A constitutional controversy is emerging over the president's authority to withhold funds appropriated by Congress. The Trump administration, along with Elon Musk’s Department of Government Efficiency (DOGE), has been pushing for reduced federal spending and dismantling programs without legislative approval. This has sparked a debate about whether the president can unilaterally override Congress's spending directives, a power known as "impoundment." While some argue that this power is unconstitutional, others claim it is an inherent presidential right. This article explores both sides of the argument and examines the historical context surrounding this issue.

The Case for Presidential Impoundment Power

Advocates for presidential impoundment argue that this power was historically accepted and only restricted in 1974 with the Impoundment Control Act. They contend that the Constitution grants the president discretion in spending decisions. For instance, they cite examples from early presidents like Thomas Jefferson, who declined to spend allocated funds for gunboats, and Ulysses S. Grant, who withheld infrastructure funds. These actions, they claim, were widely accepted by Congress at the time.

Proponents of impoundment, such as Mark Paoletta, former general counsel of the Office of Management and Budget (OMB), have published legal memos asserting that the president has the authority to refuse to spend money appropriated by Congress. They argue that until Richard Nixon's presidency, impoundment was a common practice. Nixon's extensive use of this power during the early 1970s led to the enactment of the Impoundment Control Act, which they view as an unconstitutional encroachment on executive authority. According to these advocates, the law violates the separation of powers by limiting the president's ability to manage the budget effectively.

The Constitutional Case Against Impoundment

Opponents of presidential impoundment maintain that the Constitution clearly assigns the power of the purse to Congress. Legal scholars and jurists, including William Rehnquist and Brett Kavanaugh, have emphasized that the president must faithfully execute all laws, including those that direct specific spending. The Supreme Court has also ruled on this matter in cases like Train v. City of New York, where it unanimously decided that the president cannot withhold congressionally mandated funds.

David Super, a professor at Georgetown Law, points out that the Constitution requires the president to ensure laws are faithfully executed. If Congress allocates funds for a specific purpose, the president must spend that money. Super argues that the historical instances of impoundment cited by supporters do not align with their interpretation. For example, Jefferson's refusal to spend on gunboats was within the discretionary limits set by Congress. Similarly, Zachary Price, a law professor at UC San Francisco, notes that early presidents often acted within the bounds of congressional intent, not in defiance of it. The Impoundment Control Act, therefore, represents a necessary check on executive power rather than an unconstitutional restriction.