Month: September 2025

As frequently noted, the Supreme Court has been far more reluctant than lower courts to rule against Trump. There are plausible explanations for this disparity other than the assertion by many on the left that pro-Trump bias is at work. However, yesterday’s 6-3 emergency docket ruling in Department of State v. AIDS Vaccine Advocacy Coalition (aka Global Health Council v. Trump) is a major cause for concern. The conservative majority’s siding with the Trump administration here not only seems clearly wrong on the merits but rewards a series of outrageous, bad faith tactics by the administration.

While the case deals with the arcane subject of impoundment of appropriated funds, its subtext involves important issues of separation of powers. The background is described in detail here and here. To summarize:

In early 2025, the Trump administration impounded (i.e., decided not to spend) billions of dollars in foreign aid funds appropriated by Congress because it disagreed with Congress’s policy choices in enacting those appropriations. The president has no constitutional authority and only limited, temporary statutory authority (see below) to refuse to carry out an appropriation act based on policy differences with Congress.

The Impoundment Control Act (ICA) provides that if the president objects to spending appropriations for policy reasons, he may send a message to Congress proposing the “rescission” (i.e., repeal) of the funds. The ICA allows the funds to be withheld for 45 days while Congress considers a rescission bill. However, the funds must be made available for use if Congress fails to pass such a bill within the 45 days.

The administration failed to submit a rescission proposal to Congress early in 2025 when it decided not to spend the foreign aid funds. This was a blatant violation of the ICA.

Prospective recipients of the foreign aid funds sued the administration over the impoundment. In March 2025, a federal district court found the impoundment illegal based on the ICA violation and other grounds and ordered the funds to be made available. The court’s order was in effect for about four months but the administration apparently did little if anything to comply with it.

At the end of August, the administration finally submitted a rescission message to Congress–less than 45 days before the appropriations expired (i.e., ceased to be available for use) on September 30. This so-called called “pocket rescission” also violated the ICA since it enabled the president to unilaterally (and unconstitutionally) repeal the appropriations without congressional action. Thus, the administration violated the ICA once in early 2025 in order to position itself to violate the Act again in August, with the second violation effectively eliminating the funds.

In the litigation, the administration offered little defense of its actions on the merits. Rather, it perversely argued that the ICA barred the suit. Specifically, it maintained that an ICA provision authorizing the Comptroller General to sue to remedy violations of the Act foreclosed challenges to impoundments by any other party. As Justice Kagan’s dissent points out, this argument is contradicted by the plain language and entire background of the ICA.

The administration’s argument is not only wrong but also thoroughly disingenuous. The Trump administration is doing everything it can to hamstring the Comptroller General in carrying out his functions under the ICA and would undoubtedly contest his constitutional ability as a legislative branch official to sue. In short, the administration’s real strategy is to prevent suits by anyone to challenge its impoundments.

The administration also made much of the difficulties it would face in applying the funds at the eleventh hour. Of course, any such problems were entirely of its own making due to its protracted, unlawful delays.  

It’s not surprising that the Trump administration would engage in such deceitful conduct and legal arguments. What’s shocking is that the six conservative justices sided with the Trump administration and condoned its misconduct. The majority offered no explanation beyond bare assertions that the administration had made “sufficient” showings to justify emergency relief; nor did the majority offer any rebuttal to Justice Kagan’s cogent dissent.

The majority concluded its brief order by noting that it reflected only their “preliminary view” and “should not be read as a final determination on the merits.” But the apparent effect of the Court’s action is to allow the appropriations at issue to expire unused, thereby mooting the case.

Given the Supreme Court’s typical (and unfortunate) lack of explanation for emergency docket rulings, there’s no to way to discern the majority justices’ thinking. However, it’s hard to see any sound basis for their action. Perhaps it’s an example of the majority’s extreme ideological bias toward the executive branch that was on display in its deeply flawed presidential immunity decision. Perhaps, the majority somehow accepted “the asserted harms to the Executive’s conduct of foreign affairs” as outweighing all other considerations. Hopefully, it’s not a sign of bias toward or fear of Trump. In any event, the outcome hardly instills confidence that SCOTUS is prepared to stem Trump’s lawlessness.

   

         

The Trump administration’s all too frequent duplicity pervades its approach to impounding, i.e., refusing to spend, appropriations enacted for purposes it opposes. It flouts the president’s constitutional obligation to take care that appropriation acts are “faithfully executed” and largely ignores the Impoundment Control Act of 1974 (ICA), which the administration condemns as unconstitutional.    

Ironically, the administration is now cherry picking and embracing isolated provisions of the supposedly unconstitutional ICA and perversely using them to undermine the Act. It fended off a challenge by potential grantees to its massive impoundment of foreign assistance funds in Global Health Council v. Trump by persuading the D.C. Circuit that only the Government Accountability Office (GAO) could sue to enforce the ICA.^[1]See here for background. At the same time, it’s doing all it can to impede GAO’s ability to carry out its responsibilities under the Act.

The administration’s most recent ploy to pervert the ICA is so-called “pocket rescission.”

The ICA generally prohibits the executive branch from refusing to spend appropriations based on disagreement with the congressional policy choices they embody. It provides only one limited way to do this. If the president believes that appropriated funds should not be used based on “fiscal policy or other reasons,” the president can submit a special message to Congress proposing that they be “rescinded,” i.e., canceled.

Rescission requires a full-blown act of Congress since it repeals part of another law (the appropriation act). Therefore, the ICA permits the funds involved to be withheld from use for 45 days in order to give Congress time to consider rescission legislation. If Congress does not complete action on a rescission bill within that 45-day window, the ICA requires that the withholding end and the funds be made available for use.

On August 29, the Trump administration submitted a special message to Congress under the ICA proposing to rescind $4.9 billion in foreign assistance appropriations that funded what it described as “woke, weaponized, and wasteful spending.” However, these appropriations will expire by their terms, i.e., cease to be available for use, on September 30–well before the end of the ICA’s 45-day withholding period. This gambit, called a “pocket rescission,” in effect enables the administration to cancel the funds unilaterally without congressional action.

Pocket rescissions are the brainchild of Office of Management and Budget Director Russell Vought. The legal argument in support of them is that the ICA does not literally impose a time limit on when rescission proposals can be submitted and that presidents have in the past submitted such proposals late in a fiscal year, allowing funds to expire during the 45-day period. But most sources, including GAO, consider pocket rescissions to be illegal. Moreover, the limited and ambiguous history of this practice does not demonstrate congressional acceptance of it.

The opponents of pocket rescission have the stronger argument by far. Pocket rescissions are obviously incompatible with the fundamental purpose and design of the ICA by effectively transferring to the president Congress’s authority to amend an appropriation act by rescission. If the ICA were interpreted to grant the president such authority it probably would be held unconstitutional for the same reasons that the Supreme Court overturned a statute granting the president line item veto authority.

Pocket rescissions also contradict the specific language of the ICA since they nullify the Act’s key command that funds proposed for rescission must be made available if Congress fails to complete action on a rescission bill within the prescribed 45 days. Only Congress can cancel a duly enacted appropriation. The 45-day window for withholding funds is not an independent, free-standing grant of authority to cancel spending; it merely preserves the status quo to give Congress time to act.

Finally, it’s important to consider the administration’s extraordinary bad faith in proposing this particular pocket rescission. The only conceivable justification for a pocket rescission would be if the circumstances prompting it did not arise until shortly before the funds were scheduled to expire. That is emphatically not the case here.

As early as January 2025 and certainly no later than March, it was abundantly clear that the administration had no intention of spending the foreign assistance appropriations. Therefore, the ICA required submission of a rescission proposal to Congress at that time. Indeed, a federal district court held in March that the administration’s failure to do so violated the ICA and ordered it to make the appropriations available for obligation.

The district court’s order remained in effect until mid-August when it was vacated by the D.C. Circuit.^[2]The appellate court’s decision did not reach the issue of whether there was an ICA violation. It’s unclear what the administration did to comply with the district court’s order to make the funds available during the over four months the order was in effect. Apparently little or nothing since the $4.9 billion remained unused throughout.

In short, the administration deliberately and unlawfully stalled its rescission submission until late August in order to bypass Congress via an eleventh hour pocket rescission. Simply stated, it committed one violation of the ICA in order to position itself to commit another.      

The administration’s actions here are a blatant abuse of the ICA. Appallingly, it appears they will get away with it. In an emergency docket ruling, the Supreme Court apparently bought the argument that by virtue of the ICA only GAO can challenge impoundments. And it appears too late even for GAO to act before the funds expire given the ICA’s requirement that GAO provide 25 days advance notice to Congress before suing.

One can only hope that outrages like this will eventually prompt this quiescent Congress to wake up and reassert itself as a functioning, coequal branch of government.

 

Spearheaded by Office of Management and Budget (OMB) Director Russell Vought, the Trump administration is engaged in a broad assault on Congress’s constitutional power of the purse. It claims sweeping authority to “impound,” i.e., refuse to spend, appropriations enacted by Congress for purposes the administration opposes.  

This campaign to wrest control of spending from Congress features the bad faith tactics that are all too characteristic of the Trump administration and its Justice Department abettors. They have seized upon a law they previously condemned as unconstitutional–the Impoundment Control Act–and turned it on its head by seeking to use it not to control impoundments but to prevent judicial and congressional review of the administration’s impoundment practices.

These perverse administration tactics are on full display in the administration’s massive impoundment of foreign assistance appropriations. This post explores its attempt to stymie judicial review of impoundments; a subsequent post will address its effort to use “pocket rescissions” to circumvent Congress.

Impoundment and the ICA

Appropriation acts are federal laws; the president has no more authority to disregard or undercut them than any other law. On the contrary, the Constitution (Art. II, sec. 3) requires the president to see to it that appropriation acts, like other laws, are “faithfully executed.”

Appropriations are typically written broadly and grant the executive branch considerable discretion in implementing them. Most executive actions affecting their timing and use are routine and consistent with their purposes. The problem arises when the executive branch delays or refuses to use appropriations based on disagreement with their purposes. These are known as “policy impoundments.” No court has recognized a constitutional power on the part of the president to engage in policy impoundments; rather, doing so is widely regarded as a breach of the president’s constitutional obligations.^[1]See here and here for background.

The Impoundment Control Act of 1974 (ICA) was enacted in response to policy impoundments by the Nixon administration. As its title indicates, the ICA is fundamentally designed to limit and regulate impoundments. It requires the president to notify Congress in a special message when spending under an appropriation is “deferred” (delayed), and it limits the permissible reasons for deferrals. Policy differences are generally not a permissible reason.

The only exception is when the president sends a special message to Congress proposing that it “rescind” (in effect repeal) an appropriation “for fiscal policy or other reasons.” Funds proposed for rescission may be withheld for up to 45 days to give Congress time to consider the president’s proposal, but they must be released if Congress fails to complete action on a rescission bill within that time window.

The ICA assigns the Comptroller General of the United States, head of the Government Accountability Office (GAO), investigative and enforcement responsibilities relating to impoundments. Among other things, the Comptroller General must report to Congress when GAO determines that the executive branch has impounded funds without submitting a required special message. In the case of an unreported rescission, the Comptroller General’s report has the same effect as a presidential special message, triggering the 45-day deadline for withholding funds. The ICA authorizes the Comptroller General to sue to require the release of funds impounded in violation of the Act after giving Congress 25 days advance notice of intent to sue.^[2]See here and here for background on the ICA.   

Foreign assistance funds and Global Health Council v. Trump

In January 2025 the president and the secretary of state ordered a blanket 90-day suspension of billions of dollars in congressionally appropriated foreign assistance funds in order to “review” their “alignment” with Trump administration policies. The executive order requiring the review clearly telegraphed its outcome: “The United States foreign aid industry and bureaucracy are not aligned with American interests and in many cases antithetical to American values.”  

This suspension prompted a lawsuit by prospective recipients of the funds. In March 2025, a federal district court concluded that the suspension was unconstitutional and violated the Administrative Procedure Act as well as the ICA. Based on statements by the president and other administrations officials, the court found that they had no intention of spending the funds. Indeed, administration lawyers told the court that the review was complete and most  congressionally appropriated foreign assistance funds would be canceled. Accordingly, the court issued an injunction requiring that the funds be made available for obligation.

On August 13, a panel of the D.C. Circuit in a 2-1 decision vacated the district court’s injunction. Among other things, the appellate court adopted the administration’s argument that a suit by the Comptroller General under the ICA provided the exclusive means of challenging allegedly illegal impoundments; therefore, the grantees could not independently seek judicial review. 

The administration’s belated and wholly insincere invocation of the ICA

The Trump administration has long maintained that the ICA is unconstitutional, and its actions in this case were consistent with that view. Its failure to submit a special impoundment message on its suspension and determination to forego use of foreign assistance appropriations was a flagrant violation of the Act.

But administration lawyers have now warmed to the ICA, invoking it as a means to fend off challenges to impoundments. Their position is set forth at length in an emergency application they filed with the Supreme Court in the Global Health Council case.^[3]Supreme Court intervention proved to be unnecessary, but the application still provides a useful exposition of the administration’s position. They laud the ICA as a mechanism to initiate “negotiations” between the executive branch and Congress over impoundments and facilitate “interbranch dialogue.” They complain that allowing private parties to challenge impoundments would “circumvent the ICA’s procedures” and “preempt and thwart negotiations between the political branches over the expenditure of appropriated funds.” Allowing other parties to “leapfrog” the Comptroller General and sue would upend the “carefully calibrated process” the ICA sets out for the political branches to resolve disputes over impoundments and seek judicial intervention only as a last resort.

The administration’s embrace of suits by the Comptroller General is a subterfuge

Using the Comptroller General’s authorization to sue under the ICA as the basis to foreclose suits by other parties is both a perversion of the Act and wholly disingenuous. If the Comptroller General did sue, the administration would surely contest his constitutional authority to do so and could well prevail. Moreover, the administration is working hard behind the scenes to impede the Comptroller General’s ability to sue. Clearly, what the administration really seeks here is a catch 22 situation in which nobody can obtain judicial review of its impoundments.

More than a decade after enactment of the ICA, the Supreme Court ruled that the Comptroller General is a legislative branch official who cannot perform “executive” functions. Suing to enforce a law is fundamentally an executive function. Furthermore, the Comptroller General would be suing as an agent of Congress and members of Congress generally lack standing to sue to enforce a law. Trump administration lawyers are well aware of all this. In fact, their emergency application hints several times that they would oppose such a suit as nonjusticiable.  

Additionally, the administration has actively sought to obstruct GAO’s functions under the ICA. OMB and executive agencies have been uncooperative with regard to GAO’s impoundment investigations. OMB also induced House appropriators to cut GAO’s budget by half and to add statutory language restricting its ability to bring suits under the ICA.    

The administration’s position is not only devious but wrong

Contrary to the administration’s contention and the D.C. Circuit’s holding in Global Health Council, the ICA does not foreclose other judicial remedies. In fact, it says the opposite:

“Nothing contained in this Act, or any amendments made by this Act, shall be construed as . . . affecting in any way the claims or defenses of any party to litigation concerning any impoundment.”

The Senate report on the ICA legislation affirms the clear meaning of this disclaimer:

“The authority of the Comptroller General is not intended to infringe upon the right of any Member of Congress, or any other party, to initiate litigation.” (Emphasis added)

The administration and the D.C. Circuit maintain that the statutory language and legislative history are ambiguous, but their arguments are unpersuasive. At the very least, they are insufficient to rebut the strong presumption in favor of judicial review.

Finally, the assertion that it would not make sense to permit outside parties to upset the ICA’s mechanism for “interbranch dialogue” over impoundments defies reality. No such dialogue is at work here, nor apparently in other impoundments by this administration. Rather, the administration simply acts unilaterally to effectively cancel appropriations in blatant disregard of the ICA while a quiescent Congress stands by. Even worse, the House shamefully aids the administration’s efforts to undermine GAO’s work to enforce the Act.

Impoundment suits by parties other than the Comptroller General can’t interfere with interbranch political dialogue where none exists or is wanted. On the other hand, permitting the ICA to operate as a shield against such suits constitutes a very real and serious interference with the legal rights of outside parties who are harmed by illegal impoundments. The D.C. Circuit acknowledged that the Global Health Council plaintiffs suffered “immense harm” from the foreign assistance impoundment and would otherwise clearly have standing to sue to redress it. But this is exactly the outcome administration seeks.