Dear Reader,

In a recent op-ed in the Wall Street Journal, Elon Musk and Vivek Ramaswamy set out their plans for the Department of Government Efficiency, or DOGE. DOGE will be a newly created body in the Trump Administration that is supposed to, in the words of Musk and Ramaswamy, “cut the federal government down to size.” The first order of business should be for one of them to fire the other because it would seem the model of inefficiency to have two people at the helm. One hopes another agenda item is to scrap Musk’s plans to have DOGE merchandising as part of the portfolio.

While neither of these are actual agenda items for DOGE, one that is raises a serious constitutional question. In the op-ed, Musk and Ramaswamy argue that they will cut government spending through executive action. One way to do that is by refusing to spend funds Congress has authorized, or what is known as impoundment.

Musk and Ramaswamy note that “skeptics” might “question how much federal spending DOGE can tame through executive action alone” because of the 1974 Impoundment Control Act, which requires the president to spend funds that Congress has mandated. The 1974 Act requires presidents to get new legislation passed if they want to reduce funding for a program and allows them to defer spending only within a single fiscal year under limited circumstances. Musk and Ramaswamy note that “Mr. Trump has previously suggested the statute is unconstitutional” and then they added their view that “the current Supreme Court would likely side with him on the question.”

The reference to challenging the constitutionality of the Impoundment Control Act in the Musk and Ramaswamy op-ed is no random aside. Trump has repeatedly argued that the Act is unconstitutional. He claimed in a 2023 campaign video that “for 200 years under our system of government, it was undisputed that the President had the constitutional power to stop unnecessary spending through what is known as impoundment,” and he repeated that message on the campaign trail. Russ Vought, his nominee to head the Office of Management and Budget and the co-author of Project 2025, has also been pounding the impoundment drum. He told Fox Business in an interview that he believes taking away impoundment authority from the president in the 1974 Act was “the original sin” if the goal is to control spending, and he said “we’re going to need to bring that back.” They have made it clear they want to challenge the Impoundment Act of 1974 in court, and as Musk and Ramaswamy indicated, they think they will win.

These days, it is risky business betting that the Supreme Court will rule against Trump. This is, after all, the Court that recently announced a new rule of sweeping presidential immunity that will shield Trump from prosecution for any number of misdeeds in office.

But I think there are strong reasons to doubt Trump will win this one. While Trump and his allies claim that there was a 200-year history of presidents using impoundment, the history to which they point involves statutes in which Congress allowed presidential impoundment because those statutes authorized but did not require spending. As Zachary Price puts it, “presidential impoundment comports with faithful execution so long as Congress intended the expenditures in question to be permissive rather than mandatory.”

When President Nixon asserted that he had the constitutional power to impound spending on any program established by Congress that he did not like, Congress responded with the 1974 Act, which effectively makes most spending mandatory. After Congress passed the Act, presidents fell into line and complied with Congress’s directives to spend money.

As Eloise Pasachoff has noted, “no court has ever ruled that the President has any inherent constitutional authority to impound, while courts during and immediately following the Nixon era routinely rejected statutory authority to do so.” While it might be tempting to think that is because those courts were more liberal than the current one, it is noteworthy that a staunch conservative like William Rehnquist agreed with that view in 1969 when he was the Assistant Attorney General in the Office of Legal Counsel in the Nixon Administration. He wrote 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.” He expressed the view that it is “extremely difficult to formulate a constitutional theory to justify refusal by the President to comply with a congressional directive to spend.”

Justice Scalia also indicated his agreement with this view in a 1998 decision. He noted that “[c]ertain Presidents have claimed Executive authority to withhold appropriated funds,” and referred to President Nixon as “the Mahatma Gandhi of all impounders.” He noted Nixed claimed at a 1973 press conference that he had a constitutional right to impound appropriated funds and then Justice Scalia pointed out that the Supreme Court’s decision “two years later in Train v. City of New York proved him wrong.”

The views of Rehnquist and Scalia are likely to carry weight with several justices on the current Court. Chief Justice Roberts clerked for Rehnquist, Justice Barrett clerked for Scalia, and other justices have indicated their respect for both of them.

The President must faithfully execute the laws passed by Congress, including budget directives and the Impoundment Act of 1974, unless those laws are found to be unconstitutional. But there is no textual or historical basis for finding an inherent presidential power to impound funds. The Court would have to invent it out of whole cloth.

To be sure, it would not be the first time the Court invented presidential powers. The ink is not even dry on its sweeping decision giving presidents immunity from criminal prosecution.

But there are good reasons to think the Court will not see the claimed need for impoundment the same way. The Constitution gives Congress the power of the purse and allowing presidents to ignore what Congress wants to fund simply because presidents disagree with the policy decisions would make a mockery of the separation of powers. It would emasculate Congress to the point of making it nothing more than an advisory body for the president.

If the Court accepted the Trump view, it would show just how far to the right it has gone from even the conservative views of Rehnquist and Scalia. It would be hard to see what is left to distinguish the president from a king–other than a crown.

Stay Informed,

Rachel