Only Congress can make laws, and it has the even greater power of the purse, to pay for them. Everything else is basically reserved to the executive. Logically, if a president cannot spend money, he cannot withhold it, either – but it has never been as simple as logic might suggest.
In the summer of 1974, President Richard Nixon was not feeling well. The Watergate scandal was closing in. In April, the House Judiciary Committee had voted to subpoena tapes of his conversations in the White House. The Nixon administration refused to provide them, citing executive privilege. That led to the committee’s impeachment hearings, which began in May and were televised. One of the counts it considered was obstruction.
In the midst of that, proving it could walk and chew gum, Congress passed the Congressional Budget Act of 1974, which might be unremarkable here but for Title X, the Impoundment Control Act. It said a president could not withhold appropriated funds for more than 45 days without the approval of Congress. It was a poison pill for Nixon.
Louis Fisher, now a visiting scholar at the William and Mary Law School, worked with Congress to get the Impoundment Control Act passed. Presidents had failed to spend appropriated funds long before Nixon – Fisher cites Jefferson refusing to spend money Congress authorized for gunboats, in 1803 – and it was not a problem because Jefferson ultimately worked out a compromise with Congress. President Eisenhower withheld funds from a missile program and President Kennedy withheld funds for the B-70 bomber, but they, too, brokered truces with Congress.
“No president pushed the impoundment issue until Nixon came along,” Fisher said, speaking on the public radio program Here & Now recently.
Part of the problem was that the stakes in Nixon’s impoundments were smaller and the message louder.
Nixon was of the opinion that when a Republican president submitted a budget proposal to a Congress controlled by Democrats, it should be enacted with as few changes as possible. If the president proposed to cut spending, it was reckless for Congress to restore it.
Nixon had impounded close to $70 billion in funds in today’s money because, he maintained, it was deficit spending that would further fuel inflation. He may not have been wrong about the economics, which we are still debating, but when it comes to the separation of powers, he might as well have been waving a red cape at a slow-to-rouse bull.
The bull finally brought the matador to heel when Nixon signed the act, in the second week of July – and he sent Fisher a signing pen, a nice touch. Three weeks later, he resigned.
It is not clear whether President Trump violated the Impoundment Control Act when his administration withheld about $390 million in military aid to Ukraine this year, because we still do not know the mechanisms by which it happened – even if we think his motive was itself a high crime, which is what the House concluded when it impeached him. But if he did violate the act, hard as it is to grapple with, it is also possible this president did not know the limits of executive power. That would explain why other presidents have tended to complain more about the office’s constraints.
We do know that some members of Congress are not alone in thinking Trump’s presidency is already too imperial, and that if Democrats controlled both houses of Congress he would stand a greater chance of being removed from office, the first president to face such a fate. And at its heart would be his contempt for the other party and the separation of powers.
We also know that, in seeking to bully Ukraine for what look like petty, personal and nonsensical reasons, he has managed to make Nixon look high-minded.
