Can the President Refuse To Spend Money Authorized by Congress?
Imagine, for a moment, a president who doesn’t want to spend money. Given the last several decades of presidential history, this may sound fanciful. But assume that a president has successfully campaigned on spending less money, and perhaps even balancing the federal budget, and then, once in office, has decided to try to carry out that program. What would such a president do?
If a president wants the federal government to spend less money, then somewhere, somehow, at some time, someone with appropriate authority needs to actually stop spending money.
This is even more difficult than it sounds.
It’s not just that in Washington, plans to spend more, but less than otherwise expected, are frequently denounced as debilitating cuts. Nor is it simply that bureaucrats stamp their feet and leak stories of supposedly draconian spending reductions to friendly media outlets. Nor is it even that the voting public, in its mass incoherence, seems to prefer a mix of high spending and low taxes—a luxury government lifestyle that it literally cannot afford.
There is an underrated impediment to spending less: the Constitution itself, at least if you’re the president. The Constitution grants Congress the sole power of the purse. The executive branch is tasked with faithfully executing the laws Congress passes. If Congress passes a law saying jump, it’s the president’s job to jump. And if Congress passes a law that says spend, it’s the president’s job to spend.
This has turned out to be a problem for President Donald Trump, who set up a Department of Government Efficiency, or DOGE, that operates through the auspices of the U.S. Digital Service. Trump has described DOGE as run by the billionaire businessman Elon Musk, although it’s never been quite clear whether he’s formally in charge. It has pursued a variety of cuts and delays to executive-branch spending—suspending various grants and dismissing, according to some estimates, thousands of workers and contractors. Part of Musk’s strategy has been to dig into the bowels of the federal payment systems themselves, the complex, often outdated computer systems that pay out vast sums every day. At times, Musk has seemed to be pursuing a goal of spending less by directly stopping the government systems that pay out money. If nothing else, it’s a novel strategy.
One legal question is whether Musk, whose official status remains murky, has the authority to make these cuts. He appears to have the backing of the president, who in theory has authority over the workings of the executive branch—in theory, because another, bigger legal question is whether even the president has the authority not to spend money if it has been authorized and appropriated by Congress.
The practice of withholding or otherwise declining to spend duly authorized funds is known as impoundment, and it has a long and complex history. Courts have repeatedly said the president does not have authority to do this. In 1974, after years of fighting with President Richard Nixon over the practice, Congress passed the Congressional Budget and Impoundment Control Act with veto-proof majorities, and Nixon signed it into law. This law not only created the modern budget process; it strictly prohibited unilateral executive impoundment. And that would seem to be that.
But Trump isn’t a president who always abides by historic norms or legal strictures.
In his first term, he violated the Impoundment Control Act on one notable occasion, according to one government watchdog. In his second term, he has once again tapped a man named Russ Vought to run the Office of Management and Budget (OMB). Vought is a self-described radical with roots in the Tea Party movement who views budget cutting as a key part of the culture war. He has also told Congress, on the record, that both he and Trump view the Impoundment Control Act as an unconstitutional limitation on executive power.
Vought’s theories are well outside the mainstream, and even many ardent supporters of limited government disagree with him on that question, viewing Vought as far too willing to bend, or outright ignore, the rule of law. But even more than Musk, he is likely to be at the center of legal and practical battles about cutting the size and scope of the federal government. Because what Vought fundamentally believes is that the only way to cut government spending and bring the bureaucracy to heel is to radically empower the executive branch, giving the president power that the Constitution reserves for Congress alone.
Vought’s ideas represent a deep and difficult challenge for those who want to cut spending and check executive authority, the classical liberals and libertarians who believe in limited government, a constitutionally constrained executive, and the rule of law. Because if Vought is right, you can’t have all three.
Nixon’s Nixes
The roots of the dispute over impoundment go back to 1972, when Congress passed the Federal Water Pollution Control Act amendments, a series of updates and expenditures that became better known as the Clean Water Act. Nixon believed the $24 billion law was too expensive: His biggest headache at that point was soaring inflation, and tens of billions in new federal spending seemed likely to make that problem worse.
Nixon vetoed the bill. Congress then mustered the two-thirds majority vote to override the veto. Nixon then simply refused to spend a large chunk of the funds—about $9 billion targeted at building out new sewage treatment infrastructure. This was arguably Nixon’s most flagrant act of fiscal defiance against Congress, and it set up a legal showdown over impoundment.
Depending on who you ask and how you define it, impoundment is an old practice. In the early 1800s, President Thomas Jefferson decided not to spend $50,000 that had been appropriated on a fleet of new warships to fight on the Mississippi River, where naval conflict had broken out. In that particular case, not spending money was easy: Jefferson simply notified Congress that he wasn’t going to spend the money due to a “favorable and peaceable turn of affairs” which “rendered an immediate execution of that law unnecessary.” Neither Congress nor the courts objected.
When Nixon tried to withhold spending on sewage treatment, the outcome was rather different.
A group of cities, including New York, sued Nixon’s Environmental Protection Agency, at the time headed by Russell Train, resulting in a yearslong legal battle over impoundment. Finally, the case, Train v. City of New York, reached the Supreme Court, which in 1975 ruled that Nixon’s refusal to spend funds had been illegal. Nixon’s constitutional duty as president was to take care to execute the laws faithfully. He didn’t have the authority to not spend money as directed by laws passed by Congress.
Congress, meanwhile, had already taken
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