Trump plots to steal Congress's budget authority
Separation of powers for me, but not for thee.
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One of the strangest aspects in living in a declining democracy is that everyone is forced to learn about arcane areas of the law … if only to see them trampled by the despot.
The first Trump administration taught us about the Logan Act, the Federal Vacancies Reform Act, and the Presidential Records Act. Those were all about the limits of the president’s authority. Could Trump dispatch Mike Flynn to secretly negotiate with the Russian ambassador before taking office? Could he simply stack federal agencies with his cronies serving in an acting capacity and avoid Senate confirmation? Could he steal or destroy government records?
The answer was an enthusiastic “yes,” thanks to the Supreme Court, with an assist from Judge Aileen Cannon. In the name of ensuring that he can act “boldly” and “without hesitation,” six conservative justices gave the president unlimited authority to commit crimes without fear of prosecution. The imperial presidency is upon us.
But even that blank check isn’t enough for Trump and his enablers. To reshape society, they need the legislative and judicial branches to be more than supine. They need to steal Congress’s power, too. And so, while we’re learning about Trump’s plans to use recess appointments to sidestep the senate’s constitutionally mandated “advice and consent” role, we now have to learn about the Impoundment Control Act of 1974.
It all goes back to Nixon
The Constitution vests “the power of the purse” in Congress.
Article I, Section 8, Clause 1, AKA the Spending Clause, specifies that “Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States.” And Section 9 says that “No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law.”
Congress passes the budget and allocates government revenues as it sees fit — that’s just black-letter law. And so in 1972, Congress passed the Federal Water Pollution Control Act, allocating $5 billion for 1973, $6 billion for 1974, and $7 billion for 1975 for municipal sewer updates. President Richard Nixon tried and failed to veto the law, and, after it was passed, he instructed EPA Administrator William Ruckelshaus to allot "[n]o more than $2 billion of the amount authorized for the fiscal year 1973, and no more than $3 billion of the amount authorized for the fiscal year 1974.”
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The City of New York sued, and in a 1975 case called Train v. City of New York, the Supreme Court held that Nixon had no discretion to refuse to spend money allocated by Congress. Ruckelshaus was obligated to dispense the $18 billion over three years, despite Nixon’s strong belief that cities should simply live with rotting pipes.
And while that case was percolating through, Congress went one further and passed the Impoundment Control Act, to make it clear to Nixon that he should quit encroaching on their turf and monkeying with the budget.
Impoundment Control Act
Under the ICA, the president must either spend the funds obligated by the legislature, or come to Congress with a “special message” and explain why not. Congress then has 45 days to vote for rescission, rescinding the original allocation. If Congress doesn’t agree, or simply ignores the message, the funds must be spent as originally ordained. (Here’s a handy ICA fact sheet from the Dems on the House Budget Committee.)
Elon Musk and Vivek Ramaswamy, who clearly don’t know or care about the separation of powers, are currently promising to slash $2 trillion from the federal budget and delete entire federal agencies through their fake DOGE committee. But even in his first administration, Trump violated the ICA by withholding the defense allocation for Ukraine in 2019.
In his “perfect, perfect phone call,” Trump threatened to block funds needed to fend off Russian aggression unless President Volodymyr Zelenskyy agreed to “do us a favor” and announce a bogus corruption investigation of Joe and Hunter Biden.
That led to Trump’s first impeachment, along with a finding by the Government Accountability Office that the withholding had violated the ICA.
The ICA authorizes the deferral of budget authority in a limited range of circumstances: 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 …
In its response to us, [the Office of Management and Budget] described the withholding as necessary to ensure that the funds were not spent “in a manner that could conflict with the President’s foreign policy.” The ICA does not permit deferrals for policy reasons. OMB’s justification for the withholding falls squarely within the scope of an impermissible policy deferral. Thus, the deferral of USAI funds was improper under the ICA.
The day before Trump left office, the leaders of his Office of Management and Budget sent a snotty letter to House Budget Committee Chair John Yarmuth contesting the GAO report and insisting that the Constitution empowers the president to override congressional allocations and spend tax dollars as he wishes.
“[T]he Impoundment Control Act of 1974 (ICA) is unworkable in practice and should be significantly reformed or repealed,“ they wrote, protesting that “OMB used its apportionment authority to re-examine, within the discretion afforded by the relevant foreign aid statutes and appropriations, the manner in which such aid was provided, as well as ensure that foreign aid programs were executed consistent with the President's foreign policy objectives.”
That letter was signed by then-OMB director Russell Vought and the agency’s general counsel Mark Paoletta. And in recent weeks Donald Trump nominated both of them to come back and reprise their roles in his second administration.
Personnel is policy
Vought and Paoletta are deeply involved in conservative politics and have been for decades.
Vought, a self-described Christian nationalist, served stints at the Heritage Foundation and the Republican Study Committee. And Paoletta has been around long enough that he not only shepherded Justice Clarence Thomas through his confirmation hearings, but he also represented Ginny Thomas before the January 6 Committee — all of which endeared him to both Leonard Leo and Harlan Crow.
In short, these aren’t MAGA conservatives who spend all day online swapping Pepe memes; they’re movement conservatives, who seized on Trump as the vehicle to reshape American society.
In the Project 2025 manifesto, Vought wrote that the next OMB director (hint, hint) should wrest control of the federal budget away from nonpartisan bureaucrats and Congress.
“No Director should be chosen who is unwilling to restore apportionment decision-making to the [president’s political appointees’] personal review, who is not aggressive in wielding the tool on behalf of the President’s agenda, or who is unable to defend the power against attacks from Congress,” he explained. “The Director must ensure the appointment of a General Counsel who is respected yet creative and fearless in his or her ability to challenge legal precedents that serve to protect the status quo.”
If that language was too oblique, his “creative yet fearless” counsel was clearer in an opinion piece at The Hill.
“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,” Paoletta insisted. “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.”
Agenda 47
It’s a safe bet that Trump doesn’t know what the Impoundment Control Act is, but his campaign website promises to stick it to the deep state either by persuading Congress to repeal it by or simply ignoring it.
(Here he is babbling some nonsense about it in a video on his campaign website, in which he incorrectly refers to it as the Congressional Budget Act.)
“On Day One, President Trump will direct federal agencies to identify portions of their budgets where massive savings are possible through the Impoundment Power, while maintaining the same level of funding for defense, Social Security, and Medicare,” his site promises, perhaps hoping that random capitalization will convince the reader that “the Impoundment Power” is a presidential authority codified somewhere other than his Agenda 47 webpage.
As with most Trump products, it’s hard to decide whether this press release is the result of shoddy workmanship or deliberate obfuscation.
It insists that “Democratic administrations, such as those of Franklin Roosevelt, Harry Truman, John F. Kennedy, and Lyndon B. Johnson, also exercised the Impoundment Power,” adding that “Joseph Sneed, Deputy Attorney General under President Richard Nixon, explained that the use of executive impoundment ‘to promote fiscal stability is not usurpation; rather it is in the great tradition of checks and balances upon which our Constitution is based.’” Which is more or less true, but conveniently omits to mention that all that took place before the Supreme Court rejected Sneed’s argument and told Nixon to knock it off and fix the sewers.
“Agenda47: Using Impoundment to Cut Waste, Stop Inflation, and Crush the Deep State” inveighs against bloated government and spiraling deficits, while quoting a Wall Street Journal opinion piece that says 43 state governors have impoundment authority. All of which is (perhaps) interesting, but wholly irrelevant as a matter of law — state constitutions are not the same as the US Constitution.
The only thing that is relevant is whether the Supreme Court and a Republican Congress will let Trump get away with it. Will his legislative allies willingly surrender their power over the budget to him and his the DOGE bros? Will the Supreme Court let him shout “EMERGENCY!” and declare endemic problems like deficits and immigration to be crises that justify trampling the separation of powers completely? And if they do, will Americans even notice or care?
That’s it for today
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Thanks for reading.
Always remember to remind your republican leaders that none of this would be possible without their approval. They could have ended this upcoming nightmare years ago, even before the tRump years as they worked to cut law enforcement on white collar crime that the IRS went after.
Okay it’s 6 am and I’ve just read your notice before coffee. I didn’t get it all to sink in yet but it doesn’t sound good for us. Thanks (really)