Republicans Seek to Unleash President’s Power to Not Spend

Sen. Mike Lee (R-Utah) on Capitol Hill. Anna Moneymaker/Getty Images

WASHINGTON—In a move that could give President Donald Trump more freedom to enact his agenda, Republicans are attempting to repeal a law that ties the hands of presidents who don’t want to spend particular funding appropriated by Congress.

Known as impoundment, the practice of declining to spend funds provided by Congress dates back to President Thomas Jefferson.

Since 1974, however, it has been tempered by the Impoundment Control Act (ICA).

Republicans in the House and Senate now want to repeal the ICA.

Sen. Mike Lee (R-Utah) and Rep. Andrew Clyde (R-Ga.) introduced Senate and House versions of their bill striking down the Watergate-era act.

The February legislation comes after House Appropriations Committee Democrats said that some of Trump’s executive orders violate the ICA by calling to delay funding to programs Congress enacted under President Joe Biden.

In an email to The Epoch Times, Clyde said he was hopeful he and his 25 original cosponsors in the House would offer “a strong, unified defense of President Trump’s constitutional impoundment authority.”

Lee told The Epoch Times in an email that the proposed repeal would “help restore the original separation of powers intended by the Founders.”

Defenders of impoundment trace it to Article II of the Constitution, which states the president “shall take care that the laws be faithfully executed.”

Lee described impoundment as “a longstanding presidential authority” used by presidents for more than a century and a half and grounded in the Constitution.

When it was passed in 1974, the ICA came alongside court decisions bearing on impoundment. All arose as President Richard Nixon sought to avoid spending water pollution funds allocated by Congress and to dismantle the Office of Economic Opportunity created by his predecessor.

Phillip Joyce, a professor of public policy at the University of Maryland who has written about the ICA, told The Epoch Times that the law “creates a process by which the president can propose the cancellation of budget authority.”

But that process curtails a president’s ability to avoid spending the money that Congress appropriates.

Irwin Kramer, an attorney and law professor who has criticized both the ICA and expansive presidential impoundments, told The Epoch Times that “as things stand today, you can’t really impound.”

Under the ICA, presidents have only two paths to try to impound funds. The first path lets the president impound funding temporarily, no longer than the remaining fiscal year. The possible reasons for such a deferral are limited.

The second path starts with the president asking Congress to impound funds permanently. The funding can then be frozen for 45 days of “continuous session” of Congress—in practice, about 60 to 75 or more calendar days. During that period, Congress can approve the request for a rescission of funding.

Government Accountability Office statistics show that during his first term, Trump requested 34 rescissions totaling $14.8 billion. Congress accepted none of them.

Lawyer Mark Paoletta described the ICA’s restrictions as “a norm-breaking overreaction in the wake of Watergate” in a 2024 article coauthored by Daniel Shapiro for the Center for Renewing America, a think tank founded by Office of Management and Budget Director Russ Vought. Paoletta is now the OMB’s general counsel.

President-elect Donald Trump's nominee for Office of Management and Budget Director, Russell Vought, ahead of his testimony before the Homeland Security and Governmental Affairs Committee on Capitol Hill in Washington on Jan. 15, 2025. Madalina Vasiliu/The Epoch Times

“The ICA,” Paoletta and Shapiro wrote, “is unconstitutional.”

Kramer told The Epoch Times in an email that both impoundment and the ICA raise constitutional issues.

“The Constitution does not provide the President with the power to impound funds appropriated by Congress, so it, like the ‘line-item veto,’ is unconstitutional,” he said.

The Supreme Court in 1998 struck down the Line Item Veto Act of 1996, finding that it overstepped constitutional bounds into Congress’s territory.

Kramer told The Epoch Times that the ICA is constitutionally questionable because of its deferral provision, which was struck down by a federal court in 1987. Though Congress amended that provision, Kramer believes it is still imperfect.

Joyce told The Epoch Times he sees impoundment as a challenge to the separation of powers.

A core issue is whether the president is simply saving money on something Congress has approved or enacting policy by cutting funding to programs.

“It’s actually hard for me to think of a more significant shift of power from the Congress to the president than permitting the president to refuse to spend money on those things that he doesn’t like,” he said.

In a statement, Senate Appropriations Committee Democrats said that “presidents don’t get to pick and choose which parts of laws they feel like following.”

Christopher Wlezien, a professor of government at the University of Texas at Austin who has also written about impoundment, voiced skepticism about Lee and Clyde’s measure.

“It would be difficult to pass and, even if it did get through Congress, would face scrutiny in the courts,” he told The Epoch Times in an email.

The question of how the higher courts—maybe even the highest in the land—would rule on an ICA repeal or impoundment generally is a live one, including for the lawmakers opposed to the 1974 law.

“I believe we’ll see this debate play out in the courts, which is why removing the roadblock that the ICA presents is so critical in our defense of President Trump’s power to impound funds,” Clyde said.

Joyce said he could picture a scenario “where there are challenges that get made and this goes all the way up to the Supreme Court,” with Trump or his allies who favor expansive impoundment prevailing.

Kramer told The Epoch Times that the Supreme Court “has never definitively settled the issue” of impoundment.

“The question becomes, are they going to take it?” he stated.

The Authority of Law statue outside the U.S. Supreme Court in Washington on Feb. 10, 2025. Madalina Vasiliu/The Epoch Times

He said he thinks some possible Trump administration impoundments or impoundment-like actions, like defunding the Department of Education without legislation, might be looked on with disfavor by the court.

Paoletta, the OMB’s general counsel, wrote in his 2024 article that the Supreme Court has not seriously reckoned with impoundment.

The opening of the article rests on a recent landmark ruling that bears on the president’s Article II powers: Trump v. the United States, decided in 2024, in which the Supreme Court held that the president enjoys expansive immunity for official acts.

Chief Justice John Roberts wrote that when a president exercises his authority under the Constitution, rather than as derived from an act of Congress, he enjoys great latitude.

“He may act even when the measures he takes are “incompatible with the expressed or implied will of Congress,’” Roberts wrote.