power: “If the President … should see proper to say, ‘That object of appropriation is not a wise one; I do not concur that the money ought to be expended,’ that is the end of it. There is no occasion for the veto power in a case of that kind.”

In one of many mid-century impoundments in Democratic administrations, President Harry S. Truman impounded hundreds of millions of dollars for the Air Force. Truman had requested 48 Air Force groups, but the House insisted on 58 groups. The president signed the bill, but only after announcing that he directed the secretary of Defense to place the extra $735 million for the 10 excess groups into reserve. As Truman put it, impoundment is within “the discretionary power of the President. If he doesn’t feel like the money should be spent, I don’t think he can be forced to spend it.” After holding hearings on the constitutionality of the president’s actions, legislators agreed that Truman had acted within his constitutional power.

This is just a brief sampling of presidential impoundments. One thing is clear: impoundment was the norm and within the unchallenged powers of the president until the Watergate Era.

The Impoundment Control Act was a radical break from longstanding constitutional understanding and norms. This legislation, passed during the depths of the Watergate scandal, purports to practically eliminate the president’s longstanding and constitutional power of impoundment. Not only is the Impoundment Control Act thus substantively unconstitutional because it conflicts with the president’s Article II impoundment power, Congress chose unconstitutional means to achieve the act’s unconstitutional ends.

The Impoundment Control Act relies on an unconstitutional mechanism for its enforcement. The law vests enforcement authority in the comptroller general, head of the Government Accountability Office. This arrangement is unconstitutional for several reasons. For one, the comptroller is appointed for a 15-year term and is removable only by Congress. For this reason, in Bowsher v. Synar, the Supreme Court held that it was unconstitutional for Congress to assign executive functions to the comptroller. Yet the act expressly tasks the comptroller with the executive function of enforcing the act’s provisions by audits and vests the comptroller with the right to sue the executive branch to force expenditure of appropriated funds.

Because the comptroller is removable only by Congress, he cannot exercise executive power, yet the Impoundment Control Act purports to give him this power. The act even vests the unaccountable comptroller with standardless discretion to determine what is and is not an impoundment, and on the basis of this determination, authorizes this presidential appointee to sue the president.

Both the Impoundment Control Act’s restrictions on presidential impoundment authority and its mechanism to enforce those restrictions flagrantly violate the Constitution. Trump is right to stand up against this norm-breaking and unconstitutional measure and to restore commonsense limitations on government spending.

Mark Paoletta served as general counsel of the Office of Management and Budget during the Trump administration. He is a senior fellow at the Center for Renewing America. Daniel Shapiro is a former law clerk to Justice Clarence Thomas and Judge Neomi Rao.