Pickpocketing the Power of the Purse

Former President Richard Nixon is remembered mostly for the egregious abuses of power that he committed while in office — from Watergate and the carpet bombing of Cambodia to his various attempts to weaponize the government against his “enemies.” The common thread uniting these disparate acts, aside from the obvious criminality, was Nixon’s notoriously expansive interpretation of executive power. The 37th president carried out these and many other abuses with the conviction that he was acting well within his rights as the president of the United States.

Nixon was equally certain of his presidential authority when he refused to disburse billions in funds that had been legally appropriated by Congress — a power commonly known as “impoundment.” While Nixon’s use of this power is little more than a footnote in most histories of the era, at the time it stirred massive controversy in Washington and triggered a fierce backlash in Congress, where members saw it as an encroachment on their power over the purse. Indeed, the president’s excessive use of impoundment eventually prompted Congress to pass the 1974 Impoundment Control Act. One of the first legislative reforms passed in response to Nixon’s presidential abuses, the ICA prohibited unilateral impoundments and established a framework for the president to request budget “rescissions” from Congress, essentially giving him or her the right to request impoundments from Congress, which could then approve, deny or simply ignore those requests. 

In addition to provoking the ire of Congress, Nixon’s impoundments were also repudiated by the courts. “Every court to consider President Nixon’s actions on the merits found them to be unlawful,” Georgetown law professor David Super recently told me. The administration’s constitutional arguments fared so poorly that by the time one of its impoundment cases finally reached the Supreme Court in 1974, the president’s lawyers had all but given up on trying to justify the practice in constitutional terms, instead arguing that it was statutorily justified. Even then, however, the court still ruled unanimously against the administration for its refusal to disburse funds for the Clean Water Act, which Congress had passed over Nixon’s veto. Like almost all of his constitutional theories about executive power, then, Nixon’s argument for impoundment failed miserably in the courts.

In the 50 years since, the practice of impoundment has virtually ceased to exist. Though some presidents (Ronald Reagan and Bill Clinton in particular) put forward “rescissions” for congressional approval, the last package to make it through both the House and Senate came about a quarter-century ago. Most importantly, no president has seriously attempted to flout the law or upend the legal consensus on impoundment since it was established over half a century ago. 

But that could soon change. Indeed, if recent comments from senior Trump officials are anything to go by, the current administration looks increasingly set on restoring the executive power that was curtailed half a century ago. More than anyone else, President Donald Trump’s powerful director of the Office of Management and Budget, Russell Vought, has openly touted the practice as a legitimate executive tool that the current administration intends to use. For some cuts “we have executive tools, we have impoundment that 200 years of presidents had the ability — and the recognition that they had the ability — to spend less than the ceiling,” he recently said. 

Echoing Nixon, Vought has argued that the president has the constitutional authority to impound funds, whether or not Congress approves. Thus, according to the budget director and his allies, the ICA is unconstitutional and Nixon was well within his right to impound as much as he wanted. “Viewed in historical context,” wrote the authors of an essay published at Vought’s think tank, Center for Renewing America, Nixon’s “aggressive use of the Executive’s impoundment authority was well within constitutional understanding and practice going back to the Founding,” while the ICA was the “norm-breaking, unprecedented, and unconstitutional” act.

This historical narrative has little actual support among constitutional scholars and has been picked apart in exhaustive detail by the nonpartisan group Protect Democracy. According to Super, Vought “greatly overstates the historical record,” which suggests the opposite of what he claims. While there was some historical precedent for impoundment before Nixon, it is widely agreed that he abused the power by ignoring statutes and engaging in what has been called “policy impoundment,” essentially using the tool to defund programs that he opposed. The vast majority of historical examples cited by Vought’s own think tank were cases in which Congress “expressly gave the president discretion about whether to spend money,” said Super. In contrast, Nixon defied the will of Congress and used impoundment to withhold billions of funds that had been mandated for specific programs.

Zachary Price, professor at the University of California College of the Law in San Francisco, agreed with Super. Although there was “a practice of impoundment,” he said, “the practice did not involve clear assertions of constitutional authority that defies any mandate. It generally happened within what statutes allowed rather than in defiance of them.” 

Though Vought likes to paint the Impoundment Control Act as an unconstitutional breach of the president’s authority to withhold funds, according to Super, that is “very much a distraction,” as the 1974 law is “not the primary legal authority prohibiting presidential impoundments.” Rather, it is the Constitution and “the individual statutes authorizing government programs and appropriating money for them,” as repeatedly affirmed by the courts. As a candidate, Trump promised to “take action to challenge the constitutionality” of the law and restore impoundment power. But even if the administration takes its case to the Supreme Court, it is unlikely to fall under the 1974 law. “When the Supreme Court hears a challenge to President Trump’s impoundments, it almost certainly will not be brought under the ICA, but rather under the particular authorizing or appropriations acts that his impoundment violates,” said Super. 

Vought surely knows that his constitutional arguments for impoundment were laughed out of the courts half a century ago, though he seems to believe that today’s legal establishment will be more receptive to the arguments once advanced by Nixon. Still, the administration is taking a more cautious approach and trying to work within the ICA framework by putting forward “rescissions” for congressional approval. This month, the administration submitted its first rescission package, which proposes to clawback $9.4 billion of appropriated spending, including $8.3 billion cuts in foreign aid and $1.1 billion cuts for public broadcasting that were initially proposed by DOGE. Though House Republicans narrowly approved the package this month, it faces an uncertain path in the Senate, which has until next month to approve. If successful, this would be the first rescissions package to make it through Congress since 1999 and would probably be followed by many more requests. 

If, on the other hand, the rescissions package fails, Vought has floated what some call “pocket rescissions,” which effectively bypass congressional approval by submitting packages at the end of the fiscal year, whereupon they expire. This legally questionable practice would basically restore full impoundment power to the president. The Government Accountability Office, which supervises the implementation of the ICA, has explicitly rejected the legality of pocket rescissions, which it says intentionally “frustrate the design” of the law. But this is unlikely to stop the administration. Vought has already said that the administration will ignore the GAO’s finding when it comes to impoundment after the independent legislative agency issued a report last month stating that the administration had violated the ICA by withholding billions in funding for electric vehicle stations mandated by the 2021 Bipartisan Infrastructure Act. Congress, Vought recently said, will not stop the administration from “banking the DOGE cuts.” 

This willingness to sidestep Congress underscores the budget director’s ruthless drive to enact the administration’s agenda. He has shown no qualms about ignoring the law or defying another branch of government in order to carry out his policy vision, even as he cloaks his overreach in the language of constitutional authority. 

Not surprisingly, Vought has emerged in recent years as one of the most zealous proponents of constitutional theories that vest the president with virtually unchecked, quasi-monarchical power. In an influential 2022 essay, he argued that modern America is currently in a “post-constitutional” moment. Rejecting the legitimacy of the constitutional “regime” that has developed over the last century, Vought proposed a “radical constitutionalism” that would “throw off the precedents and legal paradigms that have wrongly developed over the last 200 years.” Above all, Vought hopes to restore the great powers that he believes the president is rightly endowed with by the Constitution, which would enable the administration to carry out its agenda unobstructed by either Congress or the courts. 

Vought insists that his view of executive power is faithful to the original vision of the founders, when in fact it’s just a rehash of the discredited theories that were rejected in the courts decades ago. In Nixon’s mind, even his most flagrant abuses of power bore the seal of constitutional legitimacy. He truly believed that “when a president does it, it’s not actually illegal” (a belief that has since been granted a new life by the Supreme Court). As the historian Arthur Schlesinger Jr. observed in his timely book “The Imperial Presidency,” Nixon was the first president to “profess the monarchical doctrine that the sovereign can do no wrong.”  

It was to the nation’s great benefit that both Congress and the courts firmly rejected this constitutional vision and stood up to the “crook” in the White House. Will they show the same resolve today? We’ll find out soon enough.