Congress is about to come to a fork in the road over government spending. To borrow Yogi Berra’s infamous phrase, they’re likely to take it.
The rescissions package the Trump administration recently delivered to Congress should provide an opportunity to begin to reduce the continued, disastrous growth of the federal budget. However, it may instead only reinforce Congress’s spinelessness. That would worsen the damage to the federal budget, the American economy, and ultimately our system of government.
How the Process Should Work
The rescissions process laid out in the Budget and Impoundment Control Act of 1974 provides lawmakers the opportunity to reduce spending on an expedited basis. Following formal submission of a rescissions package, the president can withhold funds for 45 days (excluding any days in recess), during which time Congress can consider the legislation.
Because the legislation is considered privileged in the Senate, passage is not subject to a filibuster. As a result, enacting the Trump administration rescissions package could occur with 218 Republican votes in the House and 51 Republican votes in the Senate — at least in theory.
However, Senate Appropriations Chair Susan Collins, R-Maine, said shortly after the administration released its proposal that “I do not support the rescission for PEPFAR [the President’s Emergency Plan for AIDS Relief] and global health programs.” Other lawmakers such as Rep. Don Bacon, R-Nebraska, and Mike Simpson, R-Idaho, have expressed reservations about reducing funding to leftist media, notwithstanding the 87-0 ratio of Democrats to Republicans in editorial positions at National Public Radio headquarters in Washington.
Those types of reservations, coupled with the narrow Republican majorities in the House and Senate, could mean that the roughly $9 billion rescissions package does not pass, or gets significantly scaled back. As it is, the $9 billion proposed reduction amounts to only 0.13 percent of all federal spending in the current fiscal year. Lawmakers rejected rescissions packages proposed by the first Trump administration.
What Could Happen Instead
A recent paper released by the Center for Renewing America regarding “pocket rescissions” provides an alternative pathway should Congress balk at passing one, or multiple, rescissions packages. (Disclosure: I have previously done work for the Center; however, I had no involvement with this particular paper, and did not know about it until its release.)
A “pocket rescission” would occur towards the end of the fiscal year, within the 45-day window Congress has to consider rescissions legislation following a presidential submission. The term “pocket rescission” derives from a “pocket veto,” when a president or governor allows legislation to die at the very end of a legislative session.
By submitting a rescissions request in, say, late August, the president can retain the funds through the end of the fiscal year on September 30 — at which point the funding authority expires. The paper points to an example from 1975, when the Ford administration withheld $10 million in funding that subsequently lapsed at the end of the fiscal year.
I can sympathize with those who, frustrated with Congress’ fecklessness (and worse) about spending, are willing to deploy an obscure strategy to try and bring about some fiscal restraint. That said, the strategy has potential pitfalls.
Courts could strike down a “pocket rescission” package — which would almost certainly receive a legal challenge — as violating Congress’ “power of the purse.” The paper quotes from a Government Accountability Office (GAO) opinion criticizing the 1975 “pocket rescission,” and correctly notes that Congress never took up GAO’s recommendation to amend the ICA to close this legal loophole. But the Supreme Court, in its “major questions” doctrine, has held that Congress must speak explicitly on major policy concerns, and may not agree that lawmakers can effectively abdicate their role in spending taxpayer funds.
Democrats could ultimately use this strategy against conservatives whenever they regain the White House. The left may not be able to “Abolish ICE,” but they could effectively defund Immigration and Customs Enforcement via a large “pocket rescission” — or act in a similar manner towards military programs, or other conservative priorities.
Alternatively, Democrats could attempt to convert the entire discretionary budget — consisting of things like the National Park Service, federal education funding, and other similar programs — into mandatory funds on auto-pilot (such as Medicare and Social Security), in an attempt to force future presidents to spend money. So this strategy is not without legal peril and may end up leaving conservatives worse off than at present.
Lawmakers Don’t Want to Make Laws
That said, the past few days have demonstrated how eager U.S. lawmakers are to abdicate their constitutional responsibilities entirely. House leaders — or, should I say, “leaders” — have reportedly welcomed the release of the “pocket rescission” paper, because it gave them a roadmap to lower federal spending without lawmakers having to vote on spending reductions. You know, the thing that taxpayers pay them to do.
The whole episode makes Nancy Pelosi’s “we have to pass the bill so that you can find out what’s in it” seem trivial by comparison. It also illustrates how Congress has transformed into an episode of The Simpsons, where lawmakers’ posture on reducing spending amounts to “Can’t Someone Else Do It?”
In that sense, the “pocket rescission” strategy would not only constitute a major change in the relationship between the executive and legislative branches. It also would let lawmakers “off the hook” and absolve them for their role in creating an unsustainable federal budget — an absolution they do not deserve.