Russ Vought’s Article I takeover
Explaining the Trump spending freeze and impoundment theory
Whether they like it or not, Congress may not have control over the budget anymore...
Why? Because Russ Vought — the Trump Administration’s nominee to lead the Office of Management and Budget (OMB) — is angling to take over their job of deciding what programs get funded by the federal government and how much money they get.
For centuries, Congress has held the power of the purse. Per the Constitution, Congress writes the laws laying out how much money the federal government will spend and what it will spend it on. Once the president signs the law, it is his job to implement it — that is, to spend the money.
That constitutional arrangement may not last.
Last week, Vought testified, under oath, that (if confirmed to lead OMB) he intends to create a process to impound — that is, not spend — potentially any and all funds that have been appropriated under laws passed by Congress and signed by a president.
This week, we just got an idea of what that kind of process looks like when one agency, the OMB, decides to take Congress’s job and pick and choose which federal programs get funded and which don’t.
It’s absolute chaos.
A test-run of a White House spending takeover
On Monday night, a memorandum from OMB froze all federal grants and loans appropriated by Congress. Then, throughout Tuesday, OMB released additional documents attempting to clarify what programs were frozen. And through it all, real people were having trouble in the real world getting access to health care and social services.
Even though a judge temporarily halted the freeze, that’s not really the point. This is the Trump Administration's opening attempt to wrest the spending power away from Congress and into the hands of the president and his appointees.
Keep in mind, President Trump is not the one going line-by-line in a spreadsheet deciding which programs to fund — not the way Congress does when it spends months debating 12 different appropriations bills. Instead, it will be Vought making the call about what gets funded and what doesn’t. And, he isn’t an elected official accountable to voters. He only answers to one person: Trump. The White House has already said that organizations relying on federal funding should reach out to Vought to make their case — even before he is confirmed — because Vought is making those decisions now, not Congress. Despite what the White House Press Secretary says, Vought (who, again, is still not confirmed) is not required to answer those calls. OMB officials aren’t in the business of doing constituent services.
In Vought’s ideal world, Congress will be reduced to a mere advisory role in the budget process. Legislators can suggest which programs get funding, but the decision will ultimately be up to him, an unelected bureaucrat.
The potential consequences here are pretty severe. If Vought and the Trump administration get their way, any future president, Democrat or Republican, will be able to unilaterally defund any program — whether it’s defense appropriations or federal highway dollars in a specific congressional district — essentially at will.
Vought claims his theory is established by “200 years of practice.” It’s hard to overstate how wrong he is. The system of checks and balances the Founders designed does not give the president unchecked power to execute only the laws passed by Congress that he agrees with. When Congress appropriates funds, the president must spend them.
Just some of many examples of how Vought’s claim that presidents have exercised an inherent power to impound funds for “200 years” is wrong and misleading:
In many instances where presidents spent less than the full amount appropriated, Congress had actually granted statutory discretion to spend less — like in 1809 when Congress told Madison he couldn’t spend more than $400k on gunboat crews but were fine with him spending less.
In several instances, Congress expressly directed the president to impound funds — like in 1950, when Congress asked Truman to cut $550 million in spending that wasn’t essential to fight the Korean War.
In some instances when the executive branch has actually impounded funds in defiance of Congress, courts have acted to check that abuse of authority as unconstitutional — like in 1838 when the Supreme Court said the Postmaster General could not get away with paying a mail delivery contractor less than Congress told him to.
Conservative justices have rejected a presidential impoundment power
As early as 1838, the Supreme Court held that executive branch officials don’t have the power to withhold money Congress requires them to spend.
When the then-attorney general asserted that the Constitution gives the president that power, the Supreme Court roundly rejected the argument: “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.” Kendall v. United States ex rel. Stokes, 37 U.S. 524, 612-13 (1838).
More recently, even Supreme Court justices with a broad view of presidential power — like Justices Scalia, Rehnquist, and Kavanaugh — have all agreed that the president does not have inherent authority to impound funds, but rather must be granted authority from Congress to spend less or rescind funding.
Justice Scalia wrote in Clinton v. City of New York: “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, 420 U. S. 35 (1975), 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 D.C. 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.”
Just as the Justices have rejected the notion of an inherent presidential impoundment power, the Supreme Court recently affirmed Congress’s power — namely that the legislature’s power of the purse has long included the power to require the executive to spend a particular amount of money.
Justice Thomas, in the 2024 CFPB 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.”
Vought’s impoundment theory has repeatedly lost in federal court
Since the Supreme Court’s ruling in Kendall in 1838, numerous lower courts have held that there is no inherent presidential power to unilaterally impound funds appropriated by Congress.
Not to belabor the point, but here are six different examples, all from the Nixon administration:
A federal court in Virginia held that Nixon’s impoundment of $6 billion out of a total $11 billion appropriated by Congress for constructing waste treatment plants was in conflict with the “letter and spirit” of the law, and recognized that “[m]ore than a century ago the United States Supreme Court laid to rest any contention that the President has the power suggested.” Campaign Clean Water, Inc. v. Ruckelshaus, 361 F. Supp. 689, 696, 700-01 (E.D. Va. 1973).
A federal court in D.C. held that the head of the Office of Economic Opportunity could not defund and dismantle the agency just because the president’s budget proposed eliminating funding for it. The court called this attempt at impoundment by the Nixon Administration tantamount to a claim “that the Constitution confers the discretionary power upon the President to refuse to execute laws passed by Congress with which he disagrees.” Loc. 2677, Am. Fed'n of Gov't Emp. v. Phillips, 358 F. Supp. 60, 77 (D.D.C. 1973).
Another court ruled in favor of Louisiana and 29 other states that brought a class action demanding that the Nixon administration disburse millions in education funds that it had impounded unlawfully. In Louisiana. v. Weinberger, the U.S. District Court for the Eastern District of Louisiana stated: “[T]his Court is decidedly unable to accept defendants' position that, regardless of the clear intent of Congress as expressed in the wording of a statute, the executive may exercise his broad powers pursuant to Article II of the Constitution. . . even where this means refusal to comply with the terms of a statute.” 369 F. Supp. 856, 864 (E.D. La. 1973).
Community Mental Health Centers won a court order requiring the Nixon administration to spend about $50 million in grants to health centers that Nixon’s health department impounded. The court held that “there is no basis for defendants' assertion of inherent constitutional power in the Executive to decline to spend [those funds] 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.” Nat'l Council of Cmty. Mental Health Ctrs. v. Weinberger, 361 F. Supp. 897, 901, 903 (D.D.C. 1973).
After Congress denied President Nixon’s request to rescind funds for a summer work training program in New York City, the administration impounded the funds. Participants and agencies that ran the summer program successfully challenged the impoundment. The court held that the “Executive Branch has no authority, even for motives such as the control of inflation, to decide for itself whether to obey a law after the President has signed a bill into law, or after Congress has overridden a Presidential veto.” Cmty. Action Programs Exec. Dirs. Ass'n of N.J. v. Ash, 365 F. Supp. 1355, 1360 (D.N.J. 1973).
A D.C. federal court ruled that the Nixon administration had no power to withhold federal highway funding from states seeking their share of grants. It held that “the President's veto power under Article I, section 7 of the Constitution certainly could have been utilized to prohibit” the spending, but rejected the “argument. . . that the President's express or implied constitutional powers justify holding back authorized funds.” State of Louisiana ex rel. Guste v. Brinegar, 388 F. Supp. 1319, 1324-25 (D.D.C. 1975).
The brazen unconstitutionality of Vought’s power grab from Congress doesn’t mean he will fail
A note of warning: Don’t assume that just because this is all so plainly unconstitutional Congress’ power of the purse is safe. Vought could end up stealing some of Congress’s power, and getting more authority to pick and choose what programs to fund or destroy.
If that happens, it will be because Congress surrenders, with Republican senators and representatives feeling compelled to hand over their Constitutional prerogative because Trump is in the White House.
This may already be happening. Consider the reaction of Rep. Tom Cole, the House Appropriations Chair, to Vought’s freeze:
I’m not a lawyer, I can’t pontificate on what’s legal but I suspect what’s happening is what most Republicans would be supportive of… Appropriations is not a law, it’s the directive of Congress.
(As noted above, appropriations are very much law!)
But a surrender to Vought on spending authority is shortsighted. Even if congressional Republicans agree with the policy goals behind Vought’s cuts today, they might not agree with every choice Vought makes over the next four years.
Plus, Vought isn’t president; there might be some new guy making those decisions in a few years, and who knows whether Congress will agree with him. More than that, if Congress gives up their power of the purse they are handing every future president and their OMB director the same enormous power, permanently.
So, before they confirm Russ Vought to be OMB Director, senators should think about all the times they fought to get something they or their constituents care about funded. They should consider what it would have meant if a past OMB director — Shalanda Young or Mick Mulvaney or Shaun Donovan or Jack Lew — had their hand on a button to unilaterally cancel that funding with no recourse or appeal.
That’s the arrangement Vought and the Trump administration are offering them. They should say no.
Thanks for your superior article here. Really well done. This is of course part of the Project 2025 people's attempt to take over the government as they clearly laid out. Along with other measures like offering career government employees 8 months of pay if they resign by February 6. This is so they can be replaced with Trump and Project 2025 loyalists. Stephen Miller told Jake Tapper on CNN yesterday that "98 percent of the workforce either donated to Kamala Harris or another left-wing candidate". This is some of what we'll be up against for the next 4 years and longer. We'll see if this ends up in the "Supreme" Court and how traitorous they might be in overturning this, as they did with Roe.
Thank you for this excellent analysis! Seems like a huge lynchpin. I have been calling my senators snd state AG, but all are MAGA. I appreciate the longer term consequences you suggested, I will use those in my future calls.