Of the many abuses of power committed by President Richard Nixon, the withholding of money that Congress had appropriated, but that he preferred not to spend, was not among the most egregious. Although the courts ruled against him, his justification was that he was trying to save the taxpayers’ money so it could be used for more pressing needs.
In the end, Congress settled the matter by passing the Impoundment Control Act of 1974, which requires the president to report to Congress whenever he wants to hold up or not spend money that has been approved by Congress. And there is no doubt that President Trump failed to notify Congress that he has already withheld nearly $400 million in needed military aid for Ukraine to defend itself.
The Impoundment Control Act applies whenever the president wishes to hold back on spending temporarily, which is called a deferral, and when he wishes to cancel a spending permanently, known as a rescission. In both cases, the law requires the president to notify Congress promptly what he wants to do and why.
For rescissions, the president must spend the money unless Congress affirmatively approves his request not to spend. For deferrals, the law gives the president more leeway, so long as he spends the money during the current fiscal year. Even then, the law is clear that deferrals are allowed only to provide for contingencies, because of changes in the law, or to achieve greater efficiencies.
As a result of litigation in the 1980s, it is not clear whether any deferrals are lawful, but whether they are or are not, the reporting requirements are unchanged and that is where the Trump administration is in trouble.
No Special Message Sent to Congress
Congress now knows that back in mid-July, Trump ordered that the millions that Congress had appropriated for military and other aid to Ukraine be put on hold. But the Impoundment Control Act [2 U.S.C. §684] requires much more of the president: he must explain the reasons for the deferral in a special message to Congress, including any legal authority for doing so, as well as the length of time for which the money will be withheld.
Most significantly, he is required to include “all the facts, circumstances, and considerations relating to or bearing upon the proposed deferral.” There is more, but the purpose of these requirements is clear: Congress wants the full story of why the president does not want to spend the money.
Because no special message was sent for the Ukraine deferral, no explanation had been offered. But if it had, it would almost surely not have justified the deferral to allow Ukraine to carry out the president’s request to do a further investigation as to the conduct of Hunter Biden, the son of presidential candidate Joe Biden, which appears to be the reason why Ukraine did not get its money as scheduled.
President Trump himself is almost certainly not aware of the Impoundment Control Act and what it requires him to do, but officials at the Office of Management and Budget cannot claim ignorance. We do not know whether anyone raised the reporting requirement with the president or others high up in his administration, but the House should surely add that inquiry to its current investigations.
Moreover, Congress should insist that the president submit his special message on the Ukraine deferral now so that he is on record on what he did and for what reason. After all, better late than never.
What Can House Do if Trump Doesn’t Respond?
But suppose that the president does not respond, for whatever reason. The House has several choices, including one expressly provided by statute in these situations. The law also requires the president to send copies of his special message to the comptroller general (now the Government Accountability Office) which is supposed to review the report to be sure that the president has acted lawfully, including making all obligated funds available as provided by Congress.
The statute (2 U.S.C. §687) expressly authorized the GAO to sue to require the appropriate agency to spend the money as appropriated, once 25 calendar days of continuous session of both chambers of Congress has expired after informing Congress of the president’s refusal to obligate the money. Given the current calendar, and the ability of the Senate to prolong the time before that suit can be filed, that is not much of a remedy.
Interestingly, and perhaps because Congress did not envision the refusal of the president to even send a special message to Congress when he declines to spend appropriated funds, the provision on GAO suits does not mention a suit to force the president to send the required report.
It is at least arguable that the greater power to sue to require the spending includes the prior power to sue to require the filing of the reports, but perhaps not. That would still not preclude the House from suing under its own authority, although the president would surely resist that.
Finally, the House has the option of doing what is done every day in courts of law when the party in possession of evidence declines to make it available—unless there is a privilege, such as against self-incrimination. It can draw a negative inference as to what the report would show: in this case that the $400 million was withheld as leverage to push Ukraine into digging up dirt on one of the president’s political opponents.
Indeed, the House may have to follow just that approach if the president and his allies continue to stonewall the House in its legitimate inquiries as to all other subjects that are part of the current impeachment investigation.
And what better case to test the willingness to draw such inferences than in a case in which the information sought is already required by law to Congress.
This column does not necessarily reflect the opinion of The Bureau of National Affairs, Inc. or its owners.
Alan B. Morrison is the Lerner Family Associate Dean at George Washington University Law School where he teaches constitutional law.