RE: Impoundment Control Act (Clyde Lies About Art II Power)

Published in the Towns County Herald Jan. 1, 2025 

Dear Editor,

I read with interest the statement by Trump sycophant Andrew Clyde that presidents have in Article II of the Constitution a power, known as “impoundment authority,” to refuse spending money appropriated by Congress.  (“Rep. Andrew Clyde, Sen. Mike Lee introduce Legislation to Repeal Impoundment Control Act,” Towns Co. Herald, Dec. 25, 2024.)  Of course, if that is true, why introduce legislation when the courts, which are never shy of overturning unconstitutional laws, are available?

Let’s ignore the ludicrous idea that the Impoundment Control Act prevents Trump from getting “America’s fiscal house back in order,” as if he is really going to do that.  This is the same Trump who demanded recently that Congress get rid of the debt ceiling.  Think about that.  If I ask the bank to get rid of my credit limit, do you really believe I would do that if I intended to suddenly become fiscally responsible?

But let’s get back to Clyde’s theory of presidential power.  The argument he makes turns the Constitution’s command that a president “take care that the laws are faithfully executed” on its head by claiming this encompasses the power to refuse to spend money authorized and appropriated by congress.  In Kendall v. United States ex rel. Stokes, the Supreme Court held “To contend that the obligation imposed on the President to see the laws faithfully executed, implies a power to forbid their execution, is a novel construction of the constitution, and entirely inadmissible.”  Assistant Attorney General William Rehnquist (later Chief Justice Rehnquist) wrote in 1969 “It is in our view extremely difficult to formulate a constitutional theory to justify a refusal by the President to comply with a congressional directive to spend.”

It is true that presidents in the past exercised what might be considered impoundment authority, but they did so within limited discretionary bounds and not as President Nixon did by abusing his authority and impounding billions in authorized spending simply because he disagreed with the programs Congress enacted.  His abuse showed the danger of free-handed impoundment and set the stage for the Impoundment Control Act, as it led to multiple cases brought against his illegal impoundments, one of which, Train v. the City of New York, is often cited as a clear Supreme Court ruling against presidential impoundment authority.

The truth is the Impoundment Control Act provides authority for a president to cut unnecessary or improper spending authorized by Congress through the processes of recission and deferral.  What the act does is provide for proper oversight by Congress and preserves the separation of powers, which in the words of Justice Brandeis saves “the people from autocracy.”

Bottom line: Clyde knows or should know his constitutional argument is faulty and that he would likely lose in court.  He should tell us the truth about how the Impoundment Control Act works and not use lies to justify his support for the misguided legislation he is now trying to sell.  Instead, we get grandstanding and half-baked arguments from him for a bill designed mainly to let him dodge responsibility for making tough decisions.

What Clyde should do is tell us honestly and frankly where he wants cuts to fall or taxes to be raised and then work (as he is being paid to do) to bring those policies to fruition if he believes they are best for the country.  Otherwise, why is he even there?

Sincerely,

David W. Plunkett