The Government Accountability Office released an eight-page report on the illegality of President Trump’s decision to withhold security assistance to Ukraine that was appropriated by Congress. The reasoning for their conclusion was because of a controversial 1974 bill known as the Congressional Budget and Impoundment Control Act, which overhauled the congressional budget process and placed limitations on presidential power, the latter of which was the focus of the report.
Before making a final verdict on the legitimacy of the accusations within the report, it is of utmost importance to understand how this bill became law.
After the passage of President Roosevelt’s New Deal program, Congress lost much of its legislative power to the Executive Branch. The enactment of his policy package meant that much of the increase in power within the administrative state, as created during the Progressive Era, led to the executive agencies created around this time to siphon legislative power from Congress and move it under White House control.
Although members of Congress had little uproar about this power change while the bureaucracies were pro-New Deal, that changed in the 1970s with the rise of a doctrine known as regulatory capture theory, which states that federal agencies were becoming controlled by the interests of those that they were supposed to regulate.
Furthermore, Richard Nixon’s election changed the perception of what the role of a president in legislation should be like as Nixon, unlike his predecessors of the 20th century, did not want to play a part in the legislative process, particularly after his dual scandals involving Watergate and Vietnam.
This corresponding reshaping, in turn, led to a set of internal reforms inside the legislature. The result of this was the passage of a series of external laws that solely increased legislative power. It also diminished the power of the president as well as bureaucracy. However, these new roles Congress gave itself were largely non-legislative.
While Congress passed numerous pieces of legislation throughout the 1970s to restrain the presidency, the Budget and Impoundment Control Act of 1974 caused the bloviated deficits that Congress currently produces. It is the final section of the act, dealing with impoundment, which should be taken into consideration as it relates to the report.
By definition, all impoundment is simply the president’s decision not to spend money that Congress has allocated, which was an idea that goes back to 1803. In his administration, President Jefferson declined to spend appropriated funds for gunboats once a crisis had passed that required their construction. After this, he subsequently released the money to be spent; it was not a permanent impoundment.
President Nixon realized, however, that if he was going to fight the Democrat super majority in Congress, he was going to have to choke off the money that supported the administrative state. Nixon turned to impoundment as a means to achieve his policy objectives and cancel entire programs.
Congress responded to this in the Budget and Impoundment Control Act of 1974 by eliminating the presidential power of impoundment and replacing it with a much more limited mechanism called rescission. This procedure still allowed the president to suspend an expenditure, but it was for only forty-five days, and it had to come with an explanation as well as a sum of the rescinded funds. Congress, after this action, had forty-five days to decide whether or not to uphold the decision or order the release of the funds. Furthermore, if Congress did nothing at the end of the forty-five days, the expenditure then still had to be made.
With all of this taken into consideration, the Government Accountability Office’s report is standing on thin ice as the legality of the bill is questionable at best. But, the actions are still further complicated by other laws, specifically 2 U.S. Code § 687. To end this fight between the Legislative and Executive Branches that has been simmering for decades, the United States must look at the legality of the Budget and Impoundment Control Act of 1974 as well as numerous other pieces of legislation that warp the separation of powers principle as laid out within the Constitution. Only then will Americans be able to tell if the actions of President Trump were indeed in compliance with federal law.
The views expressed in this article are the opinion of the author and do not necessarily reflect those of Lone Conservative staff.