Since well before Donald Trump first became President, Congress and the President have had great difficulties reaching agreement on spending levels and allocations.  Single appropriations bills sometimes are enacted, but almost every year in recent memory, Congress has had to resort to short term continuing resolutions, not just one at the beginning of a fiscal year, but, as in the year that just concluded, three of them.  Despite their labels, continuing resolutions do not simply continue the spending from the prior year, but make numerous adjustments, up and down, as well as adding new spending.  In the end, agreement is usually reached, often grudgingly, and the federal government moves on.

But this year, Congress could not reach agreement, even for the short term, and so we are now in a federal government shutdown, albeit with exceptions for “essential” personnel and services.  The stated reason why the Democrats would not go along was health care: the massive cuts to Medicaid and the support payments for participants in the Affordable Care Act programs.  However, even if the Republicans agreed to restore some of those funds, there is a more significant problem that the Democrats face―President Trump’s widespread use of impoundments so that a deal over health care, or anything else, will not be a deal after all.

The Republicans control both Houses of Congress by narrow margins, but the Senate rules allow filibusters for appropriation measures, including continuing resolutions, which means that a significant number of Senate Democrats must support some form of a CR in order to end the current shutdown.  Here is why all of the Democrats should be very resistant to the “clean” CR that the President and his allies in Congress are pushing.

In the past, once a spending deal was struck, however unpleasant, both sides would abide by it, but that is no longer the case. Or at least the Democrats and their supporters see it that way.  The reason is the massive impoundments that Donald Trump has made and will certainly continue to make as long as the courts or Congress do not stop him.

The theory behind the use of impoundments is that the President has the authority to refuse to spend appropriated funds, even when Congress has not provided him that discretion.  Richard Nixon sought to impound a variety of funds that he thought were wasteful or did not fit his administration’s priorities, but he lost most of the cases that challenged his impoundments.  More significantly, Congress, including members of both parties, asserted their powers over the federal purse and enacted the Impoundment Control Act of 1974.  Its message is loud and clear: if the President wants to reduce or eliminate spending, he must tell Congress what he wants to do and why, and he can only refuse to spend if Congress says so within 45 days―which means passing a new law amending the existing spending provision.  However, in an effort to be fair to the President, the ICA contains special provisions (2 U.S.C. § 688) that eliminate the barriers to getting a vote on a rescission bill, including the filibuster.

Post-ICA Presidents have generally abided by the ICA, and when they have sought rescissions, they have followed the ICA. But not Donald Trump, who has tried three different ways to cut back congressionally approved spending.  First, from the time he was sworn in, he has directed his subordinates to place spending on hold in numerous programs that he considered wasteful or inconsistent with his priorities.  In addition to programmatic cuts, he fired thousands of employees. This not only “saved” money for their salaries and benefits; the reductions in staff also made fully carrying out their agencies’ programs impossible, which included making grants, assuring that seniors received their Social Security benefits, and collecting the taxes owed to Uncle Sam. 

Numerous lawsuits have been brought, some successful, but there are simply not enough lawyers or federal judges to reverse these impoundments, even if the plaintiffs could overcome the many procedural objections made by the Trump Administration.  This impoundment method has been successful for another reason.  Although the ICA is very clear that the President is required to inform Congress of all proposed impoundments immediately, this administration has simply impounded the funds and never told Congress at all, thereby compounding the difficulty of bringing suit to stop them.

Second, Congress is no longer protecting its authority over appropriated funds.  In the one instance that the President did make a timely rescission request, Congress simply approved what he wanted.  That was made possible by the exceptions to the normal rules for considering legislation,  including the filibuster, which prevented the Democrats from stopping the measure.

Third, the President has taken the position that if he sends Congress a rescission request with fewer than 45 days left before the funding expires on September 30,  he can refuse to spend the money because he has not violated the ICA.  On September 26, the Supreme Court gave him the green light (purportedly only temporary) to carry out these so-called “pocket rescissions” with respect to $4 billion in foreign aid that has now expired. 

The President’s greatly expanded use of impoundments has created a new dilemma for the Democrats. Even if they strike a deal on the CR, the President can undermine the agreement, as soon as the ink is dry, by impounding the funds that the Democrats insisted on to accept the cuts proposed by the Republicans.  In other words, there is no deal, and there can be none until the President’s impoundment weapons can be disarmed.

The best, but least likely, solution would be for congressional Republicans to stand up against the President on appropriations matters and make it clear that he cannot continue to impound money at the scale he has done for his first eight months in office.  There are spending items that he wants, and Congress should deny them to him unless he agrees that “a deal is a deal” and budget deals do not include the impoundments he has attempted this year.

Second, at least for this year, Congress should suspend the special rules for passing rescissions bills so that only truly exceptional ones will get through.

Third, Congress should amend the ICA to close any arguable pocket rescission loophole, by stating that the expiration of the 45 days without congressional action does not constitute approval of a rescission request.

Without these measures to combat rampant impoundments, the “art of the budget deal” will continue to be a one way arrangement wholly in the President’s favor.

Alan B. Morrison is an associate dean at the George Washington University Law School, where he teaches civil procedure and constitutional law.  He has extensive litigation experience with impoundments.