Impound, Baby, Impound: How Trump Could Use Constitutional Authority to Cut Budget Bloat 

D onald Trump recently announced that if he is reelected he will establish a commission on government efficiency, headed by Elon Musk, to audit government programs and recommend “drastic reforms” to cut wasteful spending. For this effort, we say, “Impound, baby, impound.”

Trump has indicated that he would revive the president’s constitutional power to impound funds, and we are certain that impoundment would help him and Musk root out unnecessary spending. The American people would, or at least should, applaud an energetic chief executive taking action to ensure that their tax dollars are spent efficiently and effectively.

Since America’s Founding, it has been understood that Article II of the Constitution vests the president with authority to decline to spend the full amount of an appropriation. This commonsense power, known as impoundment, was routinely exercised for most of this nation’s history. In 1974, however, at the height of the Watergate scandal, Congress enacted the Impoundment Control Act (ICA), which purports to divest the president of his constitutional impoundment authority.

The ICA requires the president to spend every last dime of an appropriation, regardless of whether the full amount of the appropriation is necessary to accomplish the program. For example, if Congress passed a law saying the president must spend $100 million to build ten new tanks, and he could build them for $90 million, he would be breaking the law to intentionally spend less than the full amount. This insanity could exist only in Washington, D.C., a city run by special interests in bed with Congress. The ICA is an unconstitutional infringement on the president’s executive power.

The Constitution vests the entire “executive power” in the president so he can act with energy and unity in implementing programs enacted by Congress. Of course, circumstances may arise that render the full expenditure of an appropriation unnecessary or unwise. The president is the only officer who can “command a view” across the entirety of all government programs and ensure that they are being implemented properly and not in conflict with one another.

The take-care clause in Article II of the Constitution provides that presidents must “take Care that Laws be faithfully executed.” It empowers the president to ensure that his agency officials are faithfully executing programs in a coherent manner that does not bring them into conflict with other statutory or constitutional obligations.

Some critics of the president’s impoundment authority claim that if an appropriation requires the president to spend $100 million on a program, the take-care clause requires him to spend all of that appropriation.

Attorney General Judson Harmon, appointed by Grover Cleveland, explained in 1896 that just because an appropriation is worded with mandatory language does not mean that the executive is “bound to expend the full amount if the work can be done for less.”

Further, in 1965, Attorney General Ramsey Clark issued an opinion stating, “The duty of the President to see that the laws are faithfully executed, under Article II, Section 3 of the Constitution, does not require that funds made available must be fully expended.”

Additionally, the Constitution’s commander-in-chief clause independently empowers the president to impound spending related to the armed forces and national security. For example, if an appropriation provides funding to a foreign power that the president determines is an active threat to our nation’s security, the president has a constitutional duty to act in a manner that protects our national-security interests, regardless of what the appropriation requires. The president’s “take Care” obligations run first to the Constitution and then to constitutional statutes.

Some have claimed that impounding funds is akin to the Line Item Veto Act, which the Supreme Court held unconstitutional in Clinton v. City of New York because it authorized the president to actually strike text from a statute. But the president is not deleting text from a statute when he declines to spend the full amount of an appropriation any more than a police officer is deleting text from an ordinance every time he declines to arrest a jaywalker.

Congress recklessly appropriates hundreds of billions every year for programs without regard to whether funds are spent wisely or effectively. The president must use his impoundment powers to bring fiscal discipline and sanity to our out-of-control spending.

Previous presidents have used the impoundment power in the same way. For example, President Harding tasked the first director of the Bureau of the Budget, Charles Dawes, with directing every agency to find savings in their budget, report such savings to the director, and to spend less than the full appropriation. In fact, Harding met with his Bureau of the Budget on July 1, 1921, to give them his personal charge. In discussing the efforts to find savings, Harding said, “There will be many heart burnings. . . . It isn’t any easy thing to change the habits of a country. It isn’t an easy thing to stand up to those who want to spend.”

Truer words have never been spoken about Washington, D.C., and it has only gotten much worse. Congress mindlessly spends money regardless of whether it’s necessary or doing any good. The citizens of this country would welcome Trump and Musk working together to find significant savings in our government programs — and using the impoundment power to accomplish that task.

Mark Paoletta is a senior fellow at the Center for Renewing America. He previously served as general counsel of the Office of Management & Budget in the Trump administration from 2018 to 2021. He also served as a lawyer in the George H.W. Bush White House Counsel Office and as chief counsel for Oversight and Investigations for a U.S. House Congressional Committee. He practices law in Washington, D.C.

Daniel Shapiro practices law in Washington, D.C., and is a former law clerk to Justice Clarence Thomas.