How Congress Would Consider a Rescission Request

The Trump Administration has taken numerous actions to prevent appropriated funds from being spent. This violates authorizing statutes as well as many appropriations statutes. This also violates the Impoundment Control Act of 1974. Key Administration officials have made highly dubious arguments that the Impoundment Control Act is unconstitutional — which, even if true, would not avoid the illegality of their actions under authorizing and appropriations acts.

Despite some Administration officials arguing that they do not need to ask Congress to approve funding cuts, some recent media accounts suggest that the Administration may use the process established by the Impoundment Control Act to gain congressional approval for its funding cuts.

Here’s how that might work.

Congress enacted the Impoundment Control Act to replace President Nixon’s unilateral impoundment of appropriated funds with an efficient method by which the President could seek congressional approval to withhold spending. On the one hand, the Act continued to prohibit impoundments without congressional permission, which the courts had already ruled unlawful. (The Supreme Court subsequently affirmed these rulings unanimously.) On the other hand, it assured the President an expedited decision on any request to rescind appropriated funds.

Section 1017 of the Act (2 U.S.C. § 688) sets out a special set of procedures for weighing resolutions approving presidential requests to rescind funds. Like the procedures for considering budget resolutions, budget reconciliation legislation, resolutions rejecting regulations under the Congressional Review Act, and resolutions rejecting recommendations of military base closure commissions, these procedures are carefully crafted to preclude delaying tactics, including the Senate filibuster.

The President may consolidate several proposed rescissions into a single request or split them up. Similarly, members of Congress may introduce resolutions to endorse all or only some of the President’s proposed rescissions. A resolution may be amended to add or delete some of the President’s proposals but may not include anything else (such as new funding, rescissions not requested by the President, or changes in programs’ rules).

If the House or Senate appropriations committee fails to report a resolution enacting a proposed rescission under the Act within 25 calendar days when the chamber is in session, supporters may file a motion to discharge the committee and bring the resolution to the floor. This motion must be considered on the floor without delay and with only a single hour of debate. Once a resolution endorsing a proposed rescission is on the floor, it may be called up at any time. Debate is limited to two hours in the House and ten hours in the Senate.

Many parliamentary maneuvers commonly employed for delay are either prohibited or required to be resolved immediately, without debate. If the House and Senate pass different resolutions that a conference committee must reconcile, each chamber must take up the conference committee’s agreement promptly after its submission.

If Congress fails to agree to a resolution approving a rescission within 45 days of continuous session after the President proposed it, the rescission is deemed to have been rejected, and the President must obligate and spend the funds in question. The process, however, makes it unlikely that consideration will reach 45 days if majorities of each chamber support the rescissions. If Congress fails to approve a particular rescission request, the President may not propose to rescind the same funds again.

Some news accounts suggest that the Administration is also considering “canceling” some funds that Congress has appropriated. “Cancellation” is not a process set out in statute. The Office of Management and Budget, however, has applied this term to requests a President sends to Congress to reduce or eliminate an appropriation without going through the Impoundment Control Act. This process offers no real advantages to the Administration because it lacks the Act’s requirements for accelerated consideration. In addition, if the President does not invoke the Impoundment Control Act, the relevant agency must continue to obligate and spend the appropriated funds while Congress considers the request.

Vice President Vance and other officials have complained that the Impoundment Control Act prevents the Administration from making more economical purchases of goods and services than appropriators had expected. This is not correct. If the Administration can fully achieve Congress’s objectives by spending less money, it is free to do so.

Many programs, however, have purposes that cannot be fully achieved even by spending the full amount appropriated. For example, the meritorious proposals for disease research almost always exceed the funds available to support them; the more rangers a national park has, the safer and more rewarding visitors’ experiences will be; the more claims representatives the Social Security Administration has, the faster it can process claims for benefits. In these cases, any economies that the Administration may achieve must be re-invested in strengthening the program unless the President submits, and Congress approves, a proposed rescission.