Impoundment is the power of the President to withhold from federal departments or agencies some or all of the funds appropriated by Congress. The Constitution does not explicitly consider crucial questions about spending powers: Must the President spend the money appropriated by Congress? Or are such appropriations optional, rather than mandatory?
In some instances Congress passes laws permitting or directing the President to withhold funds for programs. The Anti-deficiency Act of 1950 allows the President to impound funds if a program can be administered more efficiently by spending less. Civil rights laws direct the President to withhold funds from states, counties, cities, and private organizations that discriminate on the basis of race or gender. Faced with budget deficits, Congress sometimes gives the President “across the board” authority to cut all programs by a specified percentage. In all other cases Congress assumes that its appropriations are mandatory.
Some Presidents have claimed that they have a constitutional power of impoundment, which does not require any congressional approval and which permits them to instruct the Treasury to withhold some or all of the funds for programs appropriated by Congress.
Presidents may claim military necessity: President Thomas Jefferson once declined to spend funds appropriated for gunboats on the grounds that the funds would be wasted on inferior ships. President Franklin D. Roosevelt asserted his power as commander in chief during World War II to justify wartime deferrals of nonessential domestic programs. Presidents Harry Truman and John F. Kennedy also cited their powers as commanders in chief to justify impounding money designated for weapons.
Richard Nixon was the first President to engage in impoundments on a massive scale. He used no national security rationale because he targeted domestic programs he opposed, such as antipoverty and environmental projects. More than 30 federal lawsuits challenged these impoundments, and all were decided against the President. None of the decisions directly challenged Nixon's assertion that he had a constitutional power of impoundment. Instead, the judges looked at the language of the law requiring that cabinet-level officials spend funds for programs and decided that these laws had not given officials discretion to withhold funding.
Congress also responded negatively to Nixon's impoundments. A 1970 hospital construction bill explicitly forbade impoundments, and that same year a federal highways act was accompanied by a “sense of Congress” resolution that said impoundments were unconstitutional. A foreign aid bill in 1971 contained a provision that no funds could be expended until funds impounded by several departments were released.
By late 1973 Nixon had cut so many pet projects of lawmakers that he had lost the support in Congress of his natural allies, conservative Republicans and Southern Democrats concerned with high levels of federal spending. The backlash against Nixon's actions enabled Congress to pass the Budget and Impoundment Control Act of 1974. Under Title X of that act, the President could defer spending funds to a later year only if the House and the Senate did not disapprove; he could rescind funds that had been appropriated by Congress only by getting it to pass a law to that effect. The law specifically stated that the President had no constitutional power to impound. Since then, most requests to rescind spending have been rejected by Congress, but requests to defer some spending to later years are often accepted.
See also Budget and Impoundment Control Act, Congressional (1974); Budget, Presidential; Checks and balances; Executive power; Nixon, Richard M.; Recision bills
Sources
- Louis Fisher, Presidential Spending Power (Princeton, NJ.: Princeton University Press, 1975).
- James Pfiffner, The President, the Budget, and Congress: Impoundment and the 1974 Budget Act (Boulder, Colo.: Westview, 1979).
- Howard E. Shuman, Politics and the Budget: The Struggle between the President and the Congress (Englewood Cliffs, N.J.: Prentice Hall, 1992)
