“Pocket Rescissions” are a Legal Fantasy

David Super

      Office of Management and Budget Director Russell Vought has drawn a great deal of attention lately by hinting that he might lock in some of the Administration’s unilateral funding cuts with “pocket rescissions”.  This delights conservatives because it tells them what they want to hear; it sounds serious to some who are new to these issues.  In fact, the concept is entirely vacuous, crumbling under even the most superficial scrutiny.  

      In essence, Mr. Vought claims that the Impoundment Control Act of 1974 allows the President to rescind appropriated funds without Congress’s approval merely by sending Congress a “special message” within roughly the last 45 days of a fiscal year.  Before delving into the technicalities of Mr. Vought’s theory, we should appreciate the very steep hill any legal argument must climb if it purports to allow unilateral presidential rescissions (which is to say impoundments).

      Implied repeals of statutes are strongly disfavored.  As the Supreme Court has said, “[i]n the absence of some affirmative showing of an intention to repeal, the only permissible justification for a repeal by implication is when the earlier and later statutes are irreconcilable.”  Mr. Vought therefore would need a very clear statutory command to override these and countless other similar mandates to spend appropriated funds. 

      In addition, Mr. Vought’s theory faces considerable constitutional difficulties.  He is essentially arguing that the Impoundment Control Act delegated to the President the sweeping power to override statutes without any principle constraining his discretion.  The Supreme Court has held that Congress may not delegate law-making powers to the executive without intelligible standards.  Under Mr. Vought’s theory, no such standards exist here.

      Specifically on the question of withholding appropriated funds, Congress tried granting the President a much more limited version of that power in the Line-Item Veto Act of 1996.  The Supreme Court held that unconstitutional as it essentially allowed the President to repeal laws:  “cancellation of one section of a statute may be the functional equivalent of a partial repeal even if a portion of the section is not canceled”.  The only member of that Court who is still serving, Justice Clarence Thomas, voted with the majority.  The powers Mr. Vought claims for the President are even more sweeping.  Mr. Vought also needs to explain why Congress would enact the Line-Item Veto Act if it had already granted the President the power to eliminate funding at will with “pocket rescissions”. 

      Mr. Vought’s theory that the Impoundment Control Act of 1974 granted presidents this vast, unconstrained power to impound appropriated funds is spectacularly ahistorical.  Congress enacted the Impoundment Control Act out of bipartisan anger over President Nixon’s arbitrary impoundments of appropriated funds for domestic programs.  It boggles the mind that all those senators and representatives would have passed a law permitting precisely what they were condemning.

      Mr. Vought essentially claims that he has found a technicality that grants this dramatic power.  The Act directs the President to submit a “special message” to Congress proposing a rescission “[w]henever the President determines that all or part of any budget authority…should be rescinded for fiscal policy or other reasons”.  If the President does so, Congress has 45 days to consider the President’s recommendation.  Another part of the Act requires that any funds the President has proposed for rescission “shall be made available for obligation” if Congress fails to act.  Mr. Vought argues that if the President proposes a rescission within the final 45 days of a fiscal year, the funds will expire under the terms of their appropriations acts before the 45-day consideration period ends and thus need never be obligated or spent. 

      This theory has several problems in addition to those noted above.  First, nothing in the Impoundment Control Act affirmatively authorizes the President to violate appropriations or authorization statutes requiring funds to be spent.  To the contrary, the Act states “Nothing contained in this Act, or in any amendments made by this Act, shall be construed as…superseding any provision of law which requires the obligation of budget authority or the making of outlays thereunder.”  Yet that is precisely what Mr. Vought says the Act does for him. 

      Second, and related, nothing in the Act affirmatively authorizes the President to withhold funds for 45 days:  it only mandates their obligation after 45 days.  To be sure, withholding funds for 45 days is common practice under the Act when doing so creates no conflict with the authorizing and appropriations acts providing the money.  That, however, is far from the clear directive Mr. Vought would need to mandate a 45-day freeze in direct contradiction to express commands to spend money in appropriations and authorization statutes, especially as the Impoundment Control Act itself disavows any intent to override those laws.

      Third, Mr. Vought fails to account for why the funds in question were not spent prior to the last 45 days of the fiscal year.  As noted above, the Act requires that the President submit a request that funds be rescinded “[w]henever the President determines” that money should not be spent.  “When”, and its derivative “whenever”, specify a time.  Clearly the President determined that funds should not be spent when he stopped executive agencies from spending them.  His special message was due then, and any implicit 45-day period when the funds could be withheld began then as well.  Mr. Vought cannot brazenly violate the Impoundment Control Act and then claim its protection. 

      Fourth, Mr. Vought’s theory runs directly into the Major Questions Doctrine, an invention of the current Supreme Court that in other settings this Administration has enthusiastically praised.  The Major Questions Doctrine holds that sweeping powers should not be read into vague or obscure statutes absent a compelling indication that Congress intended to grant those powers:  the Court “typically greet[s] assertions of extravagant statutory power over the national economy with skepticism.”  Mr. Vought’s “discovery” of these dramatic powers in a half-century-old statute is precisely the kind of extravagant legal theory that the Major Questions Doctrine rejects.

      Finally, Mr. Vought fails to explain why the funding expiration language in the appropriations acts – acts that the rest of his theory subordinates to his reading of the Impoundment Control Act – should nonetheless override the Impoundment Control Act’s mandate that funds must be obligated if Congress fails to act within 45 days.  In other settings, such as when litigation is pending about how or whether funds should be spent, courts have held that expiration dates on appropriated sums should be extended to fulfill the intent of Congress.  Mr. Vought’s theory depends on the Impoundment Control Act being first a lion, when a dubious and contradicted inference from its language casts aside appropriations acts, and then a lemming, when its clear mandate to obligate funds falls before deadlines in those same acts.  This is untenable.

      To date, Mr. Vought’s public statements have offered little explanation for how he would surmount these formidable challenges.  He has seemed to suggest that deferrals of spending might feed into his imagined “pocket rescissions”.  But the Impoundment Control Act specifically forbids deferrals for policy reasons:  the President may only defer funds to respond to increased needs anticipated late in the fiscal year, because new efficiencies have changed the optimal spend-out rate for a program, or as specifically authorized by other laws.  None of these apply to efforts to set-up a policy-motivated rescission request, and “[n]o officer or employee of the United States may defer any budget authority for any other purpose.”  In addition to prohibiting policy-driven deferrals, the Impoundment Control Act also defines deferrals very broadly to include any “type of Executive action or inaction which effectively precludes the obligation or expenditure of budget authority”.  We have been seeing a great deal of just this type of executive action and inaction, which would be unlawful even if the President had timely submitted a “special message” and is all the more so without one. 

      Mr. Vought has suggested that presidents previously have submitted “special messages” near the ends of fiscal years.  This does not appear to have occurred during the past several decades nor has Mr. Vought presented any evidence such messages were part of the kind of effort he proposes to override the will of Congress.  In some situations, presidents may realize late in the year that they do not need to spend a full appropriation to fully implement the statutory purpose.  If Congress appropriates $500 million to purchase additional land for a national park and the President manages to buy the land for $400 million, no policy issues arise.  That obviously is not what Mr. Vought is doing here. 

      At its core, Mr. Vought’s “pocket rescissions” theory is simply another manifestation of his longstanding argument that Congress’s power of the purse is limited to setting ceilings on what may be spent, not establishing floors.  Of course, the President may block spending by vetoing legislation when Congress sends it to the White House.  The Supreme Court has been very clear, however, that once a bill becomes law, it binds the President just as it binds everyone else.  The Supreme Court ruled unanimously against President Nixon’s impoundments that rested on the very same premise and even rejected Congress’s ability to pre-authorize the President to withhold funding in the Line-Item Veto case. 

      The blizzard of abrupt funding cut-offs imposed by Elon Musk’s Department of Government Efficiency (DOGE) and Mr. Vought’s OMB have done immense, irreparable harm to particular individuals affected, to the federal government’s credibility as a partner to the private sector, and to our national well-being.  The great majority of them also are illegal for violating appropriations and authorizations statutes.  Mr. Vought surely must know this, which is why he is trying to shift the conversation back to the Impoundment Control Act – which he has repeatedly condemned as unconstitutional – and this particularly fanciful reading of that Act.

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