Using the Impoundment Control Act is the way to advance the modest discretionary spending cuts that Republicans want.
Concerns about Elon Musk and DOGE have been growing under the surface of Republican Washington in the past week. And hints of their bubbling to the surface have been evident in two notable events reported in the political press on Thursday.
First, Politico reported that the president has felt compelled to make it clear that his cabinet secretaries don’t answer to Elon Musk:
President Donald Trump convened his Cabinet in person on Thursday to deliver a message: You’re in charge of your departments, not Elon Musk.
According to two administration officials, Trump told top members of his administration that Musk was empowered to make recommendations to the departments but not to issue unilateral decisions on staffing and policy. Musk was also in the room.
But even more significant is an attempt by Senate Republicans to drive a wedge between Musk and the portion of Trump’s advisers who are intent on forcing a titanic battle over a presidential impoundment power.
That group, led most prominently by OMB director Russ Vought, argues that the president should have the power to decline to spend money Congress has appropriated if in his judgment it isn’t necessary or desirable. Presidents engaged in such impoundment occasionally throughout American history, often placing appropriated money in reserve funds when the congressionally authorized purpose could be achieved at a lower cost than Congress expected. But when Richard Nixon started to use impoundment more aggressively for policy ends — to refrain from taking steps he disagreed with even though they were required by laws Congress had passed — Congress took action to constrain the president’s power to impound.
As part of a broader reform of the budget process, they enacted the Congressional Budget and Impoundment Control Act of 1974. That law limited the range of circumstances in which the president could put appropriated money in reserve funds, but it also created a mechanism by which the president could ask Congress to reconsider its appropriations to lower spending levels when spending they had enacted was no longer necessary. So it limited what the president could do without congressional authorization, but it created a specific path for him to request and receive such authorization. Under that law, the president can submit specific rescission requests to Congress, and Congress can pass those by a process that is exempt from the Senate filibuster.
Some of Trump’s advisers don’t think that’s sufficient. They want to elevate the executive above Congress in our constitutional system, even when it comes to the power the purse. And rather than use the Impoundment Control Act process to try to trim spending, they want to force a fight over the constitutionality of the law, hoping the Supreme Court will eliminate that constraint on presidential power and give Trump and future presidents more freedom to ignore congressional appropriations. It’s a strange fight to seek when your party controls the presidency and both houses of Congress, and it’s a fight the administration is likely to lose if it comes. But some on Trump’s team want it, and they have seen in Elon Musk’s effort to highlight federal spending excesses an opportunity to tee up the conflict.
On Wednesday, Musk came to Capitol Hill to meet with Senate Republicans. His goal, as David Lerman of Roll Call put it, was “to soothe concerns over how some of the cuts have been implemented.” But Senate Republicans had a different idea. Led by Graham and Rand Paul, they gave Musk a tutorial on the Impoundment Control Act and the potential for formal rescission packages. And he apparently needed one. According to NBC News:
Multiple senators said Musk was surprised to learn there was a viable legislative pathway to making DOGE’s cuts [permanent]. Sen. Lindsey Graham, R-S.C., said Musk was “so happy” when he heard the news, telling reporters that Musk pumped his fists and danced.
This isn’t the first time Musk has learned some of the basics of American government in real time in the course of his work on DOGE. We have been able to witness him getting an education (and sometimes a miseducation) in budget policy, and have seen him become something of a 2011-era Tea Party libertarian live on X in recent months. I suspect at some point we’ll also get to witness him realizing that real fiscal change would require entitlement reform.
But for the time being, this latest example of Musk’s budget-process education is clearly part of a congressional Republican strategy to avoid a showdown over impoundment. As Senator Paul put it:
To me, it’s ephemeral now. I love all the stuff they’re doing, but we got to vote on it. So my message to Elon was let’s get over the impoundment idea, and let’s send it back as a rescission package. Because then what we have to do is lobby to get to 51 senators or 50 senators to cut the spending.
Graham pressed the same point:
“It’s time for the White House now to go on offense. We’re losing altitude. You know, we started off straight good,” Graham said. “We need to get back in the game on offense. And the way you can regain altitude is to take the work product, get away from the personalities and the drama, take the work product and vote on it.”
This is good to see. It’s evidence of Congress insisting on its prerogatives and demanding to play its proper role and exercise its power of the purse. And it’s also a much more plausible way to see some modest good come out of all the sound and fury surrounding DOGE now. Musk is trimming at the margins, but even if what he is doing won’t amount to massive cuts on the scale of the federal budget, substantive spending cuts matter. Trimming can be all to the good. But it has to be pursued through legislation.
Trump’s advisers know about rescission, of course. They don’t need the tutorial Musk got. They even advanced a rescission package in 2018. But that package was not well coordinated with Congress, and it didn’t get 50 votes in the Senate. That’s what has to change this time.
The Impoundment Control Act doesn’t make it impossible to pare back appropriations. On the contrary, it created a specific process for doing so. Using that law, rather than breaking it in order to facilitate a deformation of the Constitution, is the way to advance the modest discretionary spending cuts Republicans want. Let’s hope Congress can get that point across not only to Musk but to the president, too.