Before President Trump asserted that he had the constitutional power to refuse to release money that Congress had directed him to spend, another president made that same bold claim. It did not end well.
“The constitutional right for the president of the United States to impound funds,” President Richard M. Nixon said at a 1973 news conference, was “absolutely clear.”
Mr. Nixon said he had the unilateral right to block — or impound — billions of dollars that Congress had appropriated for medical research, higher education, public housing, the environment and many other projects.
In that era, Congress, jealous of its place in the constitutional structure, pushed back, enacting the Impoundment Control Act of 1974 to protect its power of the purse. Weakened by the Watergate scandal that would cause his resignation that year, Mr. Nixon signed the bill.
In the second Trump administration, though, impoundments are back, in one of many signs that Mr. Trump is trying to shift power over all facets of American life from Congress to the presidency.
He is following through on a campaign promise to wage an assault on the Nixon-era law — one that can likely only be settled by the Supreme Court.
“This disaster of a law is clearly unconstitutional, a blatant violation of the separation of powers,” Mr. Trump said in 2023.
“Bringing back impoundment,” he added, “will give us a crucial tool with which to obliterate the deep state, drain the swamp and starve the warmongers.”
The Impoundment Control Act reinforced what its sponsors said the Constitution required: that the president must faithfully execute congressional commands, including those concerning spending. Among other things, the law required presidents to ask Congress for permission before refusing to spend, or “rescinding,” appropriated funds. The law gave Congress the choice of whether to grant those requests through new legislation.
Later presidents followed the procedure, and Congress granted many, though not all, rescission requests.
But since returning to office, Mr. Trump has routinely refused to spend appropriated money, without asking permission. Mr. Trump has paused, canceled and clawed back funds for education, health care, foreign aid and countless other initiatives.
The Constitution gives Congress the primary role in government spending, saying that “no money shall be drawn from the Treasury, but in consequence of appropriations made by law.” It requires the president to “take care that the laws be faithfully executed.”
Impoundments have a long and contested history, and many presidents have refused to spend appropriated money. Some refusals are uncontroversial, such as when a statute allows the president to decide whether and how to disburse funds, or when a legislative goal can be achieved without spending all the money Congress had allocated.
Thomas Jefferson, for instance, told Congress in 1803 that “the sum of $50,000 appropriated by Congress for providing gun boats remains unexpended,” explaining that “the favorable and peaceable turn of affairs on the Mississippi rendered an immediate execution of that law unnecessary.”
But refusing to release money Congress has clearly intended to be spent is a different matter.
Mark Paoletta, who served as general counsel of the Office of Management and Budget in the first Trump administration and has returned to that role in the second one, set out an extended defense of the president’s impoundment powers in a pair of papers published last year by the Center for Renewing America, a think tank founded by Russell T. Vought, Mr. Trump’s budget chief.
“President Nixon’s aggressive use of the executive’s impoundment authority was well within constitutional understanding and practice going back to the founding,” he wrote in one.
In another, he said that congressional appropriations set a ceiling but not a floor, forbidding presidents from spending more than was allocated but letting them spend less. Mr. Paoletta analogized spending to prosecutorial discretion. In both, he said, the executive branch sets priorities.
That argument was at odds with the views of some prominent conservatives. In early writings, before they joined the Supreme Court, the current chief justice and his predecessor both sided with Congress.
In a 1969 analysis, William H. Rehnquist, then the head of the Office of Legal Counsel, the elite unit of the Justice Department that advises the executive branch on the law, did not find the issue complicated.
“With respect to the suggestion that the president has a constitutional power to decline to spend appropriated funds,” he wrote, “we must conclude that existence of such a broad power is supported by neither reason nor precedent.”
Two years later, Mr. Nixon nominated Mr. Rehnquist to the Supreme Court; President Ronald Reagan elevated him to chief justice in 1986.
John G. Roberts Jr., who had served as a law clerk to Justice Rehnquist and succeeded him as chief justice in 2005, also weighed in on impoundment in 1985 as a young lawyer in the Reagan White House. He told his boss that the president had no such power “in normal situations,” and that White House lawyers should discourage officials “from considering impoundment as a viable budget planning option.”
“Our institutional vigilance with respect to the constitutional prerogatives of the presidency requires appropriate deference to the constitutional prerogatives of the other branches,” he wrote, “and no area seems more clearly the province of Congress than the power of the purse.”
Justice Antonin Scalia, who died in 2016 and remains a revered figure on the right, likewise had harsh words for Mr. Nixon’s view of impoundment.
“President Nixon, the Mahatma Gandhi of all impounders, asserted at a news conference in 1973 that his ‘constitutional right’ to impound appropriated funds was ‘absolutely clear,’” the justice wrote in a 1998 partial dissent, citing the Indian lawyer and pacifist as an example of a particularly determined proponent of a position.
“Our decision two years later in Train v. City of New York proved him wrong,” Justice Scalia added, referring to a 1985 decision rejecting one of Mr. Nixon’s impoundments on statutory grounds.
All of this suggests that even the current Supreme Court, one that has seldom stood in Mr. Trump’s way in recent months, will find the constitutional question to be difficult.
No case has yet emerged that would force the justices to fully confront that fundamental question. In one dispute that landed at the court that touched on the issue, the administration, perhaps surprisingly, avoided a constitutional showdown over the 1974 law, and instead sought to use it as a legal shield.
In asking the Supreme Court last month to let the Trump administration cancel more than $4 billion in foreign aid, D. John Sauer, the solicitor general, said he was not pressing a constitutional challenge to the law. Rather, he said in an emergency application, the law placed limits on who can sue over it and for what.
In a brief unsigned opinion over the dissents of the three liberal justices, the court sided with the administration, saying its “preliminary view” was that it had the better of the argument on the technical points it had raised.
Zachary S. Price, a professor at the University of California College of Law, San Francisco, said the administration had made a savvy litigation decision in focusing on technical issues.
“I think they would reject a direct constitutional claim that there was a presidential impoundment authority,” he said, referring to the justices. “The law is pretty clear.”
The administration was instead pursuing an incremental legal strategy, he said.
“They’re looking for ways to get narrow wins that build up, in practice, broader executive authority,” he said. “They seem to be doing pretty well with that approach.”
Aided by a pliant Congress, Mr. Trump has thus far made good on his campaign pledge to use impoundments aggressively.
The breadth of Mr. Trump’s claimed power is particularly salient given the government shutdown, said Alan B. Morrison, a law professor at George Washington University who has filed briefs opposing the Trump administration’s spending freezes.
In ending earlier shutdowns, Professor Morrison said, the two parties made a deal and enacted legislation reflecting it. But now, he said, expansive use of impoundments undercuts Democrats’ motivation to compromise.
“This time,” he added, “if you have a deal, the Democrats know that Trump is going to impound all of the things they want and spend all the things they don’t want. And so how can they possibly strike a deal?”
Adam Liptak covers the Supreme Court and writes Sidebar, a column on legal developments. A graduate of Yale Law School, he practiced law for 14 years before joining The Times in 2002.
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