Can the President Refuse To Spend Money Authorized by Congress?
Impoundment, line-item vetoes, and the tricky problem of cutting spending through the executive branch
Imagine, for a moment, a president who doesn't want to spend money. Given the last several decades of presidential history, this may sound fanciful. But assume that a president has successfully campaigned on spending less money, and perhaps even balancing the federal budget, and then, once in office, has decided to try to carry out that program. What would such a president do?
If a president wants the federal government to spend less money, then somewhere, somehow, at some time, someone with appropriate authority needs to actually stop spending money.
This is even more difficult than it sounds.
It's not just that in Washington, plans to spend more, but less than otherwise expected, are frequently denounced as debilitating cuts. Nor is it simply that bureaucrats stamp their feet and leak stories of supposedly draconian spending reductions to friendly media outlets. Nor is it even that the voting public, in its mass incoherence, seems to prefer a mix of high spending and low taxes—a luxury government lifestyle that it literally cannot afford.
There is an underrated impediment to spending less: the Constitution itself, at least if you're the president. The Constitution grants Congress the sole power of the purse. The executive branch is tasked with faithfully executing the laws Congress passes. If Congress passes a law saying jump, it's the president's job to jump. And if Congress passes a law that says spend, it's the president's job to spend.
This has turned out to be a problem for President Donald Trump, who set up a Department of Government Efficiency, or DOGE, that operates through the auspices of the U.S. Digital Service. Trump has described DOGE as run by the billionaire businessman Elon Musk, although it's never been quite clear whether he's formally in charge. It has pursued a variety of cuts and delays to executive-branch spending—suspending various grants and dismissing, according to some estimates, thousands of workers and contractors. Part of Musk's strategy has been to dig into the bowels of the federal payment systems themselves, the complex, often outdated computer systems that pay out vast sums every day. At times, Musk has seemed to be pursuing a goal of spending less by directly stopping the government systems that pay out money. If nothing else, it's a novel strategy.
One legal question is whether Musk, whose official status remains murky, has the authority to make these cuts. He appears to have the backing of the president, who in theory has authority over the workings of the executive branch—in theory, because another, bigger legal question is whether even the president has the authority not to spend money if it has been authorized and appropriated by Congress.
The practice of withholding or otherwise declining to spend duly authorized funds is known as impoundment, and it has a long and complex history. Courts have repeatedly said the president does not have authority to do this. In 1974, after years of fighting with President Richard Nixon over the practice, Congress passed the Congressional Budget and Impoundment Control Act with veto-proof majorities, and Nixon signed it into law. This law not only created the modern budget process; it strictly prohibited unilateral executive impoundment. And that would seem to be that.
But Trump isn't a president who always abides by historic norms or legal strictures.
In his first term, he violated the Impoundment Control Act on one notable occasion, according to one government watchdog. In his second term, he has once again tapped a man named Russ Vought to run the Office of Management and Budget (OMB). Vought is a self-described radical with roots in the Tea Party movement who views budget cutting as a key part of the culture war. He has also told Congress, on the record, that both he and Trump view the Impoundment Control Act as an unconstitutional limitation on executive power.
Vought's theories are well outside the mainstream, and even many ardent supporters of limited government disagree with him on that question, viewing Vought as far too willing to bend, or outright ignore, the rule of law. But even more than Musk, he is likely to be at the center of legal and practical battles about cutting the size and scope of the federal government. Because what Vought fundamentally believes is that the only way to cut government spending and bring the bureaucracy to heel is to radically empower the executive branch, giving the president power that the Constitution reserves for Congress alone.
Vought's ideas represent a deep and difficult challenge for those who want to cut spending and check executive authority, the classical liberals and libertarians who believe in limited government, a constitutionally constrained executive, and the rule of law. Because if Vought is right, you can't have all three.
Nixon's Nixes
The roots of the dispute over impoundment go back to 1972, when Congress passed the Federal Water Pollution Control Act amendments, a series of updates and expenditures that became better known as the Clean Water Act. Nixon believed the $24 billion law was too expensive: His biggest headache at that point was soaring inflation, and tens of billions in new federal spending seemed likely to make that problem worse.
Nixon vetoed the bill. Congress then mustered the two-thirds majority vote to override the veto. Nixon then simply refused to spend a large chunk of the funds—about $9 billion targeted at building out new sewage treatment infrastructure. This was arguably Nixon's most flagrant act of fiscal defiance against Congress, and it set up a legal showdown over impoundment.
Depending on who you ask and how you define it, impoundment is an old practice. In the early 1800s, President Thomas Jefferson decided not to spend $50,000 that had been appropriated on a fleet of new warships to fight on the Mississippi River, where naval conflict had broken out. In that particular case, not spending money was easy: Jefferson simply notified Congress that he wasn't going to spend the money due to a "favorable and peaceable turn of affairs" which "rendered an immediate execution of that law unnecessary." Neither Congress nor the courts objected.
When Nixon tried to withhold spending on sewage treatment, the outcome was rather different.
A group of cities, including New York, sued Nixon's Environmental Protection Agency, at the time headed by Russell Train, resulting in a yearslong legal battle over impoundment. Finally, the case, Train v. City of New York, reached the Supreme Court, which in 1975 ruled that Nixon's refusal to spend funds had been illegal. Nixon's constitutional duty as president was to take care to execute the laws faithfully. He didn't have the authority to not spend money as directed by laws passed by Congress.
Congress, meanwhile, had already taken matters into its own hands. The prior year, Congress had passed the Congressional Budget and Impoundment Control Act.
This law was designed not just to streamline the federal budget process but to assert the legislative branch's constitutional prerogatives by explicitly prohibiting impoundment. The Clean Water Act impoundment was Nixon's most significant attempt to refuse spending, but far from his only effort.
"The culture then was, the president has too much power," longtime Texas Republican and former Ways and Means Chairman Bill Archer explained a decade ago when asked about how the prevailing mood of the era informed the creation of the Impoundment Control Act. "We don't like the president. The president is abusing his power….The idea was, we're going to take power away from the president, and we're going to constitute it within the Congress." Distracted by the Watergate scandal and under pressure to make concessions to Congress, Nixon signed the act a month before he resigned.
After that, the matter was more or less settled until the 1990s, when the prospect of impoundment once again returned.
In 1996 Congress passed, and President Bill Clinton signed, the Line Item Veto Act. The law allowed the president, after signing an appropriations or tax bill, to "cancel" specific spending items or limited tax benefits within five days, subject to a fast-track congressional disapproval vote. This was viewed as a narrower alternative to impoundment. Rather than simply not spending funds, the president would formally cancel the provision. Clinton actively used the line-item veto 82 times in 1997, targeting expenditures he deemed unnecessary.
Many of these cancellations went unchallenged, but not all. That led to another court case, Clinton v. City of New York.
The city of New York was miffed that it had been denied funds by a president who had declined to spend congressionally appropriated money. Specifically, Clinton had canceled a provision that would have provided the state's hospitals with an estimated $2.6 billion. (Notably, the Medicaid tax funding was a provision of the Balanced Budget Act of 1997; this came at a time when there was bipartisan desire to reduce spending in order to keep deficits in check.)
In a 1998 decision, the Court held 6–3 that the line-item veto violated the Constitution's Presentment Clause. By empowering the president to unilaterally change a law after it had been duly enacted, the justices reasoned, the law had upset the balance of powers. Once a bill becomes law, the president's only options are to enforce it or seek its repeal. He cannot unmake the law on his own, even with prior congressional permission.
The Court's objection to the line-item veto stemmed from essentially the same as the philosophy behind the Impoundment Control Act and the Train decision: The president can veto a law in its entirety rather than sign it, but he cannot simply carve away at a law's provisions once it's in force.
Making It Ukraine
The Congressional Budget Control and Impoundment Act did not entirely work as intended. One justification for the law had been to rein in unaccountable spending, yet budget deficits ballooned in the 1980s. The annual budget process it laid out was followed only intermittently at first, and by the late '90s it had been all but abandoned. The nonpartisan Congressional Budget Office produced competent, generally respected work, but it was often dragged into bitter partisan disputes.
But in one respect it did work. No president after Nixon was able to unilaterally impound funds. That is, until Donald Trump.
In summer 2019, at Trump's direction, the OMB withheld approximately $214 million that Congress had appropriated for Ukraine Security Assistance—money tagged for weapons and training funds to assist in its defense against a Russian invasion. The hold was executed through special footnotes on federal spending schedules instructing that the Ukraine aid money could not be spent.
This act evolved into a sprawling scandal involving Trump and Ukrainian leader Volodymyr Zelenskyy, in which a whistleblower alleged that the "President of the United States is using the power of his office to solicit interference from a foreign country in the 2020 U.S. election"—by, the complaint said, "pressuring a foreign country to investigate one of the President's main domestic political rivals." At heart, the charge was that Trump was withholding federal aid in an effort to obtain a quid pro quo from a foreign government.
Most of the attention around the scandal focused on the more salacious charge that Trump was essentially trying to bribe or extort a foreign leader by manipulating the federal purse strings. Under pressure, Trump released the funds. But his initial refusal to spend money duly authorized and appropriated by Congress raised a core constitutional question as well: Was this an act of impoundment?
In 2020, the Government Accountability Office (GAO) concluded that "the Office of Management and Budget violated the law" by withholding the Ukraine funds. "Faithful execution of the law does not permit the President to substitute his own policy priorities for those that Congress has enacted into law," the auditors wrote. "OMB withheld funds for a policy reason, which is not permitted under the Impoundment Control Act." Citing the Clinton-era ruling on the line-item veto, the GAO warned that to withhold funds selectively was effectively to "amend" the law by executive fiat, which is prohibited under the Constitution.
From Nixon to Clinton to Trump, the legal consensus remained clear. But there were some who disagreed, and one of them was Russell T. Vought.
Vought Your Conscience
Russ Vought began his tenure in the first Trump administration as deputy director of OMB under the directorship of Mick Mulvaney. Like Mulvaney, Vought was a creature of the Tea Party movement that sprung up under President Barack Obama. The Tea Party movement was billed as a backlash against excessive government spending, a position complicated by the way that many Tea Party activists seemed to want to protect spending on the old-age entitlements that are the biggest contributors to long-term debt. But at least according to many of its leaders, its overarching goal was to cut the federal government down to size.
In the time before Trump, the Tea Party's influence could be seen at organizations like the Republican Study Committee (RSC), a coalition of conservative lawmakers in the House, and The Heritage Foundation, a conservative think tank that in 2010 founded Heritage Action to pursue more direct advocacy and lobbying work. Vought worked for both, as vice president of Heritage Action and as budget director for the RSC. He was both a Tea Party true believer and a budget wonk. Later, during the gap between the two Trump administrations, he set up an organization that tried to combine Tea Party–era government-cutting zeal and think tank fiscal wonkery with the new wave of Trumpified conservatism.
Founded in 2021, Vought's Center for Renewing America focused on the inner workings of the federal government—specifically, the staffing of executive branch agencies, and the sprawling system of barely accountable spending that makes up their budgets. The group's worldview combined the Trump movement's cultural panic with the Tea Partiers' government-slashing zeal.
In a 2022 essay for The American Mind, Vought argued that America is in a "post-constitutional moment," a "new regime" that is "more like an unwritten constitution which operates based on precedents." This "new Constitution," he wrote, was the product of a "slow-moving revolution" that in effect transformed America into a new country. The essay namechecked a slew of agencies and offices disfavored by the MAGA right—the FBI, the Department of Justice, the Centers for Disease Control and Prevention—and warned of an empowered expert class using their unelected positions to exert control over American life. "No constitutional amendments have been passed to enact this, but new legal paradigms have been introduced—a 'living constitution,' independent agencies, permanent, 'expert' civil servants—that have changed the underlying separation of powers at the core of our system."
Vought's solution: The American right should adopt "radical Constitutionalism" and "throw off the precedents and legal paradigms that have wrongly developed over the last two hundred years." The presidency, he warned, has become divorced from an executive branch it doesn't really control, and this benefits leftist malefactors. "The Left in the U.S. doesn't want an energetic president with the power to bend the executive branch to the will of the American people," he wrote.
The core idea was that conservatives must embrace a view of the Constitution that radically empowers the executive. So it's no surprise that Vought considers the Impoundment Control Act unconstitutional.
He said this explicitly during his 2025 confirmation hearing to run the OMB. When asked about impoundment, and whether the withholding of Ukraine funds during Trump's first term might be a "harbinger of what is to come these next four years,"Vought responded succinctly.
"The president ran on the notion that the Impoundment Control Act is unconstitutional," he said in response to a question from Sen. Patty Murray (D–Wash.). "I agree with that."
Prior to his confirmation hearing, Murray noted, Vought had responded to written questions about impoundment by saying he'd follow the guidance of the OMB's incoming counsel, Mark Paoletta.
Like Vought, Paoletta is a veteran of the White House budget office from Trump's first term. He also served as a fellow at the Center for Renewing America, where he wrote a number of articles arguing that the impoundment power was perfectly consistent with the Constitution and that the Impoundment Control Act was overreach.
Paoletta's argument rests partly on the Constitution's "executive vesting" clause, which vests the presidency with all executive power, which in his reading would include impoundment. He also offers a twist on the "take care" clause. Typically, the Constitution's insistence that the president is to "take Care that the Laws be faithfully executed" is understood to mean that the president must follow laws passed by Congress to the letter. But Paoletta sees it as a way to give the president some flexibility: He must have some discretion to spend carefully—which might mean declining to spend the full amount of an appropriation.
An even shorter version of Paoletta's view came in a 2024 post on X: "Impound, Baby, Impound!" Impoundment, he wrote, was "a great tool to cut wasteful spending."
Easy Peasy?
In the view of Vought and Paoletta, then—which is to say, in the view of the Trump administration's budgetary authorities—if a president wanted to not spend money, it would not be difficult at all. It would be easy. The president, or his agents, could simply not spend it.
That would probably trigger a court challenge, but that might be part of the point. In January, The Washington Post reported that a slide deck had been circulating among White House budget officials making the case for impoundment. The deck, according to the Post's description, "suggests Trump officials may seek to trigger a court case that could declare that law unconstitutional, ultimately enabling Trump to reduce or eliminate entire funding categories on his own."
The White House distanced itself from the presentation, denying that it was produced by any presidential appointee. But it's not hard to square it with Vought's clearly stated outlook. He told Congress that he would follow the law and his counsel's interpretation of that law, and both he and his counsel believe the Impoundment Control Act is unconstitutional. He has also advocated a radical constitutionalism that would empower the executive branch to hold its own against Congress, and he has hinted strongly that this might mean defying the "precedents and legal paradigms" of the current American order.
What would happen then? One possibility is that the courts would rule against impoundment, in keeping with decades of precedent and the mainstream of legal thought. Trump might comply with a court order. But he also might not. After all, if, per Vought, the executive branch must assert its power and prerogatives against encroachments from other branches, that might include the courts as well as Congress. If that happened, it would present a constitutional standoff, and arguably a constitutional crisis—and a violation of the rule of law.
Another possibility, less likely but not impossible, is that the courts might grant the president some sort of impoundment power, perhaps with limits. This would not result in an immediate constitutional crisis. But it would give yet more power to the executive branch and weaken the separation of powers.
For those who favor smaller government, this might not sound like a terrible outcome. After all, what could go wrong with giving the president the power to not spend money? It's a fair question. A more muscular executive impoundment power might make it possible for a president to cut wasteful or misguided spending, or trim the federal work force, reducing the power and cost of the bureaucracy. It's hard to imagine a way that it could result in a government that grows larger, at least in terms of dollars spent and debts owed.
But any coherent understanding of the American constitutional order, which reserves for Congress the power to both write laws and spend money, would have to recognize significant limits on such a power.
Jefferson's decision to not spend money on warships that were no longer necessary can plausibly be understood as a decision to be careful with taxpayer funds. But the objection to Nixon's impoundments was that he was declining to spend for policy reasons—that he was effectively ignoring the will of Congress, which had already overridden his veto, and substituting his own policy goals. What the courts found in both the Nixon dispute and the Clinton-era argument over the line-item veto was that to allow the president leeway to impound funds at his discretion was to allow the president not only to usurp the congressional power of the purse but to essentially write law.
So while granting the president impoundment power might not make the government larger, it would almost certainly make the presidency more powerful and more central to all sorts of questions related to both foreign policy and the economy.
Consider the extortion or bribery alleged in the Trump/Ukraine affair: The accusation was that Trump was withholding funds for personal, political gain. Giving the executive impoundment power would make the president a personal dispenser of hundreds of billions in federal funds, meaning those funds would be subject to his personal whims.
One need only look at how Trump has used or threatened to use his tariff authority to see the potential for abuse. In his first months in office, he hasn't just unilaterally imposed tariffs; he has raised the possibility of handing out exemptions and delays to pliant business leaders who cozy up to the office and ask for special treatment, leading to a politicized economy in which a single individual picks winners and losers.
The same would be true of a president who had the power to unilaterally withhold federal funds. Far from restoring the Constitution's balance of power, this would tilt the American government even more toward a president-centric system where the White House occupant is more like a king than an administrator tasked with executing the law.
But there is another option, one that maintains the constitutional order and allows for presidentially driven cuts and reductions to federal spending. Indeed, it's a mechanism contained within the Impoundment Control Act itself. It's called rescission, and it allows the president to submit a formal notice proposing spending reductions to Congress for approval. Congress then has 45 days to approve the rescission, during which time the spending is frozen.
Rescission attempts to solve the problem of what a president is supposed to do if he wants to not spend money. He is supposed to ask Congress, which under the Constitution holds the power of the purse. Rescission turns that into a formal, legal, fast-track process.
Trump knows this—or at least his budget officials do. During Trump's first term, Trump requested the largest rescission package ever granted under the Impoundment Control Act. In May 2018, the Trump White House sent Congress a $15.4 billion dollar rescission package. The true size of the savings was considerably smaller—no more than about $3 billion, according to Trump's own budget office, since much of the rescission concerned funds that had lingered unspent. Ultimately, the Senate did not approve the proposal.
But the administration went through the legally required process, ensuring that Congress had final say over matters of spending. The second Trump administration could do so again—and might. In April, the New York Post reported that the White House was teeing up a rescission package that included $1 billion in cuts to public broadcasting and an $8.3 billion cut for the U.S. Agency for International Development. Sen. Rand Paul (R–Ky.) pushed Trump and DOGE to think bigger. "I'd love to see a $500 billion rescission package," Paul told Reason's Eric Boehm in February.
For those who view the ever-expanding size of government as a problem, this may be an unsatisfying answer. It requires legislative action, and Congress is far less swift than an energetic executive. But the constitutional order wasn't designed to be swift or satisfying. On the contrary, it was designed to frustrate the desire for swift, seemingly satisfying policy change. The separation of powers was intended to force cooperation and compromise between the branches, even when it's exhausting.
The Constitution was also designed to frustrate unilateral authority and check executive power specifically. The Founders were all too aware of the problems that arise when policy depends on the whims of kings. Limited government relies as much on preserving the rule of law and the core constitutional order as it does on cutting programs and firing bureaucrats. Shortcutting the rule of law in order to achieve a temporary policy victory is never worth it.
What should a president who wants to not spend money do? He should follow the Constitution, and that means involving Congress and deferring to its budgetary authority. So yes, it's difficult for a president to decline to spend money. But under the Constitution, it should be.
This article originally appeared in print under the headline "What if the President Doesn't Want to Spend Money?."
