A MARTÍNEZ, HOST:
President Trump has been trying to not spend money that Congress has already directed the government to spend. Whether he can do that comes down to something called impoundment. Sarah Gonzalez, with our Planet Money podcast, has more.
SARAH GONZALEZ, BYLINE: Let’s start with what is likely the most high-profile instance of a president impounding – or withholding – money, in 1803, with Thomas Jefferson. Congress was worried that the U.S. might have to go to war with France on the Mississippi, so it appropriated up to $50,000 to build 15 gunboats. Congress met once a year back then. And after they met, the U.S. bought Louisiana from France and a bunch of other land – the Louisiana Purchase. So France was no longer going to be on the Mississippi. And Jefferson thought that the threat had disappeared, says Zachary Price, a law professor at UC Law San Francisco, who has looked at historical impoundment practices.
ZACHARY PRICE: So he didn’t spend the money, didn’t build the ships – or at least didn’t build all of them – and then just told Congress in his annual message when they came back.
GONZALEZ: Trump’s team has specifically pointed to this gunboat example to say, see, the president does have the power to not spend. But here’s the thing about this gunboat example.
PRICE: The law just said you can spend up to X amount on this purpose.
GONZALEZ: Oh.
PRICE: But the law didn’t say you must spend at least this much. It said no more than.
GONZALEZ: Yeah. Baked into the law, it was optional. And historically, Zachary says presidents were not making the argument that they have the constitutional power to override Congress and impound funds. He says presidents would more just convince Congress to let them not spend. Like, there was spending for rivers and harbors that Ulysses S. Grant thought was wasteful. There was money for a weapons program that John F. Kennedy didn’t want to spend after World War II. In both cases, Congress gave in to the presidents.
There weren’t really any rules around impoundment until Richard Nixon because Nixon was using impoundments as, like, a broader policy tool, withholding money for policies he disagreed with. At one point, Nixon impounded more than a third of all discretionary spending, and a bunch of people and states who were expecting the money that Nixon withheld sued. In one case, the Supreme Court ruled that the total amount that Congress had appropriated for sewage treatment plants had to be spent. Not just any amount – the total amount the justices said, because that was the language of the law.
Now, when the Trump administration started attempting to freeze federal funds that go to states for everything from new school buses to medical research, to some, it was not a Thomas Jefferson-style saving money on some Mississippi gunboats kind of impoundment. It was more like what Nixon tried to do. But what the Trump team is arguing – that Nixon’s team did not argue in court – is that the president should have this special power to not spend. They’re saying, yes, there’s a ceiling on spending, but they don’t think there’s a floor. This is, like, what the argument is, right? Like, the ceiling is there. Don’t spend more. But is the floor there?
DAVID SUPER: Yeah, the floor is there in the laws that say you must spend this money.
GONZALEZ: David Super is a law and economics professor at Georgetown University.
SUPER: And in the Constitution, it says you must take care that the laws be faithfully executed. You’re not taking care that the laws to be faithfully executed if the law says spend a million dollars and you refuse to do so.
GONZALEZ: Multiple judges have ruled that the Constitution does give Congress the power to set even a spending floor. Supreme Court Justice Brett Kavanaugh – who Trump appointed – wrote as an appellate judge that even the president does not have unilateral authority to refuse to spend. Trump’s legal team has countered that the Supreme Court hasn’t provided the final word on whether a president has inherent constitutional impoundment power. They say even that one Nixon ruling was more specific to the particulars of Nixon’s case.
Sarah Gonzalez, NPR News. Transcript provided by NPR, Copyright NPR.
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