Culturalism

The Impoundment Act Is Unconstitutional

Trump broke the law.

That’s the shrill new screech echoing in the footsteps of the GAO report, which claims his administration was a bit naughty when it withheld foreign aid to the government of Ukraine. According to the GAO, this constitutes a violation of the Congressional Budget and Impoundment Control Act of 1974.

Of course this output presents a critical question: how has the federal law on impoundment not been ruled unconstitutional?

As a bit of background, the legislation was passed under the administration of President Nixon to curtail congressional rage over his “setting aside” of money he did not believe in spending. To be clear, Nixon was not vetoing the spending, but simply declining to release it for specific programs.

The Act simply represented another attempt by Congress to keep the coffers flowing and hamstring the president into agreeing to “all or nothing.” We see the consequences regularly today with Trump signing massive spending bills because there is no way to pick and choose based on practicality or need.

Supporters of impoundment restrictions will point to the alleged supremacy of the legislature, but history undermines them sharply if we assume the branches are co-equal.

For instance, Congress passed the Line Item Veto Act of 1996, giving the president power to pick and choose what he would accept from appropriations. Bill Clinton used this mechanism 82 times to help bring the budget under control, but the legislation was struck down by a liberal-conservative SCOTUS majority in Clinton v. City of New York, which concluded that the president must to accept all or nothing with spending bills.

In his dissent, Justice Stephen Breyer noted:

“does not violate any specific textual constitutional command, nor does it violate any implicit Separation of Powers principle.”

Now, if we stick with the court’s majority opinion that Congress’ power to spend cannot be moderated or limited save on a “take it or leave it” basis without a constitutional amendment, then how exactly is it permissible for them to turn around and restrict the president’s power to release funds using only a legislative act?

It’s time to challenge the Impoundment Act before the Supreme Court.