During his first term, Trump was impeached after refusing to spend money for Ukraine approved by Congress, as he pushed Ukrainian President Volodymyr Zelensky to provide incriminating evidence about the Biden family. At the time, Trump’s aides defended his actions as legal but largely did not dispute that the president is bound to adhere to budgetary law.
Since then, however, Trump and his advisers have prepared an attack on the limits on presidential spending authority. On his campaign website, Trump has said he will push Congress to repeal parts of the 1974 law that restricts the president’s authority to spend federal dollars without congressional approval. Trump has also said he will unilaterally challenge that law by cutting off funding for certain programs, promising on his first day in office to order every agency to identify “large chunks” of their budgets that would be halted by presidential edict.
“I will use the president’s long-recognized Impoundment Power to squeeze the bloated federal bureaucracy for massive savings,” Trump said in a plan posted last year. “This will be in the form of tax reductions for you. This will help quickly to stop inflation and slash the deficit.”
That pledge could provoke a dramatic constitutional showdown, with vast consequences for how the government operates. If he returns to office, these efforts are likely to turn typically arcane debates over “impoundment” authority — or the president’s right to stop certain spending programs — into a major political flash point, as he seeks to accomplish via edict what he cannot pass through Congress.
“What the Trump team is saying is alarming, unusual and really beyond the pale of anything we’ve seen,” said Eloise Pasachoff, a budget and appropriations law expert at Georgetown Law School.
The Trump campaign defended its proposal, saying Washington must cut spending to reduce the national debt, which has surpassed $30 trillion and is set to keep growing over the next decade. But the Trump campaign has ruled out cuts to the Defense Department, as well as to Social Security and Medicare, programs for the elderly that are the main drivers of the nation’s rising spending. The debt grew by more than $7 trillion during Trump’s administration.
“As many legal and constitutional scholars have argued, executive impoundment authority is an important tool that American presidents used throughout history to rein in unnecessary and wasteful spending,” Trump spokesman Jason Miller said in a statement. “President Trump agrees with the experts that this power has been wrongly curtailed in recent decades. As he works to curb Joe Biden’s colossal spending binge that triggered uncontrolled inflation, President Trump will seek to reassert impoundment authority to cut waste and restore the proper balance to spending negotiations with Congress.”
Longtime Trump allies have in recent months discussed potential targets to test executive impoundment authority, including green energy subsidies approved by President Biden as part of the 2022 Inflation Reduction Act and funding for the World Health Organization, according to two people who spoke on the condition of anonymity to reflect private conversations. Trump officials regard both programs as wasteful.
Trump last week also without explanation told Fox News that he would “end” the Education Department and cut unspecified environmental agencies. These actions would happen “immediately,” he said — although a spokesman said he would not use his impoundment authority to do so.
“This is definitely something a lot of people are currently talking about within Trump circles,” said Avik Roy, founder of the Foundation for Research on Equal Opportunity, a think tank that pushes free markets, and a former adviser to leading GOP policymakers.
A third Trump ally, who also spoke on the condition of anonymity to relay private discussions, said former administration officials have also discussed using new impoundment authority to scrap international aid programs approved by Congress.
“It’s an idea that’s being floated pretty broadly as a tactic to do other things, and particularly to defund some parts of the government,” the ally said.
Legal scholars say Trump’s threats, depending on how they are carried out, could violate the Constitution and usurp congressional authority by consolidating more power in the executive branch. The former president has vowed to massively expand the White House’s power in other ways as well, outlining a vision that also includes mass deportations, purging the federal workforce and deploying the military domestically to fight crime and break up gangs.
“A blanket unconditional impoundment is clearly unconstitutional, and that would obviously create a crisis between the two branches” of government, said Sen. Chris Van Hollen (Md.), a top Democrat on the Senate Appropriations Committee. “ … It seems like Donald Trump is actually trying to redo his first administration, except on steroids, even worse, shredding the Constitution even further. I think the American people recognize the dangers and hopefully they’ll recognize that for this election.”
Presidents since Thomas Jefferson have halted spending for programs approved by Congress. That typically has not proved controversial, because presidents have traditionally done so for routine managerial reasons or with specific statutory authorization, not to thwart the policy choices Congress made in appropriations laws.
But President Richard M. Nixon faced an uproar after he refused to spend money across a broad array of domestic programs, such as farm assistance and water grants. In 1969, working in the Justice Department’s Office of Legal Counsel, the future Supreme Court chief justice William Rehnquist wrote a memo arguing that the president does not have unilateral authority to refuse to spend appropriated funds, while reserving the possibility of limited exceptions for foreign policy and other policy areas. Federal courts struck down Nixon’s impoundments as illegal, and Congress approved strict new limits on the power as part of post-Watergate government reforms in 1974.
During Trump’s first term, his allies grew increasingly frustrated with those limits. On Jan. 19, 2021, just two days before Trump left office, Russell Vought, then Trump’s budget director, slammed the “onerous” 1974 law as promoting “the very opposite of what good government should be” and fostering a culture of “wasteful and inefficient spending.” The letter also said every administration from the era of the Great Depression to Nixon impounded funds.
“Presidents had the ability to impound funds for 200 years until a bad law got passed that we think is unconstitutional under President Nixon,” Vought said on Trump adviser Stephen K. Bannon’s podcast last year. “We want to go back in a different direction.”
If he does win in November, Trump’s ability to impound government funds could depend on who controls Congress, which also will be decided by this fall’s elections.
Rep. Tom Cole (R-Okla.), the chair of the House Appropriations Committee, said letting Trump assert more control over spending could give the GOP more leverage in budget negotiations and characterized impoundment as a “tool in the toolbox.” But Cole added that he hoped Trump would work with legislators to cut spending.
Sen. Mitt Romney (R-Utah), the lone Republican to vote to convict Trump in his first impeachment trial over Ukraine spending, said he could not object until he sees how Trump uses impoundment in practice.
“There are places I’m sure where Congress suggests that money ought to be spent and a president could determine that’s wasteful and inefficient and it would be appropriate not to spend it all,” Romney said.
Other GOP lawmakers balked at the suggestion that Trump could consolidate more spending authority in the executive branch. Republicans have castigated Biden’s efforts to cancel hundreds of billions of dollars in student debt as unconstitutional, a possible parallel to Trump’s plans.
“I think all too often already the Biden administration is showing they’re not following the law as we put it down, and they’re taking regulatory fiat and executive orders to a level that is very problematic and increasing the deficit,” said Sen. John Hoeven (R-N.D.), a member of the Senate Appropriations Committee. “ … So no, I am not interested in giving them more power. I’m more interested in giving them less power.”
