OPINION:
President Trump’s success in cutting back and rationalizing federal spending largely depends on whether he can get away with spending less on programs than Congress appropriates. Standing in his way is legislation a hostile Congress used to punish and hamstring President Nixon. The law prohibits a president from “impounding,” or spending less than Congress appropriates, without congressional approval.
The ban on unilateral “impoundment” was passed as part of the Congressional Budget and Impoundment Control Act of 1974, just months before Nixon was forced to resign. Congressional Democrats were upset that Nixon was doing then what Mr. Trump is now: refusing to spend appropriated funds on wasteful projects. Then, as now, this makes sense to voters and Republicans but angers congressional leaders fighting for higher spending levels regardless of the consequences.
Until the passage of the 1974 prohibition, presidents from Thomas Jefferson to Franklin D. Roosevelt, Harry S. Truman and Lyndon B. Johnson had “impounded,” or refused to spend money to cut spending or because of policy disagreements with Congress. They assumed, along with everybody else, that a congressional appropriation enabled the president to spend funds up to the amount appropriated and set a ceiling on what might be spent but did not require the executive branch to spend every dime Congress appropriated.
That changed in 1974. The Nixon administration argued that the requirement that a president spend everything appropriated by Congress was unconstitutional, but Nixon did not challenge it in court. Nixon was fighting for his political survival. As important as he regarded a president’s right to rein in spending, he had neither the energy nor the resources to undertake such a challenge.
It is on the 1974 act that Mr. Trump’s critics call his actions illegal. Still, he refuses to be bound by a law that he and his advisers firmly believe was unconstitutional when it was enacted and would have been declared so if any president since had been willing to take it to the Supreme Court, which is precisely what he must do to validate his administration’s ability to cut spending and the ever-growing size of the government.
Because the ban has been law for so long, many legal analysts now doubt the Supreme Court will overthrow it. Those supporting the ban argue that Congress could have banned presidents before Nixon from exercising the right to spend less virtually unchallenged, that Nixon’s “impounding” funds were abused and that they were used mainly for policy reasons.
Mr. Trump doesn’t accept that reasoning, and today’s Supreme Court may give more weight to nearly 200 years of precedent than the 1970s court. Those hoping to at least slow the slide down the slippery slope to national bankruptcy hope Mr. Trump is right. Every president before Nixon assumed with the experts of an earlier day that an appropriation set a spending ceiling rather than a floor.
Mr. Trump’s critics argue that his refusal to spend appropriated money is based on disagreements over policy. Still, previous presidents also used their power to refuse to spend on programs with which they disagreed. On policy and constitutional grounds, President Truman refused to spend funds appropriated to build two aircraft carriers and a $60 million loan to Spain on policy and constitutional grounds. “Certainly, none of us hold that we give a mandate to expend the funds appropriated. We expect the funds to be used only where needed and not in excess of the amount appropriated,” Truman explained, as quoted by Mark Paoletta and Daniel Shapiro in their “The History of Impoundments Before the Impoundment Control Act of 1974” published by The Center for Renewing America.
In preparing for and fighting World War II, Roosevelt refused to spend, or “impounded,” something like $500 million, or $19.75 billion in today’s money, from 1940 through 1944, which would have made him, rather than Mr. Trump, the impoundment king.
Had Nixon survived in office, he would no doubt have challenged the congressional power grab in 1974, but he was otherwise occupied and resigned months after it was enacted. His successors chose to live with it or find minor workarounds. In Mr. Trump, we have a president willing to fight for the prerogatives that our chief executives once had because he knows our never-ending deficits will ruin us if he doesn’t.
• David Keene is editor-at-large at The Washington Times.
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