Introduction

In the first 100 days of his second term, President Donald Trump made a bid for stronger presidential control over federal spending. One key feature of this “appropriations presidentialism,” as two coauthors and I have called it, 1Open this footnote Close this footnote 1 Matthew B. Lawrence, Eloise Pasachoff & Zachary S. Price, Appropriations Presidentialism, 114 Geo. L.J. Online (forthcoming 2025). …Open this footnote Close is an effort to establish broader unilateral authority to “impound,” or decline to spend, appropriated funds.

As of this writing (in summer 2025), it remained to be seen how far President Trump would take this idea. Nevertheless, his Administration’s early actions appeared to reflect both a constitutional argument for a preclusive presidential impoundment prerogative and a practical argument that the executive branch is better suited than Congress to represent the common good in federal spending. Although both these arguments have historical antecedents, both are mistaken. Ironically, the Trump Administration’s early actions with respect to impoundment only highlight the virtues of the positions it rejects. Rather than continue its trajectory toward executive governance, the United States should adhere to the formal constitutional framework, including its requirement of productive negotiation between Congress and the presidency over spending and other policy questions.

Part I of this brief Essay describes the Administration’s impoundment-related actions. Part II considers and rejects the constitutional arguments for a presidential impoundment prerogative. Part III describes the Administration’s practical argument, and Part IV rebuts it. Reiterating arguments I have made elsewhere for “symmetric” constitutional understandings—understandings that confer valuable protections on both sides of major partisan and ideological divides instead of favoring just one side 2Open this footnote Close this footnote 2 See Zachary S. Price, Constitutional Symmetry: Judging in a Divided Republic 2-4, 37 (2024). …Open this footnote Close —Part IV argues that maintaining congressional control over spending accords better with this goal. The Essay ends with a conclusion encouraging courts and others to reject a constitutional impoundment power.

I. What the Administration Has Been Doing

Since the enactment of the Impoundment Control Act (ICA) in 1974, federal law has generally barred the executive branch from “impounding,” or declining to spend, appropriated funds. 3Open this footnote Close this footnote 3 2 U.S.C. §§ 682-688; see Zachary Price, A Primer on the Impoundment Control Act, Lawfare (Jan. 28, 2025, 1:50 PM), https://perma.cc/‌Q6J6-3FUQ. …Open this footnote Close Under this statute, spending funds provided to the executive branch in an appropriations statute is generally obligatory. Presidents may not even defer spending within a single fiscal year except for reasons consistent with faithful administration of the policy reflected in the appropriation; if they want to rescind, or cancel, the spending altogether, they must propose that Congress enact new legislation doing so. 4Open this footnote Close this footnote 4 2 U.S.C. §§ 683-684; Price, supra note 3. …Open this footnote Close

Donald Trump’s 2024 reelection campaign promised, however, that Trump, if elected, would “restore executive branch impoundment authority to cut waste, stop inflation, and crush the Deep State.” 5Open this footnote Close this footnote 5 Agenda47: Using Impoundment to Cut Waste, Stop Inflation, and Crush the Deep State, Donald J. Trump (June 20, 2023), https://perma.cc/‌ML69-8MGR. …Open this footnote Close “When I return to the White House,” Trump pledged, “I will do everything I can to challenge the Impoundment Control Act in court, and if necessary, get Congress to overturn it. We will overturn it.” 6Open this footnote Close this footnote 6 Id. …Open this footnote Close Offering some indication of what such a challenge would look like, Mark Paoletta, the General Counsel for the Office of Management and Budget (OMB) during both Trump Administrations, published two coauthored reports in 2024 (before Trump’s reelection) advancing constitutional arguments for presidential impoundment authority. 7Open this footnote Close this footnote 7 Mark Paoletta, Daniel Shapiro & Brandon Stras, The History of Impoundments Before the Impoundment Control Act of 1974, Ctr. for Renewing Am. (June 24, 2024), https://perma.cc/‌5MUB-5Z8C; Mark Paoletta & Daniel Shapiro, The President’s Constitutional Power of Impoundment, Ctr. for Renewing Am. (Sept. 10, 2024), https://perma.cc/‌JT76-AXGQ. …Open this footnote Close In addition, in a November 2024 op-ed, Elon Musk and Vivek Ramaswamy—then the planned heads of a proposed “Department of Government Efficiency” (though only the former ultimately assumed that role)—argued that the Supreme Court, if presented with the issue, would likely endorse a constitutional impoundment power. 8Open this footnote Close this footnote 8 Elon Musk & Vivek Ramaswamy, The DOGE Plan to Reform Government, Wall St. J. (Nov. 20, 2024, 12:33 PM ET), https://perma.cc/‌K9LY-MJQH. …Open this footnote Close

In its first few months, the Trump Administration did not squarely embrace constitutional arguments against the ICA as its official position. It did, however, pause, freeze, or cancel spending in ways that appeared hard to explain without some Article II justification, 9Open this footnote Close this footnote 9 See Lawrence, Pasachoff & Price, supra note 1 (manuscript at 10) (on file with author); U.S. Dep’t of Transp., B-337137, 2025 WL 1521234 (Comp. Gen. May 22, 2025). …Open this footnote Close and in the inevitable court challenges to these actions, the Administration advanced practical and statutory arguments inflected with constitutional considerations. 10Open this footnote Close this footnote 10 See, e.g., Woonasquatucket River Watershed Council v. U.S. Dep’t of Agric., No. 25-CV-00097, 2025 WL 1116157, at *20 (D.R.I. Apr. 15, 2025) (addressing funding pauses by the Administration and concluding that “there is no clear statutory hook for this broad assertion of power”). …Open this footnote Close Trump’s OMB Director Russell Vought, moreover, indicated in an interview that the President has “executive tools” for cutting spending and that “[w]e’re certainly not taking impoundment off the table.” 11Open this footnote Close this footnote 11 Avery Lotz, Budget Head Vought Floats Impoundment to Sidestep Congress on DOGE Cuts, Axios (June 1, 2025), https://perma.cc/‌638M-9PEW. …Open this footnote Close

II. Why Impoundment Limits Are Constitutional

To the extent the Administration’s current or future actions depend on a claimed preclusive presidential authority to impound funds, courts and others should reject them. The issue, in fact, is straightforward: All the conventional considerations in constitutional interpretation cut against such a power.

To begin with, an impoundment prerogative is at odds with the formal constitutional text and structure. The Constitution not only precludes any use of public funds except “in Consequence of Appropriations made by Law”; it also obligates the President to “take Care that the Laws be faithfully executed”—a duty that extends to spending laws like every other type. 12Open this footnote Close this footnote 12 U.S. Const. art. I, § 9, cl. 7; id. art. II, § 3; see also Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 587 (1952) (“In the framework of our Constitution, the President’s power to see that the laws are faithfully executed refutes the idea that he is to be a lawmaker.”); Zachary S. Price, Enforcement Discretion and Executive Duty, 67 Vand. L. Rev. 671, 689 (2014) (explaining that the constitutional “scheme affords the President no general authority to nullify laws he does not like by failing to implement them”). …Open this footnote Close Structurally, these provisions give Congress control over the government’s resources, placing an important legislative check on unilateral executive actions. As I have argued elsewhere, Presidents hold some valid authority to disregard funding conditions and limitations that abridge presidential authorities that do not depend on congressionally provided resources in the first place; the pardon and veto powers are key examples. 13Open this footnote Close this footnote 13 For this argument, see Zachary S. Price, Funding Restrictions and Separation of Powers, 71 Vand. L. Rev. 357, 389-413 (2018). …Open this footnote Close Yet “resource-dependent” powers like law enforcement, provision of foreign aid, and use of military force are another matter; presidents must faithfully execute statutes governing such spending. 14Open this footnote Close this footnote 14 Id. at 426-49, 454. …Open this footnote Close

Looking beyond the text to functional considerations, although Congress’s “power of the purse” has always been practically important, 15Open this footnote Close this footnote 15 See, e.g., Josh Chafetz, Congress’s Constitution: Legislative Authority and the Separation of Powers 45-61 (2017). …Open this footnote Close it carries particular centrality today. Since at least the early twentieth century, Congress has regularly made broad delegations to executive agencies, and presidents, for their part, have asserted broad unilateral authority to employ military force and conduct foreign policy. 16Open this footnote Close this footnote 16 See Price, supra note 13, at 367 (discussing this context for contemporary funding disputes). …Open this footnote Close Yet funding for most government operations expires at the end of each fiscal year (or some other defined period), a legislative choice that gives Congress the leverage to limit, alter, or repudiate unilateral executive actions as a condition for renewed executive appropriations. An effective power of the purse is thus vital to contemporary checks and balances, at least as between Congress and the executive branch. 17Open this footnote Close this footnote 17 See id. at 367-69. …Open this footnote Close

To resist these conclusions, Paoletta and others have argued that Congress’s power of the purse is a power only to impose spending ceilings, not floors. 18Open this footnote Close this footnote 18 See, e.g., Paoletta & Shapiro, supra note 7. …Open this footnote Close But while it is true that the Appropriations Clause only forbids unauthorized spending, the Faithful Execution Clause requires obedience to spending mandates as well. In a vain attempt to show otherwise, impoundment proponents resort to the standard Article II Hail Mary pass: They argue that by vesting “the executive Power” and responsibility for faithful execution in the President, the Constitution confers discretion on the President to implement laws (or not) however he chooses. 19Open this footnote Close this footnote 19 Id. …Open this footnote Close As courts and even executive branch lawyers have long recognized, however, this view stands faithful execution on its head: It implausibly reimagines the duty to carry out congressional enactments as a power to ignore them. 20Open this footnote Close this footnote 20 See, e.g., Train v. City of New York, 420 U.S. 35, 45-46 (1975); Kendall v. United States ex rel. Stokes, 37 U.S. 524, 610-11, 625-26 (1838); Presidential Authority to Impound Funds Appropriated for Assistance to Federally Impacted Schools, 1 Supp. Op. O.L.C. 303, 310-11 (1969). …Open this footnote Close

Impoundment proponents have also pointed to historical practice. 21Open this footnote Close this footnote 21 Paoletta, Shapiro & Stras, supra note 7. …Open this footnote Close But while some past Presidents did indeed impound funds, the overwhelming majority of historical examples do not imply any constitutional prerogative to do so. Sometimes the appropriations statutes in question expressly made spending optional, and in other examples, Presidents typically defended impoundments based on the statutory language or background expectations about how that language would be understood; they generally did not assert any preclusive prerogative to defy clear spending mandates. 22Open this footnote Close this footnote 22 See Protect Democracy, The Myth of Presidential Impoundment Power 36 (Mar. 2025), https://perma.cc/‌Y45M-P2QC (canvassing historical examples and finding that “presidents have largely acted within the bounds of the law, and impounded funds in accordance with their statutory authority,” and that even “[w]hen presidents have impounded funds in defiance of statute, they often have attempted to justify their actions on statutory grounds”); Zachary S. Price, Notice & Comment, The President Has No Constitutional Power of Impoundment, Yale J. Reg. (July 18, 2024), https://perma.cc/‌N5RQ-NQ4R (arguing that historical impoundments generally “reflected an operative interpretation of the underlying statutes—an understanding that Congress accepted and that Presidents generally exercised in a manner consistent with Congress’s overall policy goals”). …Open this footnote Close The main exception to this pattern is President Richard Nixon, who did forcefully assert a constitutional impoundment prerogative. 23Open this footnote Close this footnote 23 Protect Democracy, supra note 22, at 8-9. …Open this footnote Close When he did so, however, his arguments not only lost in court, but also prompted Congress to reform the budget process and establish new statutory limits on impoundment. 24Open this footnote Close this footnote 24 Louis Fisher, Presidential Spending Power 175-80, 198-99 (1975). …Open this footnote Close

Thus, not only the Constitution’s text and structure, but also functional considerations, historical practice, and judicial precedent cut against recognizing a preclusive presidential impoundment power.

III. The Administration’s Theory of Representation

On top of its legal arguments, the Administration has also appeared to advance a theory of democratic legitimacy: In at least some statements, Administration officials have suggested that unilateral executive cost-cutting is necessary and justified because Congress is too beholden to special interests to undertake essential belt-tightening. Although this argument accords with Trump’s penchant for populist disruption of supposedly corrupt existing practices, it too is unpersuasive.

A. The Administration’s Claims

Trump and his allies have at times suggested that federal agencies and their congressional patrons hold a tendency toward profligacy that only a presidential impoundment power can counteract. In a 2022 article, Russell Vought, the OMB Director during both Trump Administrations, complained that “[t]he agencies care more about the congressional appropriations committees than they do about their president.” 25Open this footnote Close this footnote 25 Russell Vought, Renewing American Purpose, Am. Mind (Sept. 29, 2022), https://perma.cc/‌7F79-5HCM. …Open this footnote Close Both agency officials and committee members, Vought went on, are “influenced by the values and milieu of a permanent ruling class in a capital city divorced from the everyday concerns and wishes of the American people themselves.” 26Open this footnote Close this footnote 26 Id. …Open this footnote Close As a remedy for these putative problems, Vought advocated a “Radical Constitutionalism” centered on establishing stronger presidential power. 27Open this footnote Close this footnote 27 See id. …Open this footnote Close

Sounding similar themes, Paoletta’s impoundment reports suggest that presidential control over spending is necessary to ensure efficient administration. “The President,” Paoletta and his coauthor wrote, “is the only officer who can ‘command a view’ of the entirety of the federal government and ensure that programs are being implemented in a reasonable, nonredundant manner that furthers the national interest.” 28Open this footnote Close this footnote 28 Paoletta & Shapiro, supra note 7 (quoting Thomas Jefferson, First Inaugural Address (Mar. 4, 1801), in 33 Papers of Thomas Jefferson 148, 152 (Barbara B. Oberg, ed. 2007)). …Open this footnote Close For his part, Trump suggested in a campaign statement that impoundment is “the ONLY way we will ever return a balanced budget.” 29Open this footnote Close this footnote 29 Agenda47, supra note 5. …Open this footnote Close Implying that spending mandates often serve special interests, Trump explained that “[t]he pain of the spending cuts must be borne by the special interests and Washington bureaucrats, NOT by American families and American seniors in particular.” 30Open this footnote Close this footnote 30 Id. …Open this footnote Close

B. Historical Antecedents

Whether or not Trump and his allies appreciate it, arguments of this sort have been a staple of budget reform discourse for over a century. As the political scientist John Dearborn has documented, such arguments were a major motivation for the Budget and Accounting Act of 1921 (BAA), a landmark law that centralized authority over the federal budget in a new Bureau of the Budget (the precursor to OMB). 31Open this footnote Close this footnote 31 John A. Dearborn, Power Shifts: Congress & Presidential Representation 50-51 (2021). …Open this footnote Close Before this reform, agencies submitted their own independent appropriations requests to Congress. 32Open this footnote Close this footnote 32 See, e.g., James P. Pfiffner, OMB, the Presidency, and the Federal Budget, in Executive Policymaking: The Role of the OMB in the Presidency 11, 12 (Meena Bose & Andrew Rudalevige, eds. 2020) (“In the nineteenth century, the executive budget process consisted of a Book of Estimates collected in the Treasury Department and forwarded to Congress with no coordination or prioritization among the separate requests by the president.”). …Open this footnote Close What is more, as I discuss in a draft article, they often overspent their appropriations, transferred funds liberally, and played fast and loose with their budgets, counting on Congress to make up any shortfalls. 33Open this footnote Close this footnote 33 Zachary S. Price, Effectuating Congress’s Power of the Purse 13, 24-29 (July 5, 2025) (unpublished manuscript) (on file with author). …Open this footnote Close As a result, Congress (or at least some Representatives and Senators) held considerable sway over administration, yet budgeting was unpredictable and critics complained that particular departments and their congressional patrons acted in their own interests, rather than the overall national interest. 34Open this footnote Close this footnote 34 Id. at 51-52; see also Jonathan Kahn, Budgeting Democracy: State Building and Citizenship in America 1890-1928, at 164 (1997) (“[T]he proponents of a national executive budget system articulated a theory of delegated authority that cast the president as both an agent of Congress, carrying out its general directions, and as the best representative of the national interest, standing in opposition to the localistic interests of individual congressmen.”). …Open this footnote Close The BAA shifted responsibility to the President on the theory that his “unique national perspective” could counteract these problems. 35Open this footnote Close this footnote 35 Dearborn, supra note 31, at 51. …Open this footnote Close

This political theory continued to animate budget debates (along with other reforms) in the succeeding decades. 36Open this footnote Close this footnote 36 See id. at 21. …Open this footnote Close To justify his own impoundments half a century later, President Nixon told reporters at a press conference, “The difficulty, of course[,] . . . is that the Congress represents special interests.” 37Open this footnote Close this footnote 37 President Richard Nixon, News Conference (Jan. 31, 1973), reprinted by Am. Presidential Project, https://perma.cc/‌7MBX-5KKM (archived on July 10, 2025). …Open this footnote Close Nixon explained:

The Interior Committee wants to have more parks and the Agriculture Committee wants cheap REA loans and the HEW Committee or the Education and Labor Committee wants more for education and the rest, and each of these wants we all sympathize with. But there is only one place in this Government where somebody has got to speak not for the special interests which the Congress represents but for the general interest. 38Open this footnote Close this footnote 38 Id. …Open this footnote Close

Accordingly, Nixon declared, “I will not spend money if the Congress overspends.” 39Open this footnote Close this footnote 39 Id. …Open this footnote Close This same outlook popped up again during Ronald Reagan’s presidency, when some complained that an “iron triangle” of spending beneficiaries, congressional politicians, and government bureaucrats thwarted the general public interest by stymieing Reagan’s cost-cutting efforts. 40Open this footnote Close this footnote 40 Milton Friedman & Rose Friedman, Tyranny of the Status Quo 42 (1984). Reagan’s budget hawk OMB Director David Stockman similarly lamented that congressional opposition stymied rigorous budget cuts in the Reagan era, yet Stockman blamed the electorate rather than any failure of representation. “[T]he spending politics of Washington,” Stockman wrote, “do reflect the heterogeneous and parochial demands that arise from the diverse, activated fragments of the electorate scattered across the land. What you see done in the halls of the politicians may not be wise, but it is the only real and viable definition of what the electorate wants.” David A. Stockman, The Triumph of Politics: How the Reagan Revolution Failed 377 (1986); see also Zach Weissmueller, Milton Friedman’s Warning to DOGE, Reason (Apr. 8, 2025, 11:40 AM), https://perma.cc/‌M8M6-PLRE (reflecting on DOGE’s prospects in light of Stockman’s experience and the Friedmans’ critique). …Open this footnote Close

C. Problems with Presidential Representation Today

Thus, whereas little precedent supports the Trump Administration’s constitutional impoundment argument, a practical argument based on notions of presidential representation was a recurrent feature of past spending debates. This argument even appears to have helped motivate major reforms such as the BAA’s enactment in 1921. Whatever force this theory may once have had, however, it is badly mismatched with contemporary political reality.

Although belief in presidential representation was already fading by their time, Nixon and Reagan could plausibly claim strong democratic mandates based on their decisive electoral victories. 41Open this footnote Close this footnote 41 For data on presidential election results, see Historical Presidential Elections, 270toWin, https://perma.cc/‌ND4Z-9PQC (archived July 10, 2025). For discussion of Nixon’s popular mandate and its relevance to impoundment debates, see Dearborn note 31 above, at 162 (“With a resounding reelection victory in 1972, winning forty-nine of the fifty states, Nixon dared Congress to second-guess who spoke for the nation.”). …Open this footnote Close Yet Trump lost the popular vote in 2016 and won only a plurality in 2024. 42Open this footnote Close this footnote 42 See Historical Presidential Elections, supra note 41. …Open this footnote Close And as Trump’s narrow margins and those of other recent Presidents illustrate, Presidents today do not represent the entire polity in any credible sense; they instead represent one side of a political system riven by sharp cultural and ideological divisions. 43Open this footnote Close this footnote 43 See, e.g., Nicholas F. Jacobs, Desmond King & Sidney M. Milkis, Building a Conservative State: Partisan Polarization and the Redeployment of Administrative Power, 17 Persps. on Pol. 453, 453 (2019) (“[W]hile liberals seek to build administrative capacity to design and implement social welfare policies, conservatives have sought to redeploy and extend that power in pursuit of their own partisan goals.”); Matthew C. Stephenson, Optimal Political Control of the Bureaucracy, 107 Mich. L. Rev. 53, 83 (2008) (“[Q]uantitative research shows a consistent and sizable divergence between the views of the median voter in the national electorate and the positions of political parties and presidential administrations.”). …Open this footnote Close Accordingly, far from advancing a general interest in “crush[ing]” the bureaucracy and federal funding beneficiaries, 44Open this footnote Close this footnote 44 Agenda47, supra note 5. …Open this footnote Close Trump’s impoundments—like many of his other early actions—look more like an effort by one political faction to weaken the groups and institutions that support its rivals. 45Open this footnote Close this footnote 45 See, e.g., Andrew Sullivan, The American Caudillo, The Weekly Dish (June 13, 2025), https://perma.cc/‌323B-F82L (observing that many of Trump’s policies amount to “theater” oriented toward “gin[ning] up a conflict” and “us[ing] it to smash and intimidate domestic opposition”). …Open this footnote Close

To be sure, there is some truth to complaints that congressional appropriations give undue influence to narrow interests: The logrolling character of appropriations may sometimes mean indulging particular representatives’ and senators’ narrow priorities as the price of maintaining overall support. 46Open this footnote Close this footnote 46 See, e.g., Molly E. Reynolds & Peter C. Hanson, Just How Unorthodox? Assessing Lawmaking on Omnibus Spending Bills, 21 Forum 213, 235 (June 2023) (reporting evidence that “the omnibus appropriations process remains a way for individual, rank-and-file legislators to garner legislative achievements”). Interestingly, many in the framing period appear to have made the opposite assumption: They expected legislatures to embody republican values of thrift and self-discipline that would temper executive tendencies toward excess. See Gerhard Casper, Separating Power: Essays on the Founding Period 77 (1997) (suggesting that “during the founding period money matters were thought of primarily as a legislative prerogative” in part because of “the—for us perhaps counterintuitive—hope that assuring legislative supremacy in fiscal matters would bring about the moderation, temperance, and frugality without which free government would be endangered”). …Open this footnote Close Nevertheless, Congress’s legislative control over spending is both formally required and practically important, for all the reasons discussed in Part II, and the President today cannot credibly claim to represent the overall national interest any better.

IV. The Framers’ Better Path

If Trump’s implicit theory of presidential representation is flawed, what theory of democratic and constitutional legitimacy should inform separation-of-powers analysis as the Trump Administration moves forward? As I have argued elsewhere, the same political divisions that produce ideological presidents also encourage those presidents and other political actors to embrace instrumental approaches to constitutional interpretation—just as the Administration is now doing with respect to impoundment. 47Open this footnote Close this footnote 47 Price, supra note 2, at 24-27. …Open this footnote Close The political moment, however, calls for just the opposite. To counteract the current destabilizing tendency to politicize interpretation, courts should favor “symmetric” constitutional understandings, meaning holdings and doctrinal formulations that “offer equivalent—that is, symmetric—protection in parallel circumstances on opposite sides of major partisan and ideological divides.” 48Open this footnote Close this footnote 48 Id. at 2-3, 36. …Open this footnote Close

With respect to spending, preserving congressional authority to mandate expenditure is far more symmetric than Trump’s competing view. For one thing, such legislative authority enables multiple political interests, including those associated with the minority party in Congress, to shape federal spending, and thus government policy. By contrast, impoundment gives priority to whichever faction presently holds the White House. Furthermore, although in principle presidents from both parties could equally employ impoundment to cut spending they disfavor, in the aggregate this power is likely to stack the deck in favor of the coalition—namely, the Republican Party at present—that more strongly favors cutting benefits and slackening domestic economic and social regulation. 49Open this footnote Close this footnote 49 Cf. id. at 151-52 (discussing asymmetry of abrogating civil service protections for government employees). See generally Jody Freeman & Sharon Jacobs, Structural Deregulation, 135 Harv. L. Rev. 585 (2021) (discussing the deregulatory potential of eliminating government capacity). …Open this footnote Close

At any rate, in a reflection of the Constitution’s own implicit orientation toward symmetry, congressional authority over spending accords better than a presidential impoundment power with the theory of representation reflected in the document itself. By requiring legislation to result from a productive negotiation between the House, Senate, and President—each with different electoral constituencies—the framers implicitly embraced the notion that major changes in nationwide policy should require strong support from overlapping and geographically distributed majorities. 50Open this footnote Close this footnote 50 See, e.g., John F. Manning, Textualism and the Equity of the Statute, 101 Colum. L. Rev. 1, 57-58, 75-76 (2001) (noting that bicameralism and presentment seem designed “to give minorities . . . exceptional power to block legislation as a means of defense against self-interested majorities”). …Open this footnote Close And while delegation to administrative agencies has partially relaxed this requirement in some areas, that context, again, only makes Congress’s power of the purse all the more important: The annual appropriations process today provides a key mechanism for ensuring that government policy continues to reflect a degree of broad-based support, as the framers intended. 51Open this footnote Close this footnote 51 See, e.g., Gillian E. Metzger, Taking Appropriations Seriously, 121 Colum. L. Rev. 1075, 1140 (2021) (“[P]articularly when combined with the practice of annual or time-limited appropriations, the Clause ensures that the executive branch must continuously secure congressional support for its chosen courses of action.”); Price, supra note 13, at 367-69 (discussing annual appropriations’ centrality in establishing accountability for modern presidents); Chafetz, supra note 15, at 66, 72 (discussing how congressional control over spending provides influence over policy and noting that “the federal bureaucracy” appears “broadly responsive to congressional preferences”). …Open this footnote Close

In some recent decisions, the Supreme Court has in fact sought to reinforce this form of representation. The Court has thus held in several statutory-interpretation cases that agency actions addressing questions of major societal importance require clear statutory authorization. 52Open this footnote Close this footnote 52 See, e.g., Ala. Ass’n of Realtors v. Dep’t of Health & Hum. Servs., 141 S. Ct. 2485, 2489 (2021); West Virginia v. EPA, 142 S. Ct. 2587, 2608-10 (2022). …Open this footnote Close As I have explained elsewhere, this interpretive presumption appears designed “to implement the Constitution’s implicit judgment that significant changes in national policy should require support from broad, overlapping majorities.” 53Open this footnote Close this footnote 53 Price, supra note 2, at 160. …Open this footnote Close The doctrine, in other words, seems oriented toward requiring congressional involvement when it most matters while preserving Congress’s authority to delegate policy discretion when it does so clearly or when concerns about broad-based popular support are less salient. 54Open this footnote Close this footnote 54 Id. at 159-60. …Open this footnote Close If the Court has such goals in mind, however, the major questions doctrine is a flawed means of pursuing them, for the simple reason that the criteria for applying it—the standards for what makes a question “major”—are amorphous and subjective. As a result, those criteria all but invite biased, and therefore asymmetric, applications across different policy domains. 55Open this footnote Close this footnote 55 See id. at 161-63 (advancing this critique). …Open this footnote Close

The Court could do better by taking care to protect Congress’s constitutional power over spending. As we saw, Congress properly holds authority to determine the level of resources for different government activities, as well as the conditions and limitations applicable to those resources’ deployment. 56Open this footnote Close this footnote 56 See supra Part II. …Open this footnote Close By safeguarding this authority against impoundment and other unlawful forms of appropriations presidentialism, courts may preserve a meaningful requirement of interbranch negotiation and distributed representation in our divided and polarized polity—and they may do so in a manner that, unlike the major questions doctrine, is readily administrable in an unbiased fashion.

In sum, Congress’s power over government spending, including equally the powers to mandate and forbid expenditures, is a central legislative authority, one that is especially vital to contemporary checks and balances. Under current conditions of political division and animosity, protecting this power can ensure that federal policy retains broad-based political support of the sort that the Framers sought to ensure through the legislative process.

Conclusion

Although the Trump Administration’s actions during its first 100 days suggest it believes the President holds an Article II impoundment prerogative, this view is mistaken. Reading such a power into the Constitution would defy the document’s text and structure, weaken the representative character of federal policy, and degrade checks and balances that ensure accountable and responsive governance amid contemporary political divisions. It thus reflects a flawed theory of representation as well as a meritless reading of our founding charter. Courts and other institutions should reject it today just as they have done in the past.

*Eucalyptus Foundation Endowed Chair, University of California College of the Law, San Francisco. I am grateful to Diego Zambrano, the Neukom Center for the Rule of Law, and the Stanford Law Review for including me in this Special Symposium on “100 Days of the Trump Administration.” I thank fellow Special Symposium participants for helpful reactions, Eloise Pasachoff for comments on an earlier draft, Laura Belyavski for excellent research assistance, the UC Law SF Academic Dean for research support, Tony Pelczynski and other UC Law SF Librarians for help identifying sources, and the Stanford Law Review Online editors for helpful editing and thoughtful comments.