Is the GAO the Next Battlefield in the Fight for Separation of Powers?

When drafting the Constitution, the framers chose to place control over Americans’ tax dollars with Congress. But from Elon Musk’s chainsaw leadership at the Department of Government Efficiency (DOGE) to Office of Management and Budget (OMB) Director Russell Vought’s unlawful assertions of power to direct agency spending choices, the Trump administration has attempted to displace congressional control through appropriations presidentialism. Appropriations presidentialism is the “attempt to change how federal spending works by asserting unilateral, centralized authority to condition, delay, cancel, or otherwise disrupt federal obligations and expenditures without regard to longstanding legal understandings and norms.” In the resulting legal and political fights, the investigations and findings of the nonpartisan Government Accountability Office (GAO) have been an important bulwark for Congress’s power of the purse. Now, though, GAO may itself become the next battlefield in the fight for the separation of powers.

Those not steeped in government acronyms may not be familiar with GAO. As Eloise Pasachoff, Craig Schulman, and Angelene Superable document in a recent report, GAO is a nonpartisan agency that has long played an important role in protecting the constitutional order by shining a light on complex-but-consequential spending disputes. For example, GAO pointed out legal issues around Obama-era Affordable Care Act payments and Biden-era student loan forgiveness. 

GAO’s importance in protecting the separation of powers has been proved once again through recent battles over Congress’s power of the purse. First DOGE’s and now OMB’s embrace of appropriations presidentialism has led to many dramatic decisions that have kicked off various political and legal controversies. Throughout these controversies, GAO’s opinions have helped Congress, courts, and the American people understand the legality (or illegality) of administration moves, on issues such as the global funding freeze, impoundments, reductions in force, “pocket rescissions,” and OMB’s refusal to follow the law on apportionment transparency. I have argued elsewhere that GAO should be doing even more by using its power to sue over impoundments. (A recent Supreme Court emergency docket ruling suggests that in certain cases only GAO has the authority to do so.) Still, GAO has been an important and useful tool in protecting the constitutional order amid the Trump administration’s efforts to dismantle it. 

GAO may itself be the locus of the next major spending fight. On Dec. 29, 2025, GAO Comptroller General Eugene Dodaro’s 15-year term expired, sending Dodaro into the “witness protection program” (as he put it in a recent Politico interview). What happens next will depend largely on the U.S. Senate and President Trump. The range of outcomes is wide, from continuation of GAO’s independent role to the agency’s elimination to its co-optation as a tool of executive power.

To start, I do not mean to suggest that I see all of the paths mapped out below as consistent with law or tradition. Rather, on the path laid out by statute, the replacement of the comptroller general should be a relatively uncontroversial, bipartisan exercise. But a theme of 2025 has been the Trump administration’s willingness to chart new paths that break tradition and, in many cases, potentially the law. 

Start with the GAO succession path set out by statute. Section 703 of 31 U.S.C.—the law governing the comptroller general’s succession—provides a process under which (a) the position becomes vacant as soon as Dodaro’s term expires, (b) an acting comptroller general appointed by Dodaro on his way out from among the GAO’s senior employees takes over (Dodaro has appointed Orice Williams Brown to this role), and (c) a bipartisan congressional commission recommends a slate of at least three candidates, from whom Trump nominates one who becomes the next comptroller general if confirmed by the Senate. 

So if this process goes as laid out in the statute, the GAO will be run by an acting comptroller general for anything from a few months to a few years while Congress develops bipartisan recommendations. President Trump picks a successor to nominate from the slate recommended by the bipartisan congressional commission, and then the Senate confirms that nominee. 

A bipartisan appointment for the GAO comptroller general could be a win for everyone—Trump demonstrates respect for the Constitution and course corrects from Musk’s and Vought’s excesses without directly impacting his policy priorities, incumbents secure a major bipartisan accomplishment, and the American people get more stability and accountability in a world that feels unstable.

But it is also possible that those in the Trump administration who prefer to play hardball to increase executive power will win Trump’s ear, as they have so often been able to do in the past year. Rather than the traditional, bipartisan path described above, the Trump administration might ignore any bipartisan slate of candidates and attempt to force through a loyalist candidate hand-selected by the president without regard to Congress’s bipartisan recommendations. 

If the president nominates a loyalist of his own choosing rather than a candidate with bipartisan support, Republicans in the Senate could choose to confirm the president’s pick, further consolidating the executive branch’s power. Alternatively, if the Senate refused to confirm the president’s pick and Trump refused to nominate another candidate, then the office of comptroller general could remain officially leaderless for years. If this were to happen, the GAO would be operated by the acting comptroller general until the stalemate between the president and Congress came to an end. 

This has happened before. During President Clinton’s second term, James Hinchman—selected by Charles Bowsher as his term expired—served for 25 months as acting comptroller general. Dodaro himself also served as acting comptroller general for 19 months after the conclusion of David Walker’s term in the last year of the George W. Bush administration. 

In short, if the president chooses to play hardball but Republicans in the Senate do not play along, one might assume that the GAO would simply be operated for months or even years—however long the stalemate went on—by the acting comptroller general. That’s certainly possible, but it’s not inevitable. Consider five facts: (1) The first Trump administration repeatedly attempted to obstruct GAO investigations by refusing to comply with the office’s requests; (2) the second Trump administration has repeatedly sought to undermine or dismantle independent agencies; (3) Vought has described GAO as a “quasi-legislative agency” that “should not exist”; (4) conservative public interest organization America First Legal—the founder and president of which is senior Trump adviser Stephen Miller—is currently suing GAO, arguing it is an executive agency; and (5) the Trump administration’s previous attempts at an executive branch takeover of the Library of Congress faltered only because of Republican pushback in Congress.

If the administration decides to play hardball, it will use Dodaro’s departure to reject the constitutional authority of any acting comptroller general—either immediately after Dodaro’s term ends or after a span of weeks or months in the resulting nomination negotiations. The administration might also instruct agencies to disregard GAO’s investigative requests, similar to its instruction to agencies to ignore GAO legal opinions during the first Trump administration. To be clear, I do not mean to suggest that there would be persuasive constitutional defenses for such a break with tradition (I can speculate about aggressive theories targeting the constitutional outer bounds on the tenure of acting appointees), but the merit of any such theory might not matter if the administration acted on it and no one had standing to challenge it in court. In other words, this path could become a blockbuster legal fight over whether Congress’s watchdog will continue to exist.

Perhaps counterintuitively, these two paths are related. The Trump administration’s demonstrated willingness to play hardball gives it an edge in negotiations. Senators, therefore, might be tempted to accept a less-than-adequate nominee from the president in order to avoid a dramatic legal challenge and preserve the GAO as an independent force. 

So what can concerned members of Congress rooting for the preservation of separation of powers and bipartisanship do? Rather than wait for the president to play or threaten a hardball strategy, then react if he does with surprise and alarm, members of Congress can begin developing their own creative countermeasures. Members of Congress could develop bipartisan support for proposals to bring the comptroller general nomination fully within the legislative branch. Moreover, even without bipartisanship or leadership support, individual members could respond to the Trump administration’s ongoing attack on the GAO by quickly and unilaterally launching their own initiatives. One possibility would be one or more quasi-private Government Accountability Units, staffed by volunteer retired and departed federal workers who could provide constituent services to the increasing number of companies, local governments, communities, and non-profit organizations facing abrupt cancellations in grants or contracts without the resources to navigate an investigation (using the Freedom of Information Act) or litigation (using the Administrative Procedure Act) that could provide them with relief and safeguard Congress’s power of the purse. Or there might be other ideas that could make an impact and be accomplished by even a small handful of representatives or senators, without the need for leadership approval, funding, or legislation. If the executive branch plays hardball, ready-to-implement legislative hardball countermeasures could lessen the harm to the separation of powers. And simply having such countermeasures in development during negotiations might itself encourage the president to move forward on a bipartisan basis.