The President can't refuse to spend government funds: "Impoundment" and "Rescission"

The Trump Administration will reportedly make a “rescission request” to Congress to permanently decrease NPR and PBS's partial government funding

Since January 20, the Trump Administration has been cutting federal spending. The thing is that, once Congress appropriates funds and the President signs those appropriations into law (which President Trump did on March 15), the Executive Branch can’t just refuse to spend the funds. Such a refusal is called impoundment, and there’s a law to prevent it. Now the Trump Administration may seek to make those cuts legal through a process that can’t be blocked by the Senate filibuster.

Yesterday, for example, Trump signed an executive order halting direct and indirect funding to National Public Radio (NPR) and the Public Broadcasting Service (PBS), which receive taxpayer funds through the government-run government-controlled Corporation for Public Broadcasting (CPB). (It’s a small portion of NPR and PBS’s funding.) But CPB must spend the money it has been appropriated by law. But Trump must allow CPB access to the funding specified in law.

On April 14, the New York Post reported that the Trump Administration will make a “rescission request” to Congress to permanently decrease funding to the CPB, the foreign aid agency USAID, and a few other agencies.

Impoundment Law

The Impoundment Control Act of 1974, passed after President Nixon made several attempts to control policy by refusing to spend appropriated funds, codifies that the appropriations power — how much agencies are to spend — belongs to Congress and not the President, just as the Constitution says.

“No officer or employee of the United States may defer any budget authority” (2 U.S. Code § 684(b))

There are exceptions to Congress’s power over appropriations, of which one is rescission. The key to the exception, though, is that Congress must approve it.

But so far the Trump Administration has bypassed Congress in its efforts to decrease the size of the federal government. Examples include requiring agencies cut their staff, refusing to authorize grant money that’s already been awarded, attempting to reorganize agencies, and in some cases like with USAID and IMLS, all of these at once. Without a Congressionally-approved rescission, permanent cuts like this are illegal. (And that’s not even considering the separate laws that require the existence of these agencies and their functions.)

One outcome of the Trump Administration’s impoundments has been a flood of lawsuits against the administration. The cases are all still winding through the legal system and there have been mixed results. For example, the takeover of the U.S. Institute of Peace has largely gone forward as described in this Wired article. Included in the takeover was the firing of most of the staff and seizing the Institute’s building and all of its contents.

There hasn’t been any direct response from the Republicans in either chamber of Congress. As President Trump signed the Continuing Resolution into law last month that set federal spending levels for the rest of the fiscal year, he announced that he intended to ignore it and cut further. When the separate budget resolution passed, which sets spending/cutting targets for the coming Republican reconciliation bill, the last few House Republican holdouts were convinced to vote for it because they received assurances still more spending would be cut.

The impoundment concept has been challenged in court multiple times. In particular, the Supreme Court upheld the principles of the Impoundment Act in Train v. City of New York. In the 1990s, Congress gave President Clinton a line item veto: The President could issue vetoes for specific provisions inside legislation to cut spending directed by the legislation. But the Supreme Court found it unconstitutional in Clinton v. City of New York. The Trump Administration may challenge the Impoundment Control Act again.

How Does a Rescission Request Work?

The Administration writes the request and formally submits it to Congress. According to the New York Post, this one was to be submitted on April 28 when Congress returned from its last break. (We’d link to the text of the request, but it doesn’t appear to be publicly available yet on either Congressional or Executive sites.)

From April 28 (or when the request is formally received if it’s not that day), Congress has 45 days to pass the request in both chambers and send it to the President for signing. By focusing on entities strongly disfavored by Republicans like public broadcasting and radio and USAID, the package has a better chance of passing in the short time frame with only Republican votes.

Per the Impoundment Control Act, rescissions do not have to get past the 60-vote threshold for ending debate in the Senate (aka cloture/filibuster), so the Democrats have no way to prevent the rescission from getting the simple majority it needs.

What Happens to Appropriations in the future?

Republicans and Democrats in Congress will likely continue to work out appropriations deals each year to keep the federal government open, but now it will be on the assumption that the Trump Administration will make a rescission request to change that deal after the fact. Or perhaps the Administration will keep on violating the Impoundment Act, making Congress increasingly irrelevant.