Never let it be said that the Trump administration isn’t endlessly innovative—at least when it comes to ignoring the Constitution and usurping the legislative branch’s power of the purse. Donald Trump just dropped a pocket rescission on Congress, which is such a deep cut that it hasn’t happened since 1977. It’s also objectively, flagrantly illegal, but it’s not like that really matters.
On Thursday Trump sent a letter to hapless House Speaker Mike Johnson saying that he wouldn’t be spending $4.9 billion in foreign aid, which had already been appropriated by Congress, because he doesn’t wanna. You can see the official letter, such as it is, over on the X account for the Office of White House Management and Budget, blaring that this shows that Trump “will always put AMERICA FIRST.”
This a pocket rescission, and it’s a trick of timing.
The president does indeed have the authority to send a letter to Congress proposing not to spend something it had already appropriated. And, genuinely, why not? There’s no constitutional problem with the president asking Congress to reconsider a spending decision.
Related | Congressional Republicans are happily handing their power over to Trump
However, in some circumstances, that ask allows the president to withhold the money for up to 45 days while Congress considers the request without running afoul of the Impoundment Control Act. But the federal fiscal year ends Sept. 30. So, by asking on August 28, Trump is saying he has triggered the 45-day period during which he can legally withhold the money, and Congress can’t do anything. Then, that runs out the clock on the fiscal year, ensuring those funds never get spent.
Of course, this is getting reported by the mainstream media as a move that is unusual and unexpected, rather than what it really is: objectively and clearly illegal. Yes, Politico, this is indeed “an end-run around Congress’ funding power,” and yes, Associated Press, this is a “maneuver last seen nearly 50 years ago.” Those things are true, but there’s the whole part where it is just straight-up illegal per the Government Accountability Office, the congressional watchdog that gets to decide these things. Strange that the GAO doesn’t believe that there is One Weird Trick the president can use to sidestep an impoundment violation by picking the right day to do it.
The administration, for its part, isn’t just pretending this move is legal. They’re also pretending Congress could stop it. As a White House official told Politico, “Congress can choose to vote to rescind or continue the funds—it doesn’t matter. This approach is rare but not unprecedented.”
Except Congress literally cannot choose to vote to rescind or continue the funds. It can’t do anything while the 45 day-period runs.
Expect all your MAGA uncles to explain to you that this is totally fine and President Jimmy Carter did it first, and expect that your uncle will be displaying the usual extremely limited understanding of history that characterizes his worldview.
Carter did indeed propose two late recissions in July 1977. In one, he asked Congress to rescind $850,000 of $13.8 million appropriated to the National Transportation Safety Board to hire additional staff. Did Carter propose to take the money back to gut the NTSB or teach Congress a lesson or flex his presidential muscle? Nope. It was because the agency had encountered delays in hiring and hadn’t spent the funds. Basically, this was Carter saying, “You appropriated this to this agency, but they dithered and didn’t spend it on what it was for, so we’re asking not to spend it at all.” That’s a far cry from what Trump is doing here.
Carter’s other proposed rescission was bigger, asking not to spend $21 million appropriated for a military sales credit program. He asked for that one because a change in how financing was used meant the government could meet the full level of service Congress authorized by spending less money. Real nefarious stuff there, right? Jimmy Carter wanted to save the American people money. Donald Trump wants to plunge the most impoverished parts of the globe into starvation and chaos and death.
There have been other sporadic attempts to do this sort of thing, but the GAO has been very clear in its ruling on this: the Impoundment Control Act doesn’t let the president withhold appropriated funds through their expiration date. Period.
Of course, the administration has already shown it has no intention of following any ruling from the GAO. And Congress has been eagerly ceding its spending power to Trump. The administration always has a backup plan in case Congress rediscovers its spine: running to the Supreme Court. The administration has an emergency request up there right now to pretty please allow it to withhold a different chunk of billions in foreign aid already appropriated by Congress.
Trump believes that what he wants should always matter more than the Constitution, and he’s found the right Congress and Supreme Court to agree with him. But that still doesn’t make it legal.