Does DOGE Have an Impoundment Problem?

Must the Executive Spend Legislatively Allocated Funds?

Okay, maybe this potentially very important question is too technical for you and the rest of the American public. Maybe folks just want to roll with things as they currently stand, whichever side you may be on. But I’ve been surprised at not seeing this question addressed, at least not in my several news feeds. So, here goes with a high-level, off-the-cuff analysis, not the sort I’d make for a government client but just to get us thinking.

The $36 Trillion Issue

Full disclosure: I’m with those of you who are scared out of their wits at the federal debt’s runaway ballooning to $36 trillion, approaching the fiscal madness exhibited only in, what, Venezuela, Greece, and Italy? Maybe I shouldn’t be so concerned. Japan’s debt also exceeds U.S. debt as a percentage of (actually, a multiple of) GDP. But U.S. leaders, if that’s what we can still call them when saboteurs somehow seems more fitting on this subject, quadrupling federal debt since around 2009 still seems like jumping off a cliff while gleefully counting one’s money on the way down. Interest payments on the debt this year are nearly a trillion dollars. If you don’t think that’s a problem, then stop reading and, what, go back to watching reality television?

The DOGE Solution

Of course, everyone’s heard of the planned new Department of Government Efficiency solution. Credit to Musk, Ramaswamy, and President Trump. It’s a solution that seemed to come out of nowhere, throwing open the Overton window so quickly as to make the head snap back. Cutting half the federal budget? Two thirds?! Three quarters?!! Just yesterday, it seemed like cutting anything, even one percent of the budget, was an impossibility. We’ll see how things go. My estimation is that we’re still in the election-euphoria or election-despair stage, before things get very real and very practical, very quickly. Some cutting certainly seems wise. Dramatic cutting may be wise, too. If DOGE did a fraction of what its proponents advocate for it to do, it might be the turning back from looming fiscal disaster, an escape that seemed unlikely or impossible just a few weeks ago.

The Impoundment Problem

As a lawyer, emeritus law professor, and citizen interested in good governance and the rule of law, though, I’m interested in how DOGE will navigate the impoundment problem. If you hadn’t heard of the impoundment issue, here’s a primer. Constitutionally, as a basic matter of the structure of government, the Legislative Branch allocates funds, and the Executive Branch spends them. That’s it. The president can’t buy another miracle weapons system or pay for another billion vaccines without Congress giving the president the money. Yet presidents have, at times, slow-rolled the allocated expenditures, especially when disagreeing with them. When presidents do so too obviously, in a political test of wills with Congress, the ones wanting the money spent will call the president’s non-expenditure an unconstitutional impoundment to complain about it.

Not Many Answers

Usually, in a significant test of political power between the branches of government, the Supreme Court will weigh in to resolve the relative rights, responsibilities, and obligations of the competing branches. Since 1803’s Marbury v Madison establishing the principle of judicial review, that’s been the Court’s role, to act as an arbiter of constitutionality. But the Supreme Court also takes care not to intervene on a political question, meaning one best left to the public and private advocacy, negotiation, compromises, and other horse-trading of the Legislative and Executive Branches, as the two clearly political branches. Whether out of circumspection not to entangle itself in a political question or for lack of a clear case on which to decide, the Supreme Court has left the modern impoundment question mostly untouched. We have no clear answers.

A Hint from the Distant Past

In 1838, the Supreme Court did decide a small impoundment case in United States v Kendall, giving limited arguable contemporary guidance. The case was small because it involved Congress directing that the U.S. postmaster pay a mail contractor in a specific dispute. The U.S. postmaster refused, saying he worked for the president, not Congress. While he was right, the Supreme Court noted that Congress’s legislation had mandated the contractor’s payment, with which the postmaster had to abide. The rule that some might draw from this antiquated and narrow precedent is that the president must disburse funds when Congress expressly mandates so. Otherwise, the president may have authority to choose more efficient means for carrying out the other laws Congress enacts, beyond its spending power. It’s not a perfect rule, nor a perfectly clear rule, but it may be something.

A Test from the Near Past

The Nixon years presented a modern impoundment test, just as the Nixon years presented other modern tests, given the Vietnam War, counter-cultural revolution, oil embargo, and other roiling times and events, of which Nixon’s Watergate resignation proved the pinnacle (meaning the depths but preferring the alliteration). President Nixon used impoundment more often and openly than prior presidents. He generally did so, though, on the limited rationale that he was faithfully executing all the laws, necessarily balancing some statutory obligations against others in their concomitant or conflicting execution. After all, the Constitution’s Take Care clause, stating that the president “shall take Care that the Laws be faithfully executed,” gave him that responsibility. But does taking care mean impounding and refusing to spend funds, or does it mean spending allocated funds appropriately? It’s not a perfect rationale.

Political Solutions in the Offing?

The Supreme Court’s reluctance to opine may be the better route in any case. Can’t you see a lot of political horse-trading going on around DOGE initiatives? President Trump has slim majorities in both houses of Congress. But holding those majorities to support DOGE actions will, if necessary, likely require some intra-party trading of its own. See the skirmishes over the president’s cabinet nominations. And some trading with the opposition party may also be necessary or appropriate, depending on what objections the opposition party raises or leverage it wields over other initiatives of presidential interest.

DOGE Strategies

What approach should DOGE officials take to maximize their authority to accomplish their mission within constitutional bounds? One, follow the United States v Kendall rule, spending monies Congress has clearly mandated that the executive spend, on specific obligations. DOGE might, for instance, working with the Pentagon cancel an expensive and already-outdated weapons system. But DOGE should pay defense contractor already having completed weapons work. Follow the contract terms as to remaining obligations under executory contracts, depending on what those terms provide for contract cancellation. Negotiate termination deals where possible. Two, handle layoffs either voluntarily with severance offers or unit-wide with program sunsetting that doesn’t target individuals. Employment laws, including civil service rules and labor agreements, give greater latitude for reductions in force than individual firings. So, do the little things that you must, do as much as you can voluntarily, and do things big and blunt if you must.

What to Expect

The whole DOGE initiative is like one big test in constitutional government, management, leadership, and public relations. And we only have the nation’s fiscal future riding on it, it looks like to many of us. Predictions are a fool’s errand. Who knows what’s about to happen with the whole, fascinating, and important DOGE affair? But my guess is that we’ll soon see a very complex unfolding landscape of multiple strategies and tactics like the above, as DOGE necessarily splinters its efforts to meet multiple contingencies. It might not be all that interesting in the details. But the larger trends and movements may be hugely important not only to the nation’s finances but also to trust and confidence in the operation of constitutional government. Let’s not call it a looming constitutional crisis. But let’s watch with interest how it all works.