The Impoundment Control Act is back in the news after President Trump demanded rescissions to the omnibus spending and COVID relief packages passed by Congress last week.
In a statement, the President said:
As President I am demanding many rescissions under the Impoundment Control Act of 1974. The Act provides that, “whenever the President determines that all or part of any budget authority will not be required to carry out the full objectives or scope of programs for which it is provided, or that such budget authority should be rescinded for fiscal policy or other reasons (including termination of authorized projects or activities for which budget authority has been provided), the President shall transmit to both Houses of Congress a special message” describing the amount to be reserved, the relevant accounts, the reasons for the rescission, and the economic effects of the rescission. 2 U.S.C. § 683.
I wrote about the Impoundment Control Act back in January, having raised it on the War Room: Impeachment show in December 2019.
Forgive the dated nature of the context vis-a-vis Ukraine, but I am pasting my January 2020 article in full for you to review, below. I will add the following piece of contemporaneous analysis of President Trump’s suggested use: it’s not going to do much.
The Act details how the President may send a “special message” to Congress about spending, on a line-by-line basis. But the Act does nothing to bind Congress’ hands in this sense, and as far as I can tell, they can simply reply (within 45 days) and say, “No, thanks Mr. President.”
And that’s precisely what they’ll do. Oh, and if you want someone to blame, look no further than Congressional Republicans including Kevin McCarthy and Lindsey Graham for misrepresenting the facts to the President over this weekend.
Read my original explainer, below:
The Government Accountability Office (GAO) this morning announced the Office of Management and Budget (OMB) – ostensibly under the direction of President Trump – broke the Impoundment Control Act (ICA) by not releasing funds appropriated by Congress for Ukraine.
But the ICA is scarcely an unchallenged piece of legislation, and indeed has faced pushback from the most liberal-left of presidents, and its premise has been undermined by America’s greatest historic figures.
The third U.S. President, Thomas Jefferson, was the first to push back against Congress’ power of appropriation, which the ICA further legally enshrined:
…Jefferson established the first faint outline of what years later became a major controversy. Reporting that $50,000 in funds which Congress had appropriated for fifteen gunboats on the Mississippi remained unexpended, the President stated that a “favorable and peaceful turn of affairs on the Mississippi rendered an immediate execution of the law unnecessary… .” But he was not refusing to expend the money, only delaying action to obtain improved gunboats; a year later, he told Congress that the money was being spent and gun-boats were being obtained.
Sound familiar?
It’s the same behavior President Trump is now accused of breaking the law over. A power that most U.S. governors still retain, and a power the Mayor of Washington, D.C. still has.
The impoundment of funds is also a measure a great many presidents and public figures have supported.
“Abe Lincoln, Franklin Roosevelt, Harry Truman, JFK, LBJ, Bill Clinton, the Bushes, John McCain, John Kerry, Al Gore, Pat Buchanan, Jeb Hensarling, Russ Feingold, Joe Lieberman, Judd Gregg, and not least both Paul Ryan… and Barack Obama” have all supported the power of the presidency to balance the spending power of Congress.
The Akron Law Review reported on President John F. Kennedy’s support for the same kind of hold President Trump is alleged to ordered on Ukraine aid:
President Kennedy’s major impoundment controversy centered about the RS-70, a long-range bomber. Congress appropriated nearly two times the amount that the President had requested, and Secretary of Defense McNamara refused to release the excess funds and emphasized that America’s missile deterrence capability combined with existing bomber strength was more than adequate.
Now, as I predicted on December 30th in Episode 93 of War Room: Impeachment, we’ll hear a lot of the Impoundment Control Act.
It was, effectively, legislation passed by a hyper-liberal Congress in order to punish President Richard Nixon.
In practice it means that even if the Commander-in-Chief feels his national and foreign policy goals are being hampered by Congressional spending, he no longer has power to stop it.
Writing for the Wall Street Journal in 2011, Pulitzer Prize winning journalist Daniel Henninger said the law should be repealed, and cited a number of arguments had in 1974, when Nixon – reeling from Watergate – failed to fight back against the encroachment of Congress on the President’s impoundment power.
Professor John Marini of the University of Nevada, Reno and the Claremont Institute wrote in his 1992 book The Politics of Budget Control:
“In passing the Budget and Impoundment Control Act, Congress sought to sidestep the president. Thus as an unidentified high-ranking OMB official claimed that the Budget Act with Title X (the procedure that limited the president’s ability to impound funds) is ‘encouraging the executive branch agencies to develop their own direct power relationship with appropriations subcommittees in Congress, at the expense of presidential control’. This trend, he added, ‘could lead to the creation of bureaucratic fiefdoms, answering more to Congress than to the President. What we are talking about here is Congressional government–and chaos.”
So the administrative state was born. Government spending, at Congress’ behest, spiraled wildly out of control.
As I have said before on War Room: Impeachment, much of this impeachment process is the “normal” power tussle between the president and Congress, and Speaker Pelosi, the GAO, and the media hyping the Impoundment Control Act is definitive evidence of this.
When the news media and GAO tells you Trump’s OMB “broke the law”, remind them they’re talking about a punitive law passed against Nixon, which fundamentally changed the intended role of the presidency (as proved by Jefferson’s use of impoundment) and birthed the “fiefdoms”, the administrative state, and brought uncontrollable pork-barrel spending to Congress.
