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HOW TRUMP PLANS TO SEIZE THE POWER OF THE PURSE FROM CONGRESS  
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Molly Redden
November 26, 2024
Propublica
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_ The second-term president likely will seek to cut off spending that
lawmakers have already appropriated, setting off a constitutional
struggle within the branches. If successful, he could wield the power
to punish perceived foes. _

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_ProPublica is a Pulitzer Prize-winning investigative newsroom. Sign
up for The Big Story newsletter
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to receive stories like this one in your inbox_.

Donald Trump is entering his second term with vows to cut a vast array
of government services and a radical plan to do so. Rather than
relying on his party’s control of Congress to trim the budget, Trump
and his advisers intend to test an obscure legal theory holding that
presidents have sweeping power to withhold funding from programs they
dislike.

“We can simply choke off the money,” Trump said in a 2023 campaign
video
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“For 200 years under our system of government, it was undisputed
that the president had the constitutional power to stop unnecessary
spending.”

His plan, known as “impoundment,” threatens to provoke a major
clash over the limits of the president’s control over the budget.
The Constitution gives Congress the sole authority to appropriate the
federal budget, while the role of the executive branch is to dole out
the money effectively. But Trump and his advisers are asserting that a
president can unilaterally ignore Congress’ spending decisions and
“impound” funds if he opposes them or deems them wasteful.

Trump’s designs on the budget are part of his administration’s
larger plan to consolidate as much power in the executive branch as
possible. This month, he pressured the Senate to go into recess so he
could appoint his cabinet without any oversight. (So far, Republicans
who control the chamber have not agreed to do so.) His key advisers
have spelled out plans to bring independent agencies, such as the
Department of Justice, under political control.

If Trump were to assert a power to kill congressionally approved
programs, it would almost certainly tee up a fight in the federal
courts and Congress and, experts say, could fundamentally alter
Congress’ bedrock power.

“It’s an effort to wrest the entire power of the purse away from
Congress, and that is just not the constitutional design,” said
Eloise Pasachoff, a Georgetown Law professor who has written about the
federal budget and appropriations process. “The president doesn’t
have the authority to go into the budget bit by bit and pull out the
stuff he doesn’t like.”

Trump’s claim to have impoundment power contravenes a Nixon-era law
that forbids presidents from blocking spending over policy
disagreements as well as a string of federal court rulings that
prevent presidents from refusing to spend money unless Congress grants
them the flexibility.

In an op-ed published Wednesday
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tech billionaire Elon Musk and former Republican presidential
candidate Vivek Ramaswamy, who are overseeing the newly created,
nongovernmental Department of Government Efficiency, wrote that they
planned to slash federal spending and fire civil servants. Some of
their efforts could offer Trump his first Supreme Court test of the
post-Watergate Congressional Budget and Impoundment Control Act of
1974, which requires the president to spend the money Congress
approves. The law allows exceptions, such as when the executive branch
can achieve Congress’ goals by spending less, but not as a means for
the president to kill programs he opposes.

Trump and his aides have been telegraphing his plans
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for a hostile takeover of the budgeting process for months. Trump has
decried the 1974 law
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as “not a very good act” in his campaign video and said,
“Bringing back impoundment will give us a crucial tool with which to
obliterate the Deep State.”

Musk and Ramaswamy have seized that mantle, writing, “We believe the
current Supreme Court would likely side with him on this question.”

The once-obscure debate over impoundment has come into vogue in MAGA
circles thanks to veterans of Trump’s first administration who
remain his close allies. Russell Vought, Trump’s former budget
director, and Mark Paoletta, who served under Vought as the Office of
Management and Budget general counsel, have worked
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to popularize the idea
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from the Trump-aligned think tank Vought founded, the Center for
Renewing America.

On Friday, Trump announced he had picked Vought
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to lead OMB again. “Russ knows exactly how to dismantle the Deep
State and end Weaponized Government, and he will help us return Self
Governance to the People,” Trump said in a statement.

Vought was also a top architect of the controversial Project 2025. In
private remarks to a gathering of MAGA luminaries uncovered by
ProPublica
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Vought boasted that he was assembling a “shadow” Office of Legal
Counsel so that Trump is armed on day one with the legal
rationalizations to realize his agenda.

“I don’t want President Trump having to lose a moment of time
having fights in the Oval Office about whether something is legal or
doable or moral,” Vought said.

Trump spokespeople and Vought did not respond to requests for comment.

The prospect of Trump seizing vast control over federal spending is
not merely about reducing the size of the federal government, a
long-standing conservative goal. It is also fueling new fears about
his promises of vengeance.

A similar power grab led to his first impeachment. During his first
term, Trump held up nearly $400 million in military aid to Ukraine
while he pressured President Volodymyr Zelenskyy to open a corruption
investigation into Joe Biden and his family. The U.S. Government
Accountability Office later ruled his actions violated the Impoundment
Control Act
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Pasachoff predicted that, when advantageous, the incoming Trump
administration will attempt to achieve the goals of impoundment
without picking such a high-profile fight.

Trump tested piecemeal ways beyond the Ukrainian arms imbroglio to
withhold federal funding as a means to punish his perceived enemies,
said Bobby Kogan, a former OMB adviser under Biden and the senior
director of federal budget policy at the left-leaning think tank
American Progress. After devastating wildfires in California and
Washington, Trump delayed or refused to sign disaster declarations
that would have unlocked federal relief aid because neither state had
voted for him
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He targeted so-called sanctuary cities by conditioning federal grants
on local law enforcement’s willingness to cooperate with mass
deportation efforts. The Biden administration eventually withdrew the
policy.

Trump and his aides claim there is a long presidential history of
impoundment dating back to Thomas Jefferson.

Most historical examples involve the military and cases where Congress
had explicitly given presidents permission to use discretion, said
Zachary Price, a professor at the University of California College of
the Law, San Francisco. Jefferson, for example, decided not to spend
money Congress had appropriated for gun boats — a decision the law,
which appropriated money for “a number not exceeding fifteen gun
boats” using “a sum not exceeding fifty thousand dollars,”
authorized him to make.

President Richard Nixon took impoundment to a new extreme, wielding
the concept to gut billions of dollars from programs he simply
opposed, such as highway improvements, water treatment, drug
rehabilitation and disaster relief for farmers. He faced overwhelming
pushback both from Congress and in the courts. More than a half dozen
federal judges and the Supreme Court ultimately ruled that the
appropriations bills at issue did not give Nixon the flexibility to
cut individual programs.

Vought and his allies argue the limits Congress placed in 1974 are
unconstitutional, saying a clause in the Constitution obligating the
president to “faithfully execute” the law also implies his power
to forbid its enforcement. (Trump is fond of describing Article II,
where this clause lives, as giving him “the right to do whatever I
want as president.”)

The Supreme Court has never directly weighed in on whether impoundment
is constitutional. But it threw water on that reasoning in an 1838
case, Kendall v. U.S.
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debt payment.

“To contend that the obligation imposed on the President to see the
laws faithfully executed, implies a power to forbid their execution,
is a novel construction of the constitution, and entirely
inadmissible,” the justices wrote.

During his cutting spree, Nixon’s own Justice Department argued
roughly the same.

“With respect to the suggestion that the President has a
constitutional power to decline to spend appropriated funds,”
William Rehnquist, the head of the Office of Legal Counsel whom Nixon
later appointed to the Supreme Court, warned in a 1969 legal memo,
“we must conclude that existence of such a broad power is supported
by neither reason nor precedent.”

* Donald Trump
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* Budget
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* impoundment
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* power of the purse
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* Congress
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