The historical fiction behind Musk & Vought's cuts

A comprehensive rebuttal to the myth that presidents have sweeping historical powers to impound funds

The USS Constitution in 1812. James Madison withheld congressionally appropriated funds for gunboats, but only because Congress had given him clear permission to do so.

If you want to understand the degree of strain our democracy is under, look at one question: Who controls the money? The ongoing attempt to overturn over two centuries of established law by transferring the power of the purse from Congress to the White House is one of the most consequential executive power grabs in American history.

This may sound academic, but the effort by the current administration — led by Elon Musk and Office of Management and Budget Director Russ Vought — has the potential to upend trillions of dollars annually in federal spending that is supposed to benefit the American people. In practical terms, unless the courts step in, Americans may not be able to depend on any government-provided program or benefit that goes against the whims of two unelected bureaucrats, Musk and Vought.

But, lawless as it may be, this radical shift does have a pretense — a one-word cover story, if you will. It’s called “impoundment.” The notion that the president has an inherent presidential power to impound, or withhold, congressionally appropriated funds.

This pretense doesn’t hold up. The impoundment theory, advanced principally by the Center for Renewing America (CRA), which Vought founded, relies heavily on a deeply misleading — and at times outright false — retelling of history. CRA claims that, before Congress passed the Impoundment Control Act in 1974, presidents routinely, systematically, and unilaterally impounded funds, and that it was “overwhelmingly understood” that the Constitution granted them the right to do so.

In a new report released today, we go through every aspect of the purported impoundment argument. In it, we show that nothing in the Constitution’s text and structure, federal case law, or American history supports the existence of a presidential power to impound. This theory is completely baseless.

In fact, the report conducts an in-depth analysis of every historical example put forward to support the myth of executive impoundment and finds the exact opposite to be true: throughout history, the overwhelming understanding and practice has been that the president must obey Congress’s spending instructions.

Congress holds and has always held the constitutional power of the purse. There is no inherent presidential power to impound funds. There never has been.

If you don’t have time to read the whole thing, here is a synopsis:

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The Constitution and case law could hardly be clearer

First, the Constitution gives Congress, and Congress alone, the power of the purse.

“Where the purse is lodged in one branch, and the sword in another, there can be no danger,” said Hamilton. The purse is “that powerful instrument” for “reducing. . . all the overgrown prerogatives of the other branches of the government,” wrote James Madison.

For over two centuries, federal courts have consistently upheld this arrangement. The foundational case is Kendall v. United States ex rel. Stokes, an 1838 Supreme Court ruling rejecting broad presidential authority to decline to spend appropriations. The details are complicated — involving Andrew Jackson’s appointed postmaster general and contract mail carriers in Baltimore — but the Court’s conclusion was not:

This is a doctrine that cannot receive the sanction of this court. It would be vesting in the President a dispensing power, which has no countenance for its support in any part of the constitution; and is asserting a principle, which, if carried out in its results, to all cases falling within it, would be clothing the President with a power entirely to control the legislation of congress, and paralyze the administration of justice. To contend that the obligation imposed on the President to see the laws faithfully executed, implies a power to forbid their execution, is a novel construction of the constitution, and entirely inadmissible.

In the 186 years since Kendall, further court decisions and new laws have only strengthened the case against an inherent impoundment power.

In the 1970s, Richard Nixon attempted a wide-ranging array of impoundments. He asserted, like Trump, a constitutional right to do so. This drew fierce backlash from Congress, eventually leading to the passage of the Impoundment Control Act.

But, in addition to a legislative response, these attempts at impoundment were also tested in the courts — where Nixon resoundingly lost.

In a decision consistent with the courts’ overall reception of Nixon’s arguments, Judge Gesell wrote:

At least with respect to the programs involved here, there is no basis for defendants’ assertion of inherent constitutional power in the Executive to decline to spend in the face of a clear statutory intent and directive to do so…. The defendants have no residual constitutional authority to refuse to spend the money.

By the time the question was appealed, Nixon had given up on his constitutional argument. Only one impoundment case made it all the way to the Supreme Court, where the Nixon Administration expressly disclaimed any constitutional issue. In fact, the solicitor general essentially agreed that the Constitution only gives the president the power to withhold appropriations when Congress has given authorization to do so.

Because the Nixon cases were unequivocal, impoundment claims have not been asserted in court since.

In recent decades, though, a number of prominent jurists (including proponents of a unitary executive and two current Supreme Court justices) have agreed that there is no inherent presidential impoundment power.

Just a few examples:

• Justice Scalia in 1998 wrote in concurrence that “President Nixon, the Mahatma Gandhi of all impounders, asserted at a press conference in 1973 that his ‘constitutional right’ to impound appropriated funds was ‘absolutely clear.’ Our decision two years later in Train v. City of New York, proved him wrong.”

• Justice Rehnquist wrote a memorandum as head of the Justice Department’s Office of Legal Counsel concluding that “[w]ith respect to the suggestion that the President has a constitutional power to decline to spend appropriated funds, we must conclude that existence of such a broad power is supported by neither reason nor precedent.”

• Justice Kavanaugh, in a 2013 case before the DC Circuit Court of Appeals, recognized that “a President sometimes has policy reasons (as distinct from constitutional reasons. . .) for wanting to spend less than the full amount appropriated by Congress for a particular project or program. But in those circumstances, even the President does not have unilateral authority to refuse to spend the funds. Instead, the President must propose the rescission of funds, and Congress then may decide whether to approve a rescission bill.”

• Justice Thomas, in a 2024 case, explained that “early legislative bodies exercised a wide range of discretion. Some appropriations required expenditure of a particular amount, while others allowed the recipient of the appropriated money to spend up to a cap.”

The (actual) history of presidential impoundments

Proponents of the impoundment theory often counter the legal and constitutional history by claiming that presidents have, in practice, always used impoundments in a sweeping, discretionary way. CRA claims that it has been “overwhelmingly understood” throughout American history — from the founding until the Nixon presidency — that the president cannot be compelled by Congress to spend federal funds.

Frankly, this claim is absurd.

By selectively and misleadingly summarizing historical events, CRA assembles an alternative history that superficially supports their argument. By our count, CRA offers 41 examples of past presidents supposedly impounding funds. But these examples are uniformly not what they appear to be. (If you want to go through all 41 examples — divided into 60 different alleged impoundments — we walk through all of them in the appendix to the report and in a database here).

For instance:

• Thomas Jefferson withheld congressional appropriations for navy yards. But… his decision to “suspend[] and slacken[]” these expenditures seems to have been a legitimate attempt to clarify and comply with the intent of Congress — not to overrule it.

• James Madison impounded funds appropriated for “the crews of gunboats in New Orleans.” But… Congress had given him clear permission to do so by appropriating “a sum not exceeding four hundreds thousand dollars” (our emphasis) to employ those crews, and explicitly stating that Madison may discharge those crews “if in his judgment their service may be dispensed with.”

• Ulysses Grant impounded funds in the Rivers and Harbors Bill of 1876. But… Congress challenged the impoundments and his administration clarified that they were relying on their interpretation of laws passed by Congress, not any constitutional power to impound.

• Franklin Roosevelt impounded funds on several occasions during World War II, when concerns about the war effort likely overcame reservations about exceeding statutory limits. But… his administration offered only a vague and seemingly reluctant constitutional justification, it led to vehement and repeated congressional objection, and — to boot — after the war, the Budget Bureau essentially admitted that it did not have unilateral authority to withhold funds, asking Congress to pass a law allowing it to hold funds in reserve in certain circumstances to avoid the issue in the future. Congress ultimately did in 1950.

None of these examples come close to establishing the kind of “systematic, unbroken… and never before questioned” historical practice necessary to support a sweeping inherent presidential power.

Overall, of the 41 examples cited by CRA, we find there are only 12 in which presidents impounded funds against the instructions of Congress. Six took place within one three-year period (during the presidency of Franklin Roosevelt), and almost all of the 12 were either: (1) putatively justified, at least in part, based on statute; (2) vigorously opposed by Congress; or (3) in one prominent instance, overturned by the courts.

(Again, if you want to review all 41 purported examples, they’re all in the report and here in a sortable database).

It’s also worth keeping in mind the even larger context: Throughout US history, Congress has made innumerable appropriations. A single appropriations bill can contain hundreds of individual line items. Yet CRA only identifies 41 examples, and none that truly support their claim. That’s because, by-and-large, from our nation’s founding, presidents have faithfully deferred to Congress’s power of the purse — as the Constitution requires.

A life-and-death test for our republic

This is all one of those exercises that can feel a little academic, like a law school hypothetical or a debatable constitutional arrangement (in a moment when settled things feel suddenly less-than-settled). In fact, the very existence of a supposed “debate” over whether the president has an inherent power to impound funds creates the impression that both sides have merit.

But there really isn’t much gray area here, or any serious debate.

The attempt to manufacture a presidential impoundment power essentially out of thin air is nothing short of a radical power grab, unprecedented in American history. But the theory’s proponents may hope to create enough of a smoke screen that sympathetic justices on the Supreme Court (even those who’ve previously rejected this notion) feel comfortable overruling both the Founders and over two centuries of subsequent precedent.

If that happens, the consequences go much further than just Trump and Musk’s ability to cut programs at will. An impoundment power would permanently transform the system of government set out in the Constitution, and move the United States from a legislative republic to something much more closely resembling an elected monarchy.

If the president had a constitutional power to impound funds, it would, for example:

• Unravel the separation of powers. Congress would be demoted from the first branch in our constitutional system to more of a spending control body for the presidency — able to set limits on overall spending, but otherwise powerless to direct the executive branch with any firm authority.

• Create wild and unpredictable swings in policy. As each new president came into office, he or she would be able to radically reshape policy without any participation by Congress. Even for many laws beyond appropriations, the president could overrule Congress in practice simply by impounding all funds necessary to implement those laws. (This is a large part of what the administration is attempting to do right now.)

• Sever most Americans’ representation in budget decisions. Relatively few constituents, by nature, can have the president’s ear on spending. A far, far larger proportion can — and do — make their voices heard through their elected representatives in Congress. A presidential impoundment power would render that representation effectively meaningless.

• Open up a powerful weapon of political abuse and corruption. When spending decisions are controlled unilaterally by the president — and not through a lawful, legislative process — that means every single budget line item is a potential vector for abuse and corruption. If a president wants to pressure a member of Congress on a vote, what’s to stop them from threatening to cancel federal spending in their district? Or what about canceling defense contracts unless the contractor donates to the campaign? Or denying government benefits to places, groups, or individuals that express opposition?

• Feed a cycle of retaliation and polarization. Already, presidential elections lead to political whiplash. With a presidential impoundment power, that dynamic would get far worse — with every new administration potentially using it to punish and retaliate against the supporters of the last one.

But again, we should not even need to have this conversation — the Constitution, the law, and history are all crystal clear: there is no inherent presidential power to impound funds. We need not accept any of this as legitimate grounds for debate.

For all of our resources and information about impoundments, click here.

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