Another needless government shutdown may soon be upon us. Politically, these events have proved fleeting. But this funding deadline carries a long-term threat to the separation of powers, and Republicans would be wise to take it seriously.
The Trump administration is making a frontal challenge to Congress’s power of the purse, and Congress seems either unwilling or unable to do anything about it. This reflects a broader, troubling trend. Our legislative branch has become subordinate to the executive through years of passivity. Congress must stand up to this exigent threat or risk losing more of its power.
The details of this threat — called a “pocket rescission” — may sound technical, but the ramifications are significant. This is about who controls government spending and whether a president can single-handedly cancel money appropriated by law.
The issue at hand is the White House’s effort to reverse nearly $5 billion included in this year’s foreign aid budget. Late last month, President Trump submitted what’s called a rescissions request under the Impoundment Control Act. Passed in response to the Nixon presidency, this 1974 law exists to ensure presidents do not ignore the will of Congress by failing to spend appropriated funds.
The law also formalized a procedure for presidents to propose canceling funds. Under ordinary circumstances, after a president submits a request, Congress has 45 days to approve it. If Congress does nothing, the rescission request expires and the funds get spent. This is because spending laws aren’t just suggestions: Congress must agree to cancel the spending.
But in this case, the White House submitted its rescissions request near the close of the fiscal year, essentially running out the clock. Agencies can hold onto those funds while a request is being considered, but are barred from spending money after the fiscal year ends on Sept. 30.
So by the time the 45-day window is up, the White House can claim this foreign aid money is no longer available to spend — even if Congress did not approve the White House’s request.
It’s a clever gambit, designed to help presidents game the system and undermine the appropriations process. But there are ways to stop it.
In the past, the Government Accountability Office, Congress’s watchdog agency, has called this maneuver illegal. The courts are now reviewing its legitimacy, but Congress should not place its power in the hands of judges.
The administration is testing Congress’s mettle. It made a shrewd political decision to request a relatively small package of cuts to foreign aid, a section of our budget often cited by voters as expendable. The administration appears to be making a bet — perhaps a good one — that Democratic leaders would not be willing to fight a government shutdown over such a small budget line, and that Republicans will continue to value party loyalty and their own desire to cut foreign aid over protecting their own constitutional powers.
That would be grievously shortsighted. Even if Republicans in Congress believe in cutting this spending, they must consider what they would be giving up. Passive acceptance of pocket rescissions today could lead to a future progressive president refusing to spend appropriated dollars on, say, immigration enforcement or military procurement.
Some proponents of a pocket rescission approach might claim that it is necessary after so many years of Congress failing to cut spending fat. But this is not how you balance a budget. Rescissions apply only to discretionary spending, not our entitlement programs, and agencies cannot withhold all their funding until the end of the fiscal year. What Congress would be doing by accepting this pocket rescission is giving away its authority.
More than these budget savings, what the administration appears to be seeking is to establish a precedent. It presumably wants to make this process seem legitimate, so that Mr. Trump can come back in future years to take out larger sections of the budget without approval from Congress.
The power of the purse is perhaps Congress’s most important tool to hold the executive in check. For decades, Congress has used the threat — or act — of withholding funds to compel administrations to comply with congressional policy priorities or oversight requests.
Unfortunately, Republicans have already begun ceding congressional power on other fronts — a trend that seems likely to continue. Since the start of the president’s second term, the administration has tried to eat away at Congress’s authorizing and appropriating roles. The administration even tried to shield from public view how it was spending appropriated dollars, a violation of federal transparency laws. This year, we have seen with tariffs what can happen when a seemingly narrow authority is granted to a president.
This is the moment for members of Congress to stand up and defend their institution. Whether before or after a government shutdown, Congress will ultimately send the president a bill that funds the government. It can and should include language either approving or rejecting this rescission of foreign aid and putting into law that a rescissions request cannot be made at the end of a fiscal year.
While very rare, this is not the first time an administration has made a rescission request late in the fiscal year. But during the Ford and Carter administrations, Congress acted on those requests, and at least one Ford administration official made clear it was not the intent to run out the clock.
By contrast, this looks like a power grab. And as Congress knows well, once power is ceded to the executive, it is almost impossible to wrest it back.
Brendan Buck, a communications strategist, was a counselor to Paul Ryan and a press secretary for John Boehner when they were speakers of the House.
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