Presidential Power of Impoundment

I received a link to a video by The Epoch Times discussing a little known constitutional concept known as “impoundment.”In short, the question on the table is, “Is the President of the United States (Executive Branch) required to spend every penny appropriated by Congress for a particular item provided by law.” According to the video, President Donald J. Trump states that when he returns to office, should he win the 2024 Election, he plans to resurrect the Presidential Power of Impoundment.

The issue is both simple, and complex, simultaneously. It is simple in its basic application, but the political class and judicial community have made it a very complex issue with their deceptive language and ideologically driven activities, interpretations, and rulings. To make sure all is understood I want the full context of the issue to be comprehended by you, the reader. So, in this article I will first lay some groundwork to make sure we fully understand each and every complexity of the issue, from its constitutional foundation, to its legislative demise.

First, let’s list the constitutional clauses related to the issue of the Presidential Power of Impoundment.

• Article I, Section 1 of the United States Constitution reads, “All legislative Powers herein granted shall be vested in a Congress of the United States.”
• Article I, Section 9, Clause 7 of the United States Constitution reads, “No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law.”
• Article II, Section 1, Clause 1 of the United States Constitution reads, “The executive Power shall be vested in a President of the United States of America.”
• Article II, Section 1 in the clause regarding the presidential oath: “I will faithfully execute the Office of President of the United States.”
• Article II, Section 3 in the second to last clause of the section the Constitution reads, “he shall take Care that the Laws be faithfully executed.”
• Article V of the United States Constitution provides for a process to amend the Constitution. Authorities or powers may not be altered, eliminated, nor created when it comes to the federal government unless it is proposed as an amendment either by Congress or the States, and then ratified by the States with three-quarters ratification.

In the United States, the Supreme Law of the Land is the United States Constitution. The clauses I provided above establish the following:

• The determination regarding where federal dollars are spent may only be established by law, which requires the full legislative process. In other words, how money is spent must be established by law which may be achieved by:
  • Bill proposal, approved by both Houses of Congress, and signed by the President.
  • Bill proposal, approved by both Houses of Congress, and vetoed by the President, but the veto was overridden by two-thirds of each House of Congress.
• Legislative Powers only belong to Congress, and Executive Powers only belong to the President of the United States, which in turn includes the entire Executive Branch (Departments, Agencies, and Officers who serve in the Executive Branch, of which the President serves as the chief executive).
  • Legislative Powers include the following:
    • The power to create law.
    • The power to modify law.
    • The power to repeal law.
  • The Executive Power includes the following:
    • The power to execute the law.

• The word “vested” in Article I, Section 1, and Article II, Section 1 means the following:
  • The power in question (legislative or executive) was legally transferred from the States to the branch of government listed in the clause. The States, as the parties of the social compact known as the U.S. Constitution, are the only entities that may transfer power, beginning with the Constitution’s first seven articles, and subsequently through the amendment process through which an amendment is not valid to all intents and purposes until it has been ratified by three-quarters of the States either by a vote by the State Legislatures, or by conventions.
  • The power in question (legislative or executive) is exclusionary to the branch indicated in the clause which is a concept we know as a Separation of Powers. In short, only the Congress possesses the power to legislate, and only the President and his Executive Branch possesses the power to execute the laws and all of the necessary and proper actions that accompany the power to execute the laws.
  • The power in question (legislative or executive) is irrevocable, which means it cannot be given away or altered through executive order, legislation, or independent action by the branch of government in question. Powers established by the Constitution may only be altered, created, or abolished through an amendment to the Constitution.
• Executive Powers authorized by the Constitution call for the President to “faithfully execute the laws,” but the expenditure of the funds apportioned to executing the laws of the United States are not addressed because how the funds are spent are tied to the execution of the law by the President. In short, how much it costs is at the discretion of the President based on the real world application of the execution of the law in question.

The Presidential Power of Impoundment basically means that if the President believes the funds are not appropriate, or the amount of funds appropriated exceed what is necessary, the President has the authority to spend, or not spend, as he believes is necessary as long as those expenditures do not exceed the maximum amount of money appropriated. Therefore, if the President of the United States believes the amount that needs to be spent is less than what was appropriated then he has every authority to spend the amount he needs to spend based on his discretion. If the amount of money that needs to be spent is greater than what was appropriated, then once the maximum amount appropriated is reached, in order for more funds to be spent Congress must by law appropriate more money toward the item in question.

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To give you an idea of what I am talking about, let’s use an example we can relate to. If a mother gave her child ten dollars to spend on candy, there is no way the child can spend more than ten dollars because only ten dollars was given. If the child wants to spend more than ten dollars, more money must be requested by the child, approved by the mother, and then appropriated by the mother in the form of handing the child the additional money. However, if the child spends less than ten dollars it would be unreasonable to argue the child is required to spend the entire amount. However, since the money originally belonged to the mother, and it was her decision to give the child the money in the first place, unless she tells the child otherwise, the child is expected to return the remaining money after the purchase to the mother. Of course, if she says, “Keep it for something else,” then the child may retain the money and spend it at a later time. If the child decides that spending the money on candy is not in his best interest after, perhaps, watching a video about the connection of candy to cavities, the child could return the entire ten dollars back to the mother. It would be unreasonable for her to say, “No, I gave you ten dollars for candy, you are required to spend that ten dollars on the candy.” Then again, perhaps due to various circumstances, the child decides not to spend any of the money on candy, but in the near future plans to because getting to the store will be easier on that future date, or a sale on candy is expected in the near future and the child knows he’ll be able to buy more candy with the ten dollars if he simply waits until the sale begins. The mother, if she’s reasonable, would not demand the child spend the money the day she gave it to him. If she earmarked the funds for candy, then he needs to spend it on the candy, but when he spends it on the candy would be entirely up to him.

In another scenario, perhaps the ten dollars given to the child by his mother was for him to pick up a dozen eggs. The store, however, is selling the eggs for $5.99. So, he buys the eggs and returns home with his $4.01 change because the entire ten dollars was not necessary for the eggs. The goal of purchasing a dozen eggs was accomplished, so the change was returned to the mother. She’s not going to say, “I gave you ten dollars for eggs, return those eggs and go find someone who will sell you a dozen eggs for ten dollars. You have to spend all of the money.” Or, perhaps he finds out, before he departs, that dad picked up eggs on the way home. The expenditure is no longer necessary. So, rather than buy eggs anyway, the child would be expected to not buy the eggs because the purchase is unnecessary, and then return the funds to the mother.

The Presidential Power of Impoundment is similar. Congress apportions a particular amount for a particular federal issue, so the President who is tasked with executing the law takes the money and plans for its expenditure. If the expenditure, once he attempts to apply it in a real world situation turns out to be an expenditure that is damaging, or problematic, he may choose not to spend the money on that item. He cannot suddenly spend it on something different, of course, because it was apportioned for that original item, so it must be returned to the Treasury to be reapportioned for something different, or not spent. A situation may present itself that the apportionment exceeds what is necessary due to cost, or the amount needed, so the President may achieve executing the law without spending the entire amount. If that happens, fantastic, he pulled off a good deal, and the remaining funds are then returned to the United States Treasury. It would be unreasonable for Congress to argue, “No, we gave you the amount we gave you, find a more expensive route and spend all of the money.” That would be, for lack of a better way of putting it, fiscally irresponsible. Sometimes, a President may choose another route. Spending the money immediately may not be best avenue to take, but he may hold the funds and spend it on the apportioned issue in the future when he believes it would be more appropriate. 

For example, Congress might allocate so many billions of dollars on war ships, but the desired size of the fleet has been reached, and increasing the size of the fleet at the moment may not be necessary. However, in a few years there may be a few ships slated to be decommissioned, and so the expenditure may need to be delayed until a later date so that the new vessels are completed at a time that coincides with the decommissioning of the other vessels. He is Commander in Chief, and for Congress to demand that he must spend all of the money at the earliest possible moment would interfere with his duty as the head of the military (an argument used by President Johnson as well), and through their demands, in a sense, it would allow them to violate the concept of a Separation of Powers by demanding that he spend as they demand when they told him to. Finally, sometimes situations change. Between the time the money is apportioned by Congress and the President spends it events may occur that renders the expenditure apportioned a moot point. The President, recognizing that the situation has changed, would then be expected to return the funds to the Treasury. It would not be reasonable to expect him to spend it anyway because Congress originally earmarked it in that manner before they knew about the coming change in situation.

Among the Founding Father Presidents, George Washington through James Monroe, only one found himself using what we are calling the Presidential Power of Impoundment. Thomas Jefferson, who today would definitely be labeled as a “fiscal conservative,” and one who is recognized as understanding the original intent of the U.S. Constitution, established what we might call a “precedent” regarding the impoundment power. Typically, one would not argue that Jefferson did not understand the Constitution, or that his interpretation of Constitutional Authorities was somehow flawed. Of the Presidents of the History of the United States, and especially of the Founding Father Presidents, Jefferson was among the Presidents of the United States who understood the original intent of the Constitution the most, save for perhaps James Madison (Father of the Constitution) and John Tyler (who was kicked out of the Whig Party because he refused to abide by their unconstitutional demands).

In the case of Jefferson’s use of the Presidential Power of Impoundment, the initial occasion was regarding $50,000 provided for gunboats along the Mississippi River. At the time, the western edge of the United States was at the Mississippi River. Disputes with France and Spain over jurisdiction regarding the river, America’s use of the river, and U.S. access to the port at the City of New Orleans, led Congress to believe that U.S. military presence on the Mississippi River to ensure that the river route was unobstructed by the actions of other countries for the purpose of the movement of supplies and products needed to be increased. However, the Louisiana Purchase in 1803 changed the situation. America’s western frontier moved westward, and the Mississippi River and New Orleans became fully controlled by the United States since both were now fully inside America’s borders and jurisdiction. Therefore, using the money for the production of the gunboats called for by Congress was no longer necessary, so President Jefferson, based on the changes to the situation at large, did not spend the money based on his own discretion, and the money was returned to the Treasury. Granted, he also used the power of impoundment regarding other issues which were not so cut and dry, but the reality is that the founding generation at the time recognized that the power existed. While the President, based on the legislative appropriation of funds may not spend beyond a maximum amount of money provided by Congress, Congress could not require him to spend a minimum up to and including the maximum. The President’s discretion when it came to the funding required to execute the laws of the United States belonged to the President, not Congress.

The next President to use the power was President Ulysses S. Grant. Many Presidents during the Twentieth Century also utilized the Power of Impoundment. The power was recognized as being legitimate, and while minor challenges emerged, the power was largely uninfluenced and unquestioned.

It was fully understood that the President of the United States may spend less than Congress allocates on certain projects if he deems the full funding amount unnecessary, and the power was recognized as existing and acceptable until Congress changed the rules unconstitutionally in 1974.

In 1974, in response to Watergate, the impending resignation of President Richard Nixon, and his unwillingness to spend federal funds in the manner Congress demanded, with the Impoundment Control Act, Congress used legislation to strip the President of the power.

Regardless of what one might think about the Presidential Power of Impoundment, the following facts surround it:

• It was recognized as a legitimate constitutional power of the President of the United States until 1974.
• In 1974 Congress used legislation to strip the President of the power that had been previously viewed as being constitutional.

The powers granted and retained by the executive branch, as previously stated, are “vested” in the President of the United States. Therefore, they may not be stripped, altered, or granted by legislation. Any change of powers granted to any branch of government requires a constitutional amendment. Therefore, the Impoundment Control Act of 1974 was unconstitutional. Congress had no power to “strip” the President of the power. While it is Congress’s job to use legislation to determine where money may be spent, Congressional control over how much of it is spent is not constitutionally granted, and in real world applications is unreasonable and could be disastrous.

In short, it is Congress’s job to legislate, and the President’s job to execute the laws of the United States. Due to the concept of the Separation of Powers, for Congress to dictate to the President how he may carry out his duties, and to restrict his authorities established by the Constitution with a piece of legislation is unconstitutional (which is another way of saying the 1974 law was illegal).

Which brings us back to President Trump, and his promise to use the Presidential Power of Impoundment when he returns to the Office of the President of the United States.

On the surface, he has every constitutional authority to do so. But, the question is, how will the establishment respond? From their point of view any reversal of the Impoundment Control Act of 1974 would need to either occur because Congress recognized their error so they repeal it with another piece of legislation, or the issue works its way to the courts. In order for the courts to look at it, the law would need to be defied, and a lawsuit would then need to be brought. Then, ultimately it would be up to the United States Supreme Court to determine if the law is unconstitutional or not. Yes, I realize what I am talking about is the unconstitutional practice of judicial review, and I am not suggesting that is what should happen; I am telling you that is probably what will happen.

With the current make up of the Supreme Court, I believe it would be a 5-4 decision, with the high court determining that the 1974 law was unconstitutional in the first place, therefore, invalidating the law and returning to the President of the United States the Power of Impoundment.

Just another reason why the leftwing Democrats are foaming at the mouth to stop Trump. He is intent upon unraveling their tyranny, and he’s willing to do it in ways that few people even realize exists.

My final tally? The Presidential Power of Impoundment is Constitutional, the 1974 Impoundment Control Act was unconstitutional, and the tyrants embedded inside our federal government will fight tooth and nail to stop the power of impoundment from ever becoming a thing again, unless of course a Democrat President wants to use it and a Republican Congress is shaking its finger saying, “No, you don’t.” Then, their argument will change, and they’ll pretend to be fans of the Constitution as long as they think it suits their tyrannical narrative.

By the way, Trump has used the power before. When he was President he limited how much of the COVID spending he used. This is not an issue he just suddenly came upon.

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