Document Type

Essay

Publication Title

To Spend or Not to Spend: Strengthening Congressional Oversight on Executive Impoundment

Abstract

The [H]ouse of [R]epresentatives cannot only refuse, but they alone can propose, the supplies requisite for the support of government. . . . This power over the purse may, in fact, be regarded as the most complete and effectual weapon with which any constitution can arm the immediate representatives of the people, for obtaining a redress of every grievance, and for carrying into effect every just and salutary measure.

James Madison, Federalist No. 58[1]

While the President may initiate the annual federal budget process with his or her budget request, the Constitution confers the “power of the purse” on Congress alone. As Madison suggested, the Founders chose to place this power in the House of Representatives—the “immediate representatives of the people”—as a check on the “overgrown prerogatives of the other branches of government.”[2] This choice reflected a concern for the preservation of a separation of powers, the fundamental principle standing between the people and a tyrannical form of government.

“Impoundment”—the Executive’s refusal to spend funds appropriated by Congress—is perhaps one of the gravest threats to a functional separation of powers. Though examples stretch back as early as the Washington and Jefferson Administrations, and intensified during the Nixon Administration, President Trump in his first and second terms has wielded the tactic with unprecedented effect. From the first week of his second term, the Trump Administration has issued Executive Orders and internal memoranda pausing or cutting funding across federal programs, contracts, and grants in direct defiance of appropriations duly enacted by Congress. The result has led to uncertainty in federal fiscal policy, chilling of constitutional rights, and, in some cases, direct financial harm in the billions of dollars.

Decisions in Global Health Council v. Trump—a lawsuit involving the dissolution of USAID and the unilateral cancellation of approximately four billion dollars in federal budget authority—highlight the contemporary issues surrounding the Impoundment Control Act of 1974, a statute enacted in direct response to the Nixon era of impoundments. This Essay argues for several reforms to the extant statutory guardrails on the federal budget process, including (1) the creation of an express private right of action within the Impoundment Control Act to enjoin unconstitutional or illegal impoundment efforts, (2) enhanced precision in specifying the timelines for execution of federal appropriations laws, and (3) a clarification of the presumption of mandatory apportionment in the absence of clear congressional intent to the contrary.

[1]   The Federalist No. 58, at 303 (James Madison) (Gideon ed., 1818), https://oll-resources.s3.us-east-2.amazonaws.com/oll3/store/titles/788/0084_LFeBk.pdf [https://perma.cc/WNA5-TPCX].

        [2]   Id.

First Page

137

Publication Date

9-24-2026

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