GAO Decisions: What’s with this Impoundment thing?

Impoundment, Antideficiency Act, Purpose StatueGAO Decisions: What’s with this Impoundment thing?Ask us. We don’t charge you by the hour for our insights.

Budget & Tax, National Security,  | Quick Take
Jan 16, 2020  | 3 min read | Print Article

The Government Accountability Office (GAO) issued a decision that agrees with what Taxpayers for Common Sense has been saying for months: withholding Congressionally-approved military aid to Ukraine is a violation of the Impoundment Control Act of 1974.

You don’t need to go much further than the second paragraph of the GAO document. “Faithful execution of the law does not permit the President to substitute his own policy priorities for those that Congress has enacted into law.”

It’s always good to be on the same side as GAO. At TCS we frequently write about appropriations law issues like the Antideficiency Act, the Impoundment Act, and the Purpose Statute. We’re nerdy like that. But who you gonna call when you’re trying to understand principles of federal appropriations law? TCS or a government contracts lawyer, that’s who. And we don’t charge you by the hour for our insights.

We’ve been writing and talking about this issue since it broke into the news last fall. As we wrote in October as part of our deep dive into issues regarding appropriations law (anti-deficiency, impoundment and purpose):

“The flipside to an executive agency spending money it doesn’t have, is an executive branch that refuses to spend money as it has been directed. This leads to another major news story of the recent weeks:  the withholding of aid funds for Ukraine that was appropriated by Congress. This is the inverse of the government trying to spend money without having a proper appropriation. In this case the executive branch sought to withhold money the Congress had appropriated for a specific purpose. And that, students of federal appropriations law, is an illegal impoundment.”

We have noted, repeatedly, since this issue became a highly debated topic, that the President may either rescind or defer Congressionally appropriated funds. Deferring appropriations has a specific time limitation and, in any case, the deferment may not extend beyond the end of a fiscal year. A rescission is a permanent cancellation of funds. But both deferrals and rescissions require the President to transmit a special message to the Congress stating his action.

This fact isn’t something we made up: the Constitution gives Congress the power to make appropriations decisions. Subsequent laws and rulemaking have codified how the President and the Executive Branch may ask for relief from the specifics of an Appropriations Act. The Constitution matters. The rule of law matters.

This isn’t the wild, wild west.

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