Federal law gives Congress power over funding, yet White House has a different view, some say
After bipartisan pressure, the Trump administration on Friday said it would release to the states billions of dollars in federal funds for education programs that it had previously frozen pending “review.”
The Office of Management and Budget previously said the programs, which include teacher development and English language learning, promoted a “radical leftwing agenda,” according to multiple press reports.
But the money was appropriated by Congress and, critics argue, under the Impoundment Control Act, should be used for the programs as intended.
The fight over education funding has been waged as President Donald Trump continues to reshape the federal government with job cuts and changes in federal spending. At the core of the battle is who holds the purse strings—the legislature or the president, says Robert Bradner, a partner in the Washington, D.C., office of Holland & Knight.
He joined the firm’s federal practice in 2000 after 13 years in government service and says that “the underlying theme is a steady erosion of congressional power.”
In addition, says Bradner, there’s “a steady expansion of executive power that has been going on for several decades and now, the Trump administration has been putting that on steroids.”
The Impoundment Control Act was passed in 1974 as a reaction to President Richard Nixon’s repeated rerouting of funds appropriated by Congress. The law reasserted Congress’ power over federal funding and established budget committees in both houses, along with the Congressional Budget Office. In addition, it set up public procedures the president “must follow when implementing congressionally appropriated funds,” says Rachel Snyderman, managing director of economic policy at the Bipartisan Policy Center.
She adds that the law outlines the modern appropriations process, which is one of the “last bastions of bipartisan policymaking.”
“If this process breaks down or becomes hyper-politicized, we risk losing not just bipartisan cooperation, but also basic governmental stability—which would ripple across every community in everything from national security to food safety to infrastructure projects,” Snyderman says.
‘Very real concern’
Russell Vought, director of the U.S. Office of Management and Budget, has said that the Impoundment Control Act is unconstitutional because it limits the president’s inherent authority to refrain from spending funds. OMB officials did not return several requests for comment.
David A. Super, the Carmack Waterhouse Professor of Law and Economics at Georgetown University Law Center, says that nothing in the U.S. Constitution or in the history of its formation supports Vought’s views. In addition, Super says litigation over the Trump administration’s cuts in spending is likely to focus on “substantive constraints on impoundments,” which come from statutes authorizing specific programs or entities.
Another key issue, Bradner says, is that Vought not only believes the Impoundment Control Act is unconstitutional, he also believes that “when Congress appropriates funding, that appropriation is a ceiling on how much money the administration can spend on that activity, not a floor.”
Bradner adds that Vought’s point of view “is very different from the conventional wisdom” when it comes to how to interpret the powers given to the president under the Constitution.
The Impoundment Control Act also establishes a way for the president to request that Congress reconsider funding it enacted. The president can ask Congress to rescind certain funds and, once the request is made, can defer spending the money for up to 45 days. If Congress doesn’t approve, the funds must be spent.
The White House could use the Impoundment Control Act to dry up federal funding by waiting until closer to Sept. 30, the end of the fiscal year, to formally ask Congress to rescind certain funds, according to Bradner. The request would trigger the 45-day freeze on funds, and then the fiscal year would end without the money ever being spent, he adds.
While there’s dispute about the legality of the strategy, called a pocket recission, the White House attempting it is “a very real concern,” according to Bradner.
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