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.