Constitutional challenge over spending power should be limited to executive powers – CEI analysis
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Following his inauguration, President Donald Trump has made it known he intends to reduce federal spending. But a 1974 law called the Impoundment Control Act stands in the way because it prohibits the president from unilaterally reducing spending that Congress has required through the appropriations process.
In a new paper, CEI attorney Devin Watkins reviews the history of spending disagreements between the president and Congress and analyzes the legal implications of the Impoundment Control Act of 1974.
The law creates a process whereby the President can request Congress to rescind money that Congress has required the president to spend. The law forbids the president from blocking the spending in question if Congress doesn’t act on the president’s recession request within 45 days.
Watkins lays out other exceptions to the limits imposed by the law on the president’s discretion, including:
- When other statutes require trigger points before the spending can occur. These are called “programmatic delays” and are not violations of the Impoundment Control Act.
- The Impoundment Control Act does not repeal other statutes that provide executive discretion in the spending of funds.
- Some statutes are ambiguous as to what they fund or how much they fund, and the president must exercise discretion to faithfully execute the law.
- When the president believes a statute is unconstitutional, he has a higher duty to the Constitution than to any appropriations statute and could decline to spend such money until ordered by a court.
When campaigning for office, then-candidate Trump said he would “do everything I can to challenge the Impoundment Control Act in court, and if necessary, get Congress to overturn it.” So, what are the prospects for a legal challenge to the law?
“President Trump could argue that all of the Impoundment Control Act is unconstitutional, but he is unlikely to be successful unless he limits such claims to executive powers that only he controls,” said Watkins.