So the president can't spend more money than Congress has agreed and voted to spend. But can the president spend less money than Congress wants?It all comes down to something called "impoundment" and the Impoundment Control Act of 1974, which controls when and how a president can take away money Congress has appropriated.President Trump followed the Impoundment Control Act rules back in 2018. But now, in his second term, he's saying he thinks that law is unconstitutional.On this episode: the history of impoundment, from Thomas Jefferson to Richard Nixon and Bill Clinton. And what constitutional scholars and judges are saying after Trump attempted to dismantle a federal agency and freeze trillions in federal funding that goes to states for everything from new school buses to public health research.We've got more about impoundment in the latest Planet Money newsletter.Check out The Indicator's episodes on the gutting of USAID and how American farmers are affected in USAID cuts. And, our previous episode on the big government money pipe that's being closely watched right now.Find more Planet Money: Facebook / Instagram / TikTok / Our weekly Newsletter.Listen free at these links: Apple Podcasts, Spotify, the NPR app or anywhere you get podcasts.Help support Planet Money and hear our bonus episodes by subscribing to Planet Money+ in Apple Podcasts or at plus.npr.org/planetmoney.Learn more about sponsor message choices: podcastchoices.com/adchoicesNPR Privacy Policy
Chapter 1: What is the purpose of this episode?
This is Planet Money from NPR.
President Donald Trump has attempted to dismantle a federal agency, USAID, the Agency for International Development. He's attempted to freeze billions of dollars in grant money that goes to states for everything from new school buses to paying for the health benefits of child care workers, wildfire prevention. He's attempted to freeze federal funds for medical and public health research.
And now whether Trump has the power to cut off money that has been appropriated by Congress is being litigated by the courts. Several judges have blocked big parts of Trump's efforts, ordered the administration to release the funds they froze, though there have been many examples of funds not being released. And, you know, the Constitution says,
it's pretty clear that Congress has the power of the purse. Congress decides how much money the U.S. spends. So generally, it's been understood that the president cannot spend more money than Congress has agreed and voted to spend. But can the president spend less money than Congress wants? Hello and welcome to Planet Money. I'm Sarah Gonzalez. And that is the thing being debated right now.
Chapter 2: What is impoundment and how has it been used?
Whether a president can spend less than Congress wants comes down to something called impoundment and the Impoundment Control Act. Basically, when and how a president can impound funds like take money away that have already been appropriated. Today on the show, what is impoundment? How has it been used in the past?
And what do the judges and legal scholars who study the Constitution and impoundments in particular have to say about the legality of what the Trump administration is trying to do? When the Trump administration ordered all of the funding freezes, it upended thousands of contracts, including with U.S. businesses and nonprofits. For example, U.S. farmers grow a lot of the corn and soy and food that
Chapter 3: How did President Trump challenge Congress on spending?
the agency USAID sends to other countries. Last week, the USAID Office of Inspector General released a report that said that half a billion dollars worth of food was at risk of just spoiling in warehouses, at ports, in transit. The USAID Inspector General was fired the day after that report came out. Now, the U.S. Constitution says that the president has a duty to take care of
that laws be faithfully executed. And when Congress debates and decides to fund something, that's a law. But before Trump was reelected, he was saying that he didn't think Congress had the final say here. In a campaign video, Trump said that as president, he should have the power to not spend money that Congress has appropriated.
For 200 years under our system of government, It was undisputed that the president had the constitutional power to stop unnecessary spending through what is known as impoundment.
Impoundment. Trump was saying that he should be able to impound the money.
Very simply, this meant that if Congress provided more funding than was needed to run the government, the president could refuse to waste the extra funds and instead return the money to the general treasury. Okay.
We should note that the system kind of already allows for this, according to a legal scholar we spoke to who said that, you know, if the government can get the job done with less money than Congress appropriates, that's totally OK sometimes. So, like, if Congress appropriates $15 billion to build a new building,
aircraft carrier, but the contractor can get it done for, I don't know, $14 billion, that's fine. The federal government is not going to be like, oh, no, no, no, you must charge us the full $15 billion, right? The important thing is that the aircraft carrier that Congress wanted just has to get built.
A president cannot override Congress and say, well, you know, I as president don't think we should even have an aircraft carrier at all. At least, that is what the Impoundment Control Act of 1974 says. It's the law that controls the president's impoundment power. But Trump thinks that law is unconstitutional.
This disaster of a law is clearly unconstitutional, a blatant violation of the separation of powers.
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Chapter 4: What historical examples illustrate impoundment?
Yeah, the actual law said Thomas Jefferson could order, quote, a number not exceeding 15 gunboats using, quote, a sum not exceeding $50,000. So baked into the law, it was always optional.
So a lot of examples have that sort of character. And that's not really, Jefferson would say, I'm just faithfully executing the statute, or at least you can understand what he's doing that way.
So you're saying that all the examples of times that presidents used impoundment, there was always some little language that was like a little bit more like, you don't have to spend all this money, you just can spend up to this amount.
It's not always quite as clear as Jefferson. But, you know, you do have a pattern of examples sort of like that.
Historically, Zachary says, presidents weren't making the argument that they have the constitutional power to override Congress and impound funds.
Generally, presidents weren't really making that argument there instead involved in a kind of back and forth with Congress.
Zachary says presidents would just kind of be like, come on, Congress, let me do this. And then Congress would give in. Like there was spending for rivers and harbors that Ulysses S. Grant thought was wasteful. There was money for a weapons program that John F. Kennedy didn't want to spend after World War II. But in both cases... After some controversy, Congress just gave in to the president.
So in that way, yeah, Zachary says there was this like tacit approval by Congress to sometimes not spend money. But it's not like there was a place where all the rules were spelled out around this one way or another. That didn't happen until Richard Nixon became president, because Richard Nixon took impoundments to a whole new level.
Well, the distinction with Nixon is also the frequency and the scope at which he impounded funds. I mean, in 1973, he impounded nearly one third of all discretionary spending.
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Chapter 5: What distinguishes Nixon's use of impoundment?
The president cannot spend more than Congress appropriates, but they don't think there's a floor. For this, I called up a law and economics professor. Do your students call you Professor Super? Yes. Nice. Wade, say your name and title.
I'm David Super, and I teach law at Georgetown.
David Supra studies the Constitution, teaches legislation, and he actually had the Empowerment Control Act on his syllabus when all the funding freezes happened.
So as a teacher, I couldn't be more grateful for their timing with this. As a lawyer and a citizen, I'm troubled by it.
So, OK, what about this constitutional claim that the Trump team is making? Is there a place in the Constitution that says like, yeah, you can't spend more, but like, yeah, you could spend less. Or is there a place in the Constitution that says like you cannot spend more and you also cannot spend less?
Like, is there validity to their claims that like it doesn't say in the Constitution that there's a floor, which is like what the argument is, right? Like the ceiling is there. Don't spend more. But is the floor there?
Yeah, the floor is there. The floor is there in the laws that say you must spend this money. And in the Constitution, it says you must take care that the laws be faithfully executed. You're not taking care that the laws be faithfully executed if the law says spend a million dollars and you refuse to do so.
David, and a long, long line of legal scholars and judges appointed by Republicans, by Richard Nixon and Donald Trump, have said that the Constitution does give Congress the power to set even a spending floor.
Supreme Court Justice Brett Kavanaugh, who Trump appointed back when he was an appellate judge, he wrote that, quote, even the president does not have unilateral authority to refuse to spend. But Trump's legal team has said that the Supreme Court hasn't provided the final word on whether a president has constitutional empowerment power, like inherent power
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