The Trump administration has again proposed end-of-year rescissions to cancel appropriations for wasteful Washington spending.
In response, the Government Accountability Office (GAO) has taken its strongest stand yet in defense of the Congress’ authority to force the Executive Branch to imprudently spend taxpayer dollars, finding that the proposed rescissions subvert “both the constitutional process for enacting federal law and Congress’s constitutional power of the purse.”
GAO has statutory authority to bring an action in this matter and may be the only party able to obtain judicial review. The independent watchdog should use that authority to take the president to court this year so that the judiciary can resolve the limits of Congress’s power of the purse and the president’s authority under the Impoundment Control Act (ICA).
The current debate has been going on for 50 years. The heart of the matter is whether the president, acting through an executive branch agency, can choose to spend less than the full amount appropriated when the public purpose can be achieved at a lower cost.
Historically, presidents have spent less than the amount provided with little resistance from the Congress.
That changed with enactment of ICA, which was foisted upon a weakened President Richard Nixon in response to his use of executive authority to withhold spending. The ICA required explicit congressional approval before the president withheld funds, effectively forcing the executive to spend every dollar appropriated whether the full amount of spending was needed or not.
The ICA left an opening for the president to act unilaterally within 45 days of the end of the fiscal year. This authority has been called a “pocket rescission.” The question is whether the pocket rescission is legal or not.
President Donald Trump has been the first to intentionally use the pocket rescission to reduce spending. Last year the technique led to the cancellation of $4.9 billion in international affairs spending, which the GAO did not challenge in court.
The Trump administration argues that common sense and prudent executive administration consistent with the constitutional requirement (Art. II, § 3) that the president “take Care that the Laws be faithfully executed,” dictate that the executive branch not spend the full amount of public funds allocated if the purpose of the law is fulfilled.
The pocket rescission takes excess funds off the table permanently, making them unavailable for potentially other spending. GAO’s interpretation is that bureaucrats should attempt to spend these funds prudently until the latest possible moment.
Congressional appropriators–who are not charged with the day-to-day operation of government programs–argue on a bipartisan basis that they alone know the proper amount to be spent. In their view, appropriations levels passed by Congress and signed by the president act as both a floor and ceiling on public spending for a given purpose. The Trump administration argues that it is a ceiling, but not a floor.
One of the rescissions proposed by the administration this year illustrates the absurdity of the claim.
The president has proposed rescinding $567 million (of $6.3 billion) appropriated in 2024 for grants to nonprofits that provide services to noncitizens. OMB states in support that the program “is overfunded due to the Administration’s successful border policies.”
It would be wasteful to even try to spend money on contractors to provide services to customers who do not exist. Yet, that’s what would be required to be compliant with GAO’s opinion.
This debate will never be settled without judicial intervention. GAO considers itself to be an independent legislative branch agency. In that role, GAO would do disservice to both Congress and the public by not seeking judicial review.
The battles over pocket rescission in the first two years of this second Trump term clearly show that there is an impasse between the executive and legislative branches on the requirements of the ICA.
In fairness to all, the Trump administration should have its day in court to defend its position. The GAO, by using its statutory authority, can ensure a fair fight on the merits.
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[ H/T The Daily Signal ]
