Pocket Rescissions: Another Perversion of the Impoundment Control Act

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on “fiscal policy or other reasons,” the president can submit a special message to Congress proposing that they be “rescinded,” i.e., canceled.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.