Impounding, Expounding, and a Resounding “No”: The President’s Power of Impoundment

Blog Post | 113 KY. L. J. ONLINE | March 20, 2025

Impounding, Expounding, and a Resounding “No”: The President’s Power of Impoundment

By: Elijah Raymond, Staff Editor, Vol. 113 

Efforts to reduce federal spending through the Department of Government Efficiency have engendered controversy and legal battles during President Trump’s first few weeks in office.[1] Following a chaotic Office of Management and Budget (OMB) freeze on around three trillion dollars in funds, a federal judge issued a preliminary injunction requiring those funds be delivered, citing a lack of executive discretion to control spending.[2] The President, however, disagrees. To exercise greater control over spending, President Trump ran on returning the impoundment power to the Executive Branch.[3]

Impoundment is presidential refusal to spend sums appropriated by Congress.[4] Presidents from Thomas Jefferson to Richard Nixon have exercised the power to varying degrees.[5] Jefferson, for instance, did not impound mandatory funds.[6] Jefferson impounded funds that he was authorized but not required to spend on gunboats for the Mississippi River.[7] Later Presidents who did impound mandatory expenditures often resolved the conflict informally with Congress.[8] Nixon elevated impoundment to its zenith by impounding large sums spent on social programs contrary to his policy goals.[9] Nixon’s outrageous impounding led Congress to enact the Impoundment Control Act of 1974, which requires congressional approval to defer or rescind spending.[10]

Despite claims of an executive constitutional power of impoundment,[11] the President cannot, for formal and functional reasons, wield an indefeasible impoundment power. The Framers of the Constitution could not have conceived of granting unbridled discretionary enforcement authority to the executive over appropriations. Madison described the spending power as “the most complete and effectual weapon with which any constitution can arm the immediate representatives of the people.”[12] Decisions regarding what sums were to be expended were left to Congress, not the President.

The Framers viewed executive power by its very nature as limited to execution and likely vested that conception of power in the President.[13] The Vesting Clause vests the President with “[t]he executive Power,”[14] and the Take Care Clause requires the President to “take Care that the Laws be faithfully executed.”[15] If the President is vested only with enforcement power, declining to spend funds appropriated by Congress deviates from executive power of enforcing law into legislative power of creating law. In deciding what sums to distribute, the executive, in essence, revises what the law is. While the President may at times decline to enforce an unconstitutional law,[16] it would be a perverse inversion to interpret the Take Care Clause as granting the President authority to not execute constitutionally legitimate exercises of legislative appropriations power.[17]

Renowned conservative jurists have agreed that the President has no constitutional impoundment power. William Rehnquist, then Assistant Attorney General under President Nixon, advised him that the existence of a discretionary impoundment power was “supported by neither reason nor precedent.”[18] In Train v. City of New York, the Supreme Court unanimously held that the statute at issue did not grant President Nixon discretion to disperse less than the appropriated sums.[19] While not directly dispositive of an executive constitutional impoundment power, there would be no need for the statute to grant the President discretion if the President already possessed an independent impoundment power. Additionally, the case was decided on facts preceding the Impoundment Control Act, evidencing that even without the Act, the President’s ability to impound was limited by congressionally conferred discretion.[20] In a later repudiation of a constitutional impoundment power, Justice Scalia wrote 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.”[21]

Without an independent power, the President can only rely on congressional consent to impound. While historical executive practice acquiesced to by Congress may create a presumption of consent,[22] the history of conflict between the branches regarding impoundment would seem to belie this conclusion.[23] Even assuming arguendo there was past acquiescence, the passage of the Impoundment Control Act would break that chain of practice and force the President to rely on his own constitutional powers,[24] of which impoundment is not one.

Functionally, if the President were able to impound any and all funds appropriated, then the will of Congress would be frustrated. A far cry from execution, the President could reshape national spending priorities arbitrarily, transforming legislative deliberation into executive fiat. Perhaps a presidential impoundment power would assist the President’s nascent battle to combat waste. But our constitutional system does not facilitate political expediency and accordingly separates the powers of government. Impoundment contradicts this very notion, monopolizing power in a manner that is “[i]n theory … an absurdity—in practice a tyranny.”[25]

[1] Melissa Quinn, Judge Extends Block on Trump's Federal Assistance Freeze Indefinitely, CBS News, https://www.cbsnews.com/news/trump-freeze-federal-assistance-judge-blocks/ (Mar. 6, 2025, 10:49 AM).

[2] See id.

[3] See Zachary Price, A Primer on the Impoundment Control Act, Lawfare (Jan. 28, 2025, 1:50 PM), https://www.lawfaremedia.org/article/a-primer-on-the-impoundment-control-act.

[4] Id.

[5] See id.

[6] See id.

[7] Id. (emphasis added).

[8] Id.

[9] Id.

[10] Id.

[11] Mark Paoletta & Daniel Shapiro, The President’s Constitutional Power of Impoundment, Ctr. for Renewing Am. (Sept. 10, 2024), https://americarenewing.com/the-presidents-constitutional-power-of-impoundment/.

[12] The Federalist No. 58 (James Madison).

[13] John Harrison, The Article II Executive Power and the Rule of Law (Part III), reason: The Volokh Conspiracy (July 24, 2019, 8:02 AM), https://reason.com/volokh/2019/07/24/the-article-ii-executive-power-and-the-rule-of-law-part-iii/.

[14] U.S. Const. art II, § 1, cl. 1.

[15] U.S. Const. art II, § 3.

[16] Presidential Auth. to Decline to Execute Unconstitutional Statutes, 18 Op. O.L.C. 199, 199 (1994).

[17] U.S. Const. art I, § 9, cl. 7.

[18] Presidential Auth. to Impound Funds Appropriated for Assistance to Federally Impacted Schs., 1 Op. O.L.C. 303, 306 (1969).

[19] Train v. City of New York, 420 U.S. 35, 44–49 (1975).

[20] Id.

[21] Clinton v. City of New York, 524 U.S. 417, 468 (1998) (Scalia, J., concurring in part and dissenting in part) (citations omitted).

[22] Dames & Moore v. Regan, 453 U.S. 654, 686 (1981) (quoting Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 610–11 (1952) (Frankfurter, J., concurring)).

[23] Price, supra note 3.

[24] See Youngstown, 343 U.S. at 637 (Jackson, J., concurring).

[25] Helvidius Number 1, [24 August] 1793,” Founders Online, Nat’l Archives, https://founders.archives.gov/documents/Madison/01-15-02-0056. [Original source: The Papers of James Madison, vol. 15, 24 March 1793 – 20 April 1795, ed. Thomas A. Mason, Robert A. Rutland, and Jeanne K. Sisson. Charlottesville: University Press of Virginia, 1985, pp. 66–74.]