Lawfare Daily: Understanding the Impoundment Crisis

[Intro]

Eloise Pasachoff: There may be some underlying authorities in some individual provisions of either appropriations law governing particular programs or underlying statutory authorities that would give an administration the opportunity to hold up on individual buckets of money, but nothing painting with the kind of broad brush that OMB has purported to have.

Quinta Jurecic: It's the Lawfare Podcast. I'm Quinta Jurecic, a senior editor at Lawfare with Eloise Pasachoff of Georgetown Law School and Zachary Price at the University of California College of Law San Fransisco.

Zachary Price: And so if the argument is we have a constitutional power to disregard that statute, override it, it's unconstitutional, then what you would need in terms of practice is a kind of settle an understanding that presidents can defy that sort of constraint, and I just think the record doesn't, doesn't support that.

Quinta Jurecic: Today we're talking about this week's crisis over the Trump administration's freeze on a vast amount of federal funds appropriated by Congress.

[Main Podcast]

Before we get into the details, I want to help set the scene a little bit. So Eloise, let me first turn to you. What is impoundment? When we're talking about the Trump administration impounding funds, what does that mean?

Eloise Pasachoff: So impoundment, at its most basic level, is a presidential assertion of authority to not spend money that Congress has appropriated and a president has signed into law.

Quinta Jurecic: And Zach, why are we talking about impoundment right now? For our listeners who are catching up with a great deal of news, what's, what's been happening? And I guess I should also say we're recording this in the early afternoon of January 29th. So we're, we're, we only know what's happened right until then.

Zachary Price: Sure. Well, so. It's kind of erupted in the news, but I think this controversy has been brewing for a while. I mean, as Eloise said that, you know, impoundment is a choice not to spend money that Congress has appropriated. But since 1974, it's been regulated by the statute called the Impoundment Control Act that really sharply limits when the executive branch could do that.

And the first Trump administration tried to interpret that statute fairly flexibly in certain ways which gave rise to some controversies. On their way out the door their OMB head and general counsel, who are both re nominated for this administration, gave a letter to Congress that kind of staked out their legal positions. And then in the interim, they've kind of, in private think tank capacity, have made arguments that the Impoundment Control Act is unconstitutional either across the board or at least in certain respects.

And so that context it's not, not unexpected to see the administration taking some of those same positions. And what we've seen in the first few days is some executive orders and then a memo from OMB trying to pause certain funding, which could be an unlawful impoundment under the statute, maybe not, but implicates some of these, these questions that have been brewing.

Quinta Jurecic: So I want to talk about the statute that you mentioned, the Impoundment Control Act. What is it historically, and what led to Congress passing it in the first place? Eloise, let me start off with you, and then Zach, I'd love to have your thoughts as well.

Eloise Pasachoff: So the last time we had an impoundment crisis in this country was during the Nixon administration.

So Nixon tried to assert extremely broad powers to impound, again, not spend congressionally appropriated money that, again, a president had signed into law in a whole variety of domestic programs, so water grants and housing support and just a whole variety of domestic policy programs. And there were dozens and dozens of court cases and not a single case, you know, upheld his ability to do that.

But in the aftermath, Congress said, this is a mess and we need to step in. So as part of broader budget reform in 1974, Congress passed something called the Impoundment Control Act, which, as Zach said, really imposes very clear limits around what presidents can do if they want to not end congressionally appropriated, presidentially signed appropriation laws, if they don't, if they don't want to spend that money.

So if now is an appropriate time for me to explain a little bit more about the way that law works, I'd love to do that. Okay, great. So the law provides two and only two mechanisms for presidents not to spend funds, and it involves Congress in both of them.

So, under the first path, which is rescission, the president wants to actually cancel certain monies, and so he has to submit what's called a special notice to Congress, proposing to cancel that spending, and in the meantime, while Congress is considering whether to up or down vote that proposal through a fast track procedure, the president can not spend that money.

I think there's like a 45 day of congressional session period where it's okay once the special message has been submitted to Congress to not spend that money. And then through fast track procedures, Congress has the opportunity to vote up or down on that. Unless Congress supports that proposal in the special message, the president has to release the money. No, you know, no withdrawal, no, no impounding, no withholding of that money is permitted. But that's the first path, rescission.

And in the first Trump administration, President Trump made use of the rescission power for the first time since the Clinton administration. Nobody had, none of the intervening presidents had tried to use rescission authority so that, you know, that's an available path though, and, and presidents are certainly welcome to use it. So that's the first path.

The second path that the Impoundment Control Act contemplates, and the only, the only other path, is through something called deferral. And here, the president proposes to defer for a limited period of time the spending of certain clearly identified money. And even there, the president has to submit a special notice, a special message rather to Congress.

And there's one additional thing that the impoundment control act cabins around deferral which is that you can't defer for policy reasons. You can only defer to provide for contingencies, to achieve savings made possible by or through changes in requirements or greater efficiency of operations or as specifically provided by law and I'm quoting there. And so that's the other path.

And here Congress again has an opportunity to weigh in on it, but the president is allowed, even with congressional disapproval, to defer for this limited amount of time, but it can't run beyond the fiscal year. So you've got to be in a position to spend the money beyond the fiscal year.

So that's what the Impoundment Control Act itself contemplates. There's a couple of additional constraints that I'm happy to talk about another time, but those are the two main paths, the two only paths, I should say.

Quinta Jurecic: And Zach, anything you'd like to add to that?

Zachary Price: Well, I guess one thing, and Eloise is more the expert on this as well, but one thing that's happened is the deferral authority, or the way deferral is defined is quite broad, as you, as you just heard, sort of any delaying of money. But for decades now, the Government Accountability Office, the comptroller general, the congressional agency that kind of oversees spending and issues legal opinions.

It said, well, if you make something that calls a programmatic delay, that's not a deferral. And what's curious is that the way they define programmatic delay kind of sounds like what the deferral provision was trying to get at. But presumably they want to deal with the fact that, you know, agencies have to kind of, if they're carrying out a program in good faith, they might be delaying spending for any number of reasons. And it's kind of impractical to have to always report that.

But that's what is sort of a breakdown in the deferral process. And that's, that's part of what's going on in the current controversies.

Eloise Pasachoff: So that's, let me just add one or two things to that kind of like addition. I'll just give a little bit of content to what GAO calls a programmatic delay.

The GAO has defined programmatic delay as one in which operational factors unavoidably impede the obligation of budget authority, notwithstanding the agency's reasonable and good faith efforts to implement the program. So this is not part of the Impoundment Control Act in its text. It's not part of what Congress originally contemplated would have provided these two paths for, you know, cabining impoundments. But it is true that for the last you know, several decades, GAO has created this and kind of relied on to evaluate whether administrations are doing improper impoundments or whether when they're not spending money, they're doing an acceptable programmatic delay.

Quinta Jurecic: Zach, you put together a great piece for Lawfare, which I'll definitely recommend listeners take a look at with kind of an overview of all of this. And one of the things you do in that piece is walk through how this issue of programmatic delays has come up both in the first Trump administration regarding the Ukraine impeachment and then in the Biden administration as well.

Could you kind of walk us through how this has played out just to give a little sense of what these disputes have sort of looked like in practice?

Zachary Price: Sure. So there've been opinions applying this concept going back a long time. So it's, it's been there, but we've had these two really salient controversies in the past two administrations. The first involved the delayed Ukraine aid which led to President Trump's first impeachment. And so as most of us probably recall you know, Trump apparently, in a phone call with Ukrainian leader Zelensky among other things, sort of, was trying to leverage the aid to get kind of criminal investigation into Joe Biden's family dealings in Ukraine.

So that seemed to be the overall kind of policy objective in the background. But mechanically what happened is OMB apportioned the money. So OMB is supposed to kind of spread out funding over the course of the year in an intelligent way to avoid kind of opposite problem of empowerment of people overrunning, agencies overrunning their appropriation. So it's supposed to kind of spread out the money. But the grounds in which you can do so parallels the language in the statute for deferrals, right? It's supposed to be for kind of programmatic reasons.

So they basically delayed the money until the end of the fiscal year when they finally released it, and they said that was a programmatic delay, but GAO issued an opinion saying, no, that wasn't a programmatic delay. You just were kind of overriding the policy in the in the statute. Defense Department had a plan for using the money so there wasn't any kind of practical need to delay carrying it out. So this is a, a policy deferral, which is an unlawful Impoundment under the Impoundment Control Act. So that's controversy number one.

Then controversy number two is on the first day of the Biden administration, he issued a day one executive order in some ways, like the flurry we've had from President Trump. And this order said, we're going to pause all construction on the border wall. So the problem is there'd been, for several years there'd been a very large appropriations allocated precisely for that purpose. And so, you know, under the impoundment control act that you have to spend the money for that, for that purpose.

But he paused and said, well, there's a programmatic delay. We're just figuring out what our plan is going to be for the construction, how we're going to proceed and so forth. But that seemed to basically involve they, you know, the previous administration waived various legal obstacles to building the wall, such as environmental reviews and constraints and things like that. And the new administration sort of put them back in place, which slowed down a lot of the spending and even, you know, the construction itself.

So as I understand it, Republicans in Congress complained, well, this is, you know, the same, this is just like Ukraine. But GAO said, well, that, that is a programmatic delay because the administration was just kind of taking steps to comply with legal requirements, come up with its plan, you know, did eventually obligate at least most of the, most of the money.

So they had two opinions reaching that conclusion. And at least based on testimony from the incoming general counsel of OMB, I think the Trump folks feel that that was, that was very inconsistent. And sort of, you know, they, I, I suspect they're, they think that what they might want to do now is, is, you know, they should be able to take that Biden opinion and run with it.

Eloise Pasachoff: Can I add one thing to the two controversies that Zach has just outlined? Which is that there was actually a second GAO decision on a different pot of Ukraine money that the administration, the Trump administration, had withheld at exactly the same moment that it withheld the money that Zach is talking about.

Now, the bucket of money that Zach is talking about that GAO said was improperly withheld and therefore was a, you know, an impoundment was Department of Defense money. And so that money, you know, the underlying statute did not provide any underlying discretion in whether the agency and the administration had any choices to make.

It was sort of congressionally mandated. It was, there was just like a bucket of money that had to go to Ukraine. And so that's the decision in which GAO said, yeah, no discretion. You didn't follow the procedures of the Impoundment Control Act. This is not a, this isn't a, you know, an illegal impoundment.

The second pot of money, GAO reached the other, the opposite decision. Even though OMB put a pause on giving the money to Ukraine at the exact same moment, that was State Department money. And there, the GAO concluded that the underlying statutes on which State Department was relying allowed flexibility and discretion for this underlying policy process.

And so it's actually that second GAO decision where GAO upheld the, you know, the withholding of money basically as a perfectly acceptable programmatic delay during the Trump administration. It's that decision on which GAO then relied in upholding the Biden wall pause.

So there are the ideas like in order to determine whether something is a permissible programmatic delay under this category that GAO has invented, you have to look at the underlying sources of law, look at the underlying appropriations provisions, and look at the underlying authorizing laws and just see whether there's any discretion given to the executive branch in implementing them. And if there is, then there's likely to be a permissible programmatic delay because you're deferring for real, you know, maybe you're just complying with the terms of the statute. At least that's the logic there.

And I'm underscoring that just to say that, you know, the idea that the GAO was inconsistently applying the law to the Trump administration and the Biden administration, I just don't think can possibly be factually true when you look at that intervening decision where, you know, it's basically like the Trump administration withheld money for Ukraine and some of it GAO said, nope, you can't do that. And the rest of it, GAO said, yep, totally fine, not an impoundment.

Quinta Jurecic: So let's talk about this latest dust up. And I should say right before we started recording, there was breaking news that OMB had actually issued another memo rescinding the previous memo that had put the funding freeze on this. So this is very much a developing story.

But what precisely is it that OMB did this week that appeared to freeze large amounts of federal spending, and how does that kind of fit into the story you've been telling? Whichever one of you wants to jump in.

Eloise Pasachoff: On Monday of this week, January 27, so the beginning of the second full week of the Trump administration, the acting director of OMB issued a memorandum called ‘Temporary Pause of Agency Grant, Loan, and Other Financial Assistance Programs,’ which outlined, in bold, the idea that federal agencies must temporarily pause all activities related to a vast swath of grant funding, loan funding in order to, you know, ensure that all the money being given is consistent with the president's priorities. And they walked through a bunch of what those priorities are, you know, including ending wokeness and things like that.

So, this obviously caused a lot of chaos and confusion in large part because it was not clear what monies were being withheld. And a lot of the work of the federal government is done through these grant and loan programs to the tune of, you know, trillions of dollars. And, you know, people have payroll to make, and nonprofits, state agencies have people to pay, you know, in reliance on, on federal funding. And so it's really like a huge set of money that, you know, they put on this temporary pause.

So this is just, you know, yesterday they tried to put a little bit of a cabining document on it, like a follow up Q&A document that said, actually we don't mean this, actually we don't mean that, clearly we didn't mean that. And then it appears that this morning they've rescinded the whole memo to begin with. And so, you know, I think it's indicative of the fact that there was not a lot of legal thought that was put into this massive pause on federal dollars.

I think one implication of what, what we're talking about is that there may be some underlying authorities in some individual provisions of either appropriations law governing particular programs or underlying statutory authorities that would give an administration the opportunity to hold up on individual buckets of money, but nothing painting with the kind of broad brush that OMB has purported to have.

So there's one other aspect that I just want to mention here that I think was implicit in the hold on the money. I don't know that this part has gotten, like, quite enough attention, and, but I think it's really important too, and so I want to add it on. And so that's this idea that not only are we pausing the money, to make sure that they're consistent with the president's priorities. But I think implicit in that is like, maybe if we resume the money, we'll add certain things to make sure that they are consistent with the president's authorities.

And I just want to note, there is no freestanding authority, either the Constitution or any, you know, trans substantive provision of statutory law that allows presidents the ability to just be like, okay, I'm going to add, you know, my policy priorities to the spending condition. Again, maybe there might be individually isolated provisions of appropriations law or underlying authorities that do give that kind of discretion, but nothing on the macro mass scale.

And so I think we all ought to also be watching out for are there efforts to impose, you know, sort of macro conforming policies, again, without any kind of authorization to do so.

Quinta Jurecic: And Zach, before you jump in, I just want to say, you know, along with some of the clarifying documents OMB released yesterday, there was a spreadsheet that contained a list of all the programs that were potentially affected, which I'm looking at right now. It's in extremely tiny type, and it is 52 pages long.

So it's, you know, a astonishingly vast spread of grants. There were reports of states being locked out of Medicaid portals, for example. The OMB that said, no, you know, of course Medicaid isn't affected, but clearly somebody thought that it was at some point. So, just to really drive home what you were saying, Eloise, the scope of this freeze was jaw dropping.

Zachary Price: Yeah, I mean, I agree with all that. I mean, it, it, it's certainly massive and, and, you know, predictably created these enormous administrative problems. You know, one wrinkle is, I mean, it's on the heels of these executive orders that are, that are also making very large policy changes and, you know, the ins and outs of them vary, but there are certainly some areas where the president has the authority to do that. And in principle, that might shape how other funding authorities get applied going forward.

So I imagine that's what they were thinking, right? We're going to kind of, we've, we've changed the interpretation of say, civil rights laws in certain respects or, and, you know, we want to make sure everything we're doing is, is complying with that policy. But, you know, that, that may hold some water in some context, but in others is just not, not really applicable. So to have this kind of giant pause, I think is hard to defend on purely programmatic grounds.

Eloise Pasachoff: Can I just add just like a couple of additional kind of appropriations terms we haven't yet thrown in there? And so one of them is obligation and the other is disbursement. And I want to just distinguish between the two of them.

So an obligation is when an agency kind of makes a promise, you know, like a deal with a grantee or a contractor or a loan, something like that. That's the obligation. You are committing, you're agreeing to spend that money in that way with that, with that recipient.

And then disbursement is you've already made your commitments. Now you're just like dispersing the money on whatever regular basis the money gets dispersed. And another aspect of the, of the extremely large step that this OMB memorandum purported to take was that it was pausing obligations and disbursements.

And, you know, the disbursements are happening under not just, you know, law, the way I was just outlining and we've been talking about here, but were also happening under individual agreements, contracts, right, like grant agreements and loan agreements and stuff like. So to change those interpretations in the middle of the stream, it, you know, is also just like another complicated and certainly a legal sounding aspect of all of this.

Quinta Jurecic: Before we go any further, just to kind of bring people up to speed on where things are now, so there have been, I think, so far I believe two lawsuits filed against this. One, a group of nonprofits. One, a group of Democratic state attorneys general. In the first case, we have a administrative stay from a district judge that lasts, I believe, through Monday when there'll be another hearing. And presumably the judge will decide to weigh in on whether to grant the temporary restraining order that the nonprofits have requested.

Then it seems that OMB has rescinded the memo, it's not totally clear to me. I'm curious whether it's clear to either of you whether the rescission is a total walk back or just a response to the stay and they're planning to potentially go, you know, put this back in action depending on what happens with the TRO and the ongoing litigation. Is it clear to, to either of you at all?

Eloise Pasachoff: Well, I think once the memo's been rescinded, then the lawsuit is moot, so I don't think there will be any further argument on this particular action. But I will say that the, that the memo purports to be implementing the executive orders that themselves do some potentially impoundee kind of things, like stopping disbursements of, you know, Inflation Reduction Act money and, you know, Green New Deal money and things like that.

So I do think that's like a separate litigation issue. I think that I am not aware of any lawsuits that were filed on those yet, but that is because I believe nothing has happened yet. And so there is nobody who actually, you know, has, has been injured you know, by the, by the assertions of authority to, to not spend that money. I do think that now might be a good time to talk about some of the constitutional issues around impoundment, if you?

Quinta Jurecic: Yeah, absolutely. So that's, that's precisely where I wanted to go, because I think hanging over all of this, at least in my view, has been the nomination of Russ Vought to lead OMB. He has made no secret that he thinks the Impoundment Control Act is actually unconstitutional and the Senate is currently considering his nomination. So what is the argument in favor of that position and how, how do you evaluate it?

Zachary Price: Yeah. So I guess it has a couple of components. I mean, one is just, there's a kind of formal argument that the provisions of the Constitution that vest the president with executive power and give him responsibility for faithful execution of the law entail some discretion over spending that necessarily implies some degree of impoundment power. So that's the kind of formal argument, but in support of it, people invoke the historical practice of impoundment.

And it is true that before 1974, presidents fairly regularly impounded funds, most frequently in the kind of defense procurement context but not, not limited to that. So there is a historical practice. So the question is whether either of those things, either separately or in combination, are convincing.

I don't think so. I think the problem with the formal arguments is that, you know, the Faithful Execution Clause, the Take Care Clause, I mean, it says the president should take care of the laws to be faithfully executed. It's not the only context in which people invoke that to say, well, the president has this kind of discretion over how to apply the law, but it really says the opposite, right? Says the president has a duty to ensure that laws are faithfully carried out.

And I think historically, the, what the framers are trying to do with that clause is prevent presidents from suspending laws in ways English monarchs had sometimes done in the past. But so the point is the law is the law, the president has to carry it out. And that's his job. So there could be some wiggle room, you know, sometimes you have there's, there's room for judgment. But I think the overall thrust of it is you've got to apply the laws that are enacted, even if you didn't particularly like them.

So I don't think the formal argument is very strong to begin with, I do think historical practice is really important in separation of powers interpretation. There should be a kind of presumptive validity the way the government works over time if it fits some credible theory of the text of the Constitution, but I think you have to be careful with it for a couple reasons.

One is that particularly in these kind of interbranch disputes, there's a lot of bluster presidents will say things and then not follow through on them in practice. So I think if you're concerned with practice, you have to look more at what's actually done than what people say. I think you also have to be careful about context. You know, what actually is the practice that's, that's developing.

And I guess the last thing is you have to focus on the kind of the general pattern. I mean, there are always going to be kind of isolated incidents but what matters is kind of the general pattern of practice and what I understand that reflects. So, so you've got to pay attention to what actually happens, not what's said and focus on the context and look at the overall pattern.

I think when you do that with impoundments, so before 1974, it's 1974, we get the statute that really limits what can be done. And so if the argument is we have a constitutional power to disregard that statute to override it, it's unconstitutional. Then what you would need in terms of practice is a kind of settle, an understanding that presidents can defy that sort of constraint and I just think the record doesn't, doesn't support that.

On the contrary, it seems like, I mean, they're, they're repeated political battles over some of these impoundments. But, you know, both congressional sources and executive branch sources will say, well, everyone kind of understands these statutes are normally authorization, not, not a mandate.

So it seems like the general kind of background assumption before 1974 is that you've got to carry out Congress's general policies, but you know, it's the appropriations are an authorization to spend, not a mandate to do so. And the Impoundment Control Act just, just reverses that. So now it's spending is kind of normally mandatory unless there's a reason to think there's, there's flexibility.

So I think that past practice just doesn't support the idea that now you can still impound in the way that presidents did in the past.

Eloise Pasachoff: So in terms of the historical record, I think it's maybe not even a good use of the term impoundment to call some of what was happening impoundment, because presidential decisions not to spend certain money was in many of those cases in the historical record totally consistent with the underlying statute.

So to bring in a little bit of case law here, I think a relevant case is Clinton versus New York, which in which the Supreme Court struck down the line item veto as a violation of bicameralism and presentment. The line-item veto itself was an amendment to the Impoundment Control Act, right? It was like another way of trying to get to be able to not spend certain, certain monies.

And in that case, the majority kind of recognizes and I think dismisses what the government calls the president's authority, the president's, sort of like traditional or historical authority to not spend money. I think what the majority says is that, you know, we've looked at the statutes that you're citing, and actually Congress gave the executive broad discretion.

And so the key for that then in the historical record is that a lot of the time, the president was not thwarting the will of Congress. And that I think is the key distinction when we're talking about impoundment and or when we're just talking about the efficient management of government appropriations laws, like anything else, go through both houses of Congress, and they're signed into law by the president, right? That's the process of bicameralism and presentment.

And so the idea is that to take care that that law is faithfully executed, you know, like, requires you not to be just changing it willy nilly to thwart the congressional purpose as stated in the statute. So that's, that's one point I wanted to just make to flesh out the additional record bring in the case law a little bit.

I also just want to note in terms of that relevant case that even the dissent in Clinton v. New York, Justice Scalia talks about having rejected impoundment theory. So he sort of said to the extent that, you know, the president is trying to rely on that theory to support the line item veto, you know, we don't have it because we rejected it.

The last kind of body that does interpretation we haven't really talked about, and I'll a little bit throw this over to Zach, who, who, you know, worked at the Office of Legal Counsel, and so can maybe speak from that perspective as well. But the Office of Legal Counsel, OLC, you know, the president's lawyers, to some extent, right, to think about protecting the prerogatives of the executive branch.

And the weight of OLC authority is also against any kind of constitutional authority for presidents to impound, you know, sort of like repeatedly has says, it has said it's difficult to find an actual legal theory on which you could rest impoundment. The one I'm sort of half quoting there is from you know, who became Chief Justice Rehnquist, so this was during the Nixon administration itself.

So, Zach, I don't know if you want to kind of flesh out the OLC role in all of this, but, but it is another sort of interpretive agent that we might as well throw in here.

Zachary Price: Sure. So I think, and we've got OMB in the White House, and then we've got OLC in the executive branch, which has authority to issue kind of legal opinions, they're binding on the executive branch. And then we've got GAO and the comptroller general on, which are congressional. They're, they're the same thing, but they're for this purpose, but, but congressional agency.

So Eloise is correct. I mean, there are OLC opinions going back to at least when, when Rehnquist was head of the office that that just reject this idea that there's a constitutional authority of impoundment, invoked the Faithful Execution Clause the same way I did earlier.

There are situations in appropriations law where OLC and GAO have different interpretations. And, you know, OMB has at various points issued these circulars to like the whole government saying, you know, you have to follow OLC, not, not GAO. So there are, I mean, that happens a lot in inter branch relations that on constitutional questions or statutory questions, the two branches will have different points of view.

And something else we can talk about, often these, these questions don't get litigated or hard to get resolved by court. So they end up getting worked out in a kind of push and pull between the branches. And, you know, that can be a little tricky because particularly as things get more partisan and conflictual we could see things like that heat up.

So that's another reason why I think if you're looking at these things objectively, thinking about practice, it can be really helpful to look at kind of, well, how did things actually play out? Maybe that's what the precedent should be is, you know, whose theory prevailed at the end of the day, rather than what people stated legal positions were.

I've looked at that not so much in this context, but a lot of kind of separation of powers disputes. All the time presidents will take these pretty strong positions, but then they don't follow through on them. They back down. I think what they do should, should matter more than what they say in a lot of these contexts,.

Eloise Pasachoff: There's lots of times that OLC is silent on an appropriations law matter, and GAO has answers. And so GAO, I think, is sort of traditionally understood as the basic repository for appropriations law. It maintains a huge treatise called the Red Book, after the days in which it was published. And, you know, in hard copy, it appeared in red binders. Now it's still called the Red Book, but it's just available online, I think.

And, you know, when agencies have appropriations law questions, there is no OLC compendium that answers everything. So they go to this multi thousand page treatise from GAO that just like often provides answers.

We also talked a little bit about the GAO decisions on impoundment at the beginning of this. GAO answers questions from agencies as well as from Congress on, you know, pretty routine appropriations matters as well. And that's also part of this just like background body of the way appropriations law tends to work over time. So that kind of back and forth, that kind of practice, as Zach is talking about, is really important and really does define the basic way the structure of the system works.

Quinta Jurecic: So from the way you've both described it, what we've seen over the last few days seems like a pretty dramatic assertion of authority on the part of the executive branch, whether the argument is that this is, you know, a effort to really expand the category of programmatic delay. Or an effort to, you know, really push the boundaries of the constitutional authority and argue that the Impoundment Control Act is unconstitutional.

Or, you know, there's another argument that the fact that this memo came out and then there was a lot of confusion and then it got rescinded is a sign that, you know, maybe the people who are putting this together don't really know what they're doing and all of this is sort of a lot of confusion, a lot of sound and fury with very little sense behind it.

So I'm curious how you both kind of understand this. Is this a kind of like an opening salvo in a war on congressional appropriations power? How should we, how should we understand it as a sort of matter of broader questions of separation of powers under the Trump administration?

Eloise Pasachoff: So, I definitely see it as an opening salvo. I cynically would say that the withdrawal of the memorandum had more to do with the timing of votes, nomination vote, and less to do with the ultimate plan for what the plan is, right? So, one, there are these executive orders that are still in the books that in principle say that this kind of money shouldn't go out the door.

Two, the Trump team has been saying for years and years now that they're going to impound. They've announced it. You know, one, there was a whole agenda item in the president's campaign materials that says, you know, we're going to, we're going to both work with Congress to withdraw the impoundment control, but also we're going to challenge this as unconstitutional.

And then again, there was that, you know, those motions, those movements that the incoming OMB Trump team folks made at the end of the last administration that Zach was talking about before, where they're like, yeah, this is just, we're just not going to follow it. It's bad policy and it's unconstitutional. So I think that is, you know, from my read, that is the plan. This isn't, the fact that they withdrew this memo has nothing to do with the idea about whether they're going to pursue broad scale impoundment going forward.

At the end of the last Trump administration, some unnamed senior Trump administration officials were, were quoted, you know, said to a reporter that the Ukraine money was one thing, but what they were really working on was a broader plan to assert the president's authority to be able to spend money in any time at any way that he wished. And I don't think that is going away.

Zachary Price: Yeah. I mean, that, that sounds right to me. I guess something to add is I think Trump is unique in a lot of ways. And he's kind of made this a signature issue in a way that was not true of earlier administrations, to my knowledge.

But it does fit a general pattern in presidential behavior that I think reflects underlying political realities, which is we've got, you know, we've got a very closely divided country, two pretty ideological parties that have not been able to kind of capture consistent control over, you know, the federal government or, you know, both branches. And, you know, but presidents come in with agendas that they want to, they want to achieve.

And, you know, Congress often is either opposed or, or, you know, not fully on board. And so they look for ways to fit what they want to do within existing legal authorities. And that often means interpreting either statutory or constitutional powers very broadly. And it's not a great trend.

I think the, our Constitution creates some problems. It ultimately is a pretty wise judgment. It kind of requires a pretty high degree of consensus for major changes in national policy. That's the practical effect of the bicameral and presentment structure.

But people want big change, feel they have a mandate for change. It makes it hard for them to achieve that through the legislative process. And so they look for ways to do it with executive action. But that just, you know, we'd still a lot of conflict, a lot of kind of degrading of legal restraints and norms that enable government to function. And so I think it's a bad trend that's not, that's been there for a while reflects these underlying political dynamics and, but we're just seeing a new pretty aggressive manifestation of that with this administration, it seems.

Quinta Jurecic: And so if the, if the Trump administration does not in this instance, but perhaps in future instances, end up, you know, really, really pushing this question on the constitutionality of the Impoundment Control Act, what kind of hearing would you expect that they would receive in the courts?

And particularly curious in your read of what the sort of the mood might be in the Supreme Court, not to ask you to count votes, but just to get a general sense of, you know, where the currents of legal thinking are and what, how far this is outside the mainstream of it is.

Zachary Price: It's hard to say because partly these issues tended not to get litigated, they tend to get resolved politically. And in some ways that's appropriate because they're often, you know, these kind of political disagreements that maybe are better, better worked out informally.

But, you know, we've seen a lot of questions that were previously kind of managed with the kind of political give and take ended up resulting in litigation. That's just part of that same dynamic that people can't work things out on their own, so they end up running the court. And we've seen that across a range of areas. So it wouldn't be surprising if we start getting litigation.

And at least with impoundments, I mean, sometimes with spending questions, you have real standing problems. Particularly if, you know, the government is spending money, you know, who's hurt by that. But with impoundments, you know, you probably, if there's money that someone has a legal entitlement to that's not spent, probably you could you know, sue to get the money and then, and then tee up, tee up the issue.

So, you know, I don't know. I mean, I, I, I think the correct answer is that the Impoundment Control Act is constitutional, you know, so I would expect courts to agree with that. You know, I think, you know, the Supreme Court has itself become more partisan in some ways, but still is very attentive, you know, I think it's very attentive to the law and also takes a longer view of certain issues and would appreciate you know, the long term ramifications of recognize a presidential constitutional impoundment power.

Also, you know, it's very attentive to practice or what it likes to call history and tradition. In related cases has shown a reluctance to kind of rock the boat. This was a big theme in the recent case over the CFPB. People challenged the fact that it is not dependent on annual appropriations. The Supreme Court said that's fine. Looked at a lot of the history to get to that answer. And there's a separate opinion by Justice Kagan really emphasizing that's the right way to think about these things.

And I think if you approach the issue that way, then we're dealing with a half century old statute that, you know, has been embraced by both Congress and the executive branch, taken as a real framework for how the branches relate. And so I think the court would be reluctant to throw that out the window.

Maybe there are certain narrower challenges that could succeed, but that would be my overall prediction, or at least my, at least my hope, because I think that's the right answer and the right way to think about this problem.

If I could add one more thing about the kind of importance of the question, though, I think, you know, we've got that kind of political structure. I was talking about earlier. We've got presidents kind of having an incentive to be aggressive with their legal authorities. We've also got, you know, world in which there's a lot of delegation, a lot of power conferred on the executive branch. And that's, that's what enables presidents to try and make these policy initiatives.

But what's so important about the appropriations process is that's where, in that environment, Congress can have a say, right? The fact that for most things you need annual or at least periodic appropriations, it gives Congress a kind of ongoing check. And, you know, maybe in some ways that's the kind of inversion of the original constitutional vision, which would have been kind of Congress is the prime mover and the president in a more secondary role.

But now it's often the president has the power of initiative on all sorts of policy questions. And it's through that appropriations process that Congress imposes constraints. And it does this all the time. It, it denies money for things and it provides money for things that the president doesn't necessarily want to do.

And so I think part of what's so important about this issue is, you know, if you think checks and balances, this kind of push and pull between the branches is important in kind of getting a good policy, maintaining legally restrained government, then this fiscal side of things is really important because that's where Congress has the most power at this point in history.

Eloise Pasachoff: I want to chime in to add that for the very reasons that Zach is talking about, that's why the impoundment situation is itself really important, but it's also only one piece of the scope of presidential, you know, assertions of power to spend or not spend that I think we really ought to keep, be keeping track of based on what the Trump team in the first Trump administration tried to do.

So there were more efforts towards impoundment than we've even talked about in the first Trump administration. So clearly impoundment, you know, is on their mind in all the ways that we talked about. And impoundment is, of course, efforts not to spend congressionally appropriated money.

But the flip side of impoundment is that you can't spend what Congress hasn't given you. So you can only spend what's been appropriated, and if nothing's been appropriated, you're not allowed to spend. That side of the spending equation is enhanced by, or effectuated by, a different statute called the Anti Deficiency Act.

And during the first Trump administration, the Trump team also showed an effort to get around the constraints of the Anti Deficiency Act. So for example, during the shutdown, the longest shutdown we've ever had, prompted by Congress's unwillingness to give the administration all the money to build the wall at the southern border that they'd requested. The Trump administration, you know, flouted, the GAO found the Anti Deficiency Act in a whole number of ways by keeping various parts of the government open. They didn't have money to do so, so that violated the Anti Deficiency Act.

And then in a second version of violations of the Anti Deficiency Act, after the GAO found violations of the Anti Deficiency Act, the administration refused to disclose them to Congress, thereby doing a second round of violations.

So, right, like, on both ends of the, of the dimension, right, like, impoundment and on the Anti Deficiency Act side of things, the Trump team has shown us sort of a willingness to flout the spending constraints. And then, of course, in the middle, right, like, so you can't spend what you don't have, you've got to spend what you do have. And then in the middle, you're sort of supposed to spend it the way we, Congress, tell you to. That's the, those are the premises of all of those detailed laws that Zach was just talking about.

And, you know, listeners will recall about all of the moving money around for various things, declaring emergency, and moving money around to support building the wall. There's also sort of efforts to, you know, impose massive conditions a-textually on grant funding and to, you know, take money away for reasons that appear to be pretextual and so forth.

So there's just like a lot to keep an eye on in this space. And especially because this is the appropriation process is kind of the only regular process that Congress has to weigh in on everything. If the administration is coming in and saying, as they said at the end of the last administration, we're working on developing a theory that, you know, we'll let the president do whatever he wants, whenever he wants to do it with money. That's basically like saying, we're not going to let Congress bind us on everything, on anything.

And I think that's a deeply troubling prospect for the rule of law, regardless of, you know, agreement or disagreement with the ultimate policy choices that the administration might be making. The macro question is, you know, a willingness to completely flout law.

Quinta Jurecic: And with that, we're gonna leave it there. Eloise, Zach, thank you so much for coming on. And it sounds like we will have a lot more to talk about when it comes to impoundment in the years to come.

Eloise Pasacoff: Thanks for paying attention to these issues.

Zachary Price: Thanks so much for having us.

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