Dan Bishop, the president’s nominee for deputy director of the White House Office of Management and Budget (OMB), told lawmakers today he takes issue with the constitutionality of the Impoundment Control Act of 1974 and will join in lockstep with OMB Director Russell Vought to push back against the law.
The Impoundment Control Act (ICA) restricts a president from cutting Federal funding without the approval of Congress. Under the law, the president can sometimes delay or withhold funding – not cancel it – but it requires that the president notify Congress before doing so.
The law has gained increased attention in recent weeks after President Donald Trump attempted to freeze Federal grant funding without notifying Congress.
OMB quickly rescinded the memo in a series of legal maneuvers, and a Federal judge is still weighing the legality of the freeze.
Notably, the Supreme Court on Wednesday reinstated a lower-court order for the Trump administration to release frozen foreign aid, according to reporting from the Associated Press.
This action leaves in place the temporary restraining order that paused the funding freeze, but U.S. District Judge Amir Ali is holding a hearing on Thursday to reexamine the pause.
During today’s hearing before the Senate Budget Committee, Bishop explained that while he won’t be making “legal determinations for OMB,” he believes the ICA needs to be reexamined.
“There may be issues about the Impoundment Control Act and its constitutionality, and what exactly the contours are of the historic power to impound,” Bishop told lawmakers. “President Trump’s made clear that’s going to be looked at. So, that’s part of, I think, in answer to the question, ‘What do I hope to do?’”
If confirmed, Bishop said he will “join” with Director Vought’s view that it’s “an unconstitutional law.” During Vought’s confirmation hearing, he also told members of Congress that he does not believe the Impoundment Control Act is constitutional.
Bishop explained that “there was history in the United States before the 1974 Impoundment Control Act,” when presidents would often impound funds. He noted former presidents – including Harry Truman, Ulysses S. Grant, and Thomas Jefferson – “exercised impoundment power.”
“When you dig in, it’s a compelling argument that there is power in the executive in the nature of impoundment,” the nominee said. “Exactly what its contours are, I don’t know. I won’t be deciding those things, but I support the president’s plan to use impoundment to get Federal government spending in line.”
Many Democratic lawmakers voiced concern over Bishop’s answers, including Ranking Member Jeff Merkley, D-Ore.
“I’m sorry to hear that with your training in the law, you’re inclined to simply say … ‘I’ll just follow whatever the president says.’ That concerns me because we need to have people of integrity who are willing to follow the law in key positions like this,” Sen. Merkley said.
“I hope when you go away from here, you’ll have a moment when you go, ‘Hmm, am I going to take an oath to President Trump or Russell Vought, or am I going to honor the Constitution?’ Because that is the challenge of you as a public servant, and in our republic, you take an oath to the Constitution, not to an individual,” he added.
“The law is not a suggestion, and a president is not a king,” Sen. Merkley concluded.
Given Bishop’s answers, Sen. Patty Murray, D-Wash., also said it’s clear to her he is “not going to follow [the law.]”
Coinciding with today’s hearing, the Government Accountability Office (GAO) published a blog post titled, “What is the Impoundment Control Act and What is GAO’s Role?”
In the blog post, GAO explains that the ICA was enacted by Congress in 1974 in response to former President Richard Nixon’s refusal to spend certain Federal funds.
Since then, there have been 243 instances when a president has exercised impoundment. However, the difference is that these presidents all notified Congress through what is known as a “special message,” which must contain information such as “the reason for the impoundment along with the estimated fiscal, economic, and budgetary effects.”
“In general, when Congress approves funds, Federal agencies are required to spend it. The president cannot legally withhold funds unless he follows ICA procedures,” the blog post says. “For example, the president may not simply refuse to spend funds because he disagrees with Congress’s policy choices without sending a special message.”
The blog post adds that the ICA authorizes the head of GAO, known as the comptroller general, to file a lawsuit if the president illegally impounds funds.
Last week, Comptroller General Gene Dodaro told lawmakers that his agency is preparing to potentially take President Trump to court over the Impoundment Control Act.
“We’ve already sent letters to the administration asking them to explain their legal position to us, and we will be making rulings as to whether or not these issues violated the Impoundment Control Act or not,” Dodaro said during a Feb. 25 hearing before the House Oversight and Reform Committee.
“We need to be careful and thorough because the next step for us is to go to court ourselves,” Dodaro added. “When I go there, I want to win.”
