Courts are correct to be skeptical of President Trump’s unprecedented, across-the-board federal spending freezes. President Trump certainly has the right to pursue his policy objectives, but the means he uses to accomplish those objectives matter. And his current approach — a far-reaching effort to cut off federal funds — violates the Constitution’s separation of powers and the Impoundment Control Act, which explicitly limits the president’s ability to adjust Congressional appropriations.
The Constitution grants Congress the power to appropriate funds, meaning Congress decides how federal money should be spent. Article I, Section 8 of the Constitution, known as the Spending Clause, gives Congress the power to spend for the “general Welfare of the United States.”
The president plays a role in spending decisions too. But his role is limited to choosing whether to sign or veto spending bills that Congress passes. Once a spending bill becomes law, the president’s job is to implement those appropriations. Indeed, the Constitution directs that the president “shall take Care that the Laws be faithfully executed.” This power — and duty — to implement spending appropriations is the authority to faithfully carry out those laws, not to alter or thwart them.
Throughout U.S. history, presidents have sometimes claimed a power to “impound” — or decline to spend — funds Congress has already appropriated. For example, President Thomas Jefferson declined to spend $50,000 that Congress had appropriated for gunboats. President Nixon likewise impounded funds that Congress had appropriated for a variety of domestic programs that he disagreed with.
Whether such impoundments are permissible depends, in part, on whether the relevant appropriations statute gives the president discretion to decide whether or not to spend the funds. Members of the Supreme Court have acknowledged that Congress “may confer discretion upon the Executive to withhold appropriated funds, even funds appropriated for a specific purpose.” Such was true in Jefferson’s situation, because the relevant statute appropriated funds “up to” a certain amount to be spent on the ships. By contrast, the Court has held that when a statutory appropriation mandates spending, the president lacks authority to impound. In Train v. City of New York, the Court invalidated Nixon’s attempt to withhold environmental funding Congress appropriated to upgrade sewer systems.
Nixon’s aggressive, illegal impoundments led Congress to pass the 1974 Impoundment Control Act (ICA). The ICA places both procedural and substantive limits on the president’s ability to impound funds.
The first set of limits in the ICA applies when the president wants to rescind (i.e., cancel or not spend) funding appropriated by Congress. Here, the ICA specifies that the president must send Congress a special message detailing exactly which funds would be rescinded, the reasons for rescission and the proposal’s economic impacts. Congress then has 45 days to decide whether to approve the president’s proposal in an expedited “rescission bill.” If the president has followed these ICA procedures, he can pause spending while Congress decides whether to approve his proposal. If, in those 45 days, Congress does not pass a bill to rescind the funding, the president must spend the funds as originally appropriated. The president cannot again propose rescission of the same funds.
The ICA’s second set of limits specifies rules and procedures for presidents who want to delay rather than completely rescind funding. To postpone spending congressionally appropriated funds, the president must send a special message to Congress outlining the funding to be delayed, the reasons and other information the ICA requires. Additionally, the delay cannot be based on policy disagreements or arguments that the spending doesn’t align with the president’s political priorities. Instead, a deferral request must only be for one of the reasons the ICA explicitly lays out: “to provide for contingencies,” “to achieve savings made possible by or through changes in requirements or greater efficiency of operations” or “as specifically provided by law.”
President Trump has not followed any of these statutory requirements. He has ignored the ICA’s procedural requirements for rescinding spending, and Congress has not approved any rescissions. He has not followed the ICA’s procedures for deferrals. Further, his stated reasons for deferrals are exactly the sort of policy reasons that the ICA prohibits. What the spending freezes target as “waste” are programs that conflict with the president’s policy priorities.
President Trump argues that the ICA itself is unconstitutional because he has an inherent “impoundment power” that supersedes Congress’s attempts to constrain him. That argument is weak. Supreme Court precedent makes clear that, when the president takes action “incompatible” with Congress’s will, his authority is at “its lowest ebb, for then he can rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter.” This is certainly the case when the president refuses to spend congressionally appropriated funds and ignores the procedures of a congressional statute that specifically governs impoundment.
Ultimately, the issue is who gets the last word on spending decisions: Congress or the president. President Trump urges that an ill-defined presidential power found nowhere in the constitutional text should somehow override the Constitution’s clear grant of spending power to Congress. That argument is inconsistent with the language and structure of the Constitution and contradicts Supreme Court precedent.
In short, President Trump’s funding freezes violate the Constitution’s separation of powers — a delicate balance that the Framers crafted to ensure that no person or branch of government could dominate the others. The freezes also violate the ICA — a carefully crafted statute that requires the president to thoroughly identify and explain any proposed spending cancellations or delays. The ICA’s provisions ensure that cuts to congressionally appropriated funds are made with a scalpel, not a sledgehammer. And they bind all presidents, even those who impound funds to further worthy objectives like reduction of federal waste.
If President Trump takes seriously his duty to “take care that the laws be faithfully executed,” he should pursue his desired spending cuts in ways that the Constitution, Supreme Court precedent and the laws of the land require.
Kif Augustine-Adams
John Fee
Frederick Mark Gedicks
Lisa Grow
Carolina Núñez
Michalyn Steele
Lucy Williams
We are law professors who teach, research and write in constitutional law and related subjects. We provide our affiliation with BYU Law School for identification purposes only. We speak for ourselves and not for the law school, BYU or its sponsoring institution.