|
 |
This afternoon, a three-judge panel in the D.C. Circuit signed off on the Trump administration’s efforts to block funds for foreign assistance that have been appropriated by Congress. Despite arguments made by the plaintiffs that this violates Congress’ Article II Spending powers, the court ruled that only the head of the Government Accountability Office (GAO) has the ability to bring Impoundment Control Act (ICA) claims. Impoundment refers to a decision by a president to delay spending or withhold funds that Congress has allocated in the budget. The GAO was not a party to this lawsuit, although it has made multiple findings that this administration has violated the ICA in other regards.
The court’s decision was 2-1, with Judges Karen Henderson and Gregory Katsas in the majority and Judge Florence Pan dissenting. As Judge Pan notes in dissent, they reframed the issues argued by the government in order to rule in its favor, so that they could “excuse the government’s forfeiture of what they perceive to be a key argument, and then rule in the President’s favor on that ground, thus departing from procedural norms that are designed to safeguard the court’s impartiality and independence.” There will likely be a motion to ask the full court to rehear the case en banc, with all active judges sitting, before the losing party takes it to the Supreme Court.
 |
The case arose after Trump impounded funds appropriated by Congress for foreign aid in 2024. On January 20, 2025, Trump issued an executive order directing the State Department and U.S. Agency for International Development to freeze foreign aid spending. Multiple plaintiffs sued to force the administration to release the funds. After the district court issued a preliminary injunction that prevented the government from refusing to fund the programs Congress had voted for, the administration appealed, and the court of appeals heard the case on an expedited basis.
The Constitution gives Congress the authority to raise revenue and decide how money is spent—the power of the purse—in Article I, Section 8, which permits Congress to tax and spend for the general welfare, and in Article I, Section 9, which provides that “No money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law.” The executive branch can’t legally spend public money without Congressional authorization. This means Congress can prevent a president from doing things it doesn’t approve of by refusing to fund them. But this case involves a different situation—what happens when Congress funds a program, but the president refuses to release the funds? The Impoundment Control Act was passed in 1974 to reinforce Congress’s spending authority after President Nixon tried to withhold appropriated funds.
Nixon wasn’t the first to try and thwart Congressional spending decisions. Thomas Jefferson delayed spending on naval ships out of concern over costs. But Nixon used impoundment aggressively over policy disagreements with the Congress. In the early 1970s, he withheld billions of dollars from environmental programs and housing and education initiatives. Congress viewed Nixon’s broad use of impoundment as an end run around its constitutional powers, arguing that if he could simply refuse to spend, a president could appropriate a line item veto over the budget for himself, in contravention of Congress’ power of the purse. Lawsuits were filed.
This fight happened on the same timeline as Watergate. With trust in the presidency at low ebb, Congress reasserted its authority in multiple areas and the impoundment battle became part of an effort to rein in executive branch abuses of power. Congress passed the ICA on a bipartisan basis, with the House voting 386-23 for passage and the Senate joining in with a unanimous 80-0 vote. The Act requires congressional approval if a president permanently cancels appropriated funding (Congress has 45 days to act after a president provides notice. If they do nothing, the funds must be released). While presidents can defer spending, any delays can’t extend beyond the fiscal year and Congress can override deferrals it disagrees with. The law requires presidents to make formal notifications to Congress of any activity along these lines. The ICA closed the loophole that allowed presidents to seize the power of the purse and it authorizes the comptroller general, the head of the Government Accountability Office (GAO) to file a lawsuit if the president illegally impounds funds.
The panel decision holds that only the comptroller general can bring the type of lawsuit authorized by the Impoundment Act. The comptroller general of the United States is the head of the GAO and serves as Congress’s chief watchdog over federal spending and performance. The role is nonpartisan and is designed to be independent from the executive branch, so the comptroller general can audit, investigate, and report without political interference.
The comptroller’s responsibilities include auditing and evaluating federal programs by conducting financial audits of federal agencies to ensure public funds are spent properly. He reports to Congress on government programs, spending, and policy issues. If members request it, he can investigate agency actions for compliance with federal law and offer “quick response” legal decisions on the legality of expenditures. Most importantly for our purposes, the comptroller can issue legal opinions on disputes over the use of federal funds—for example, whether an agency violated the Impoundment Control Act or the Antideficiency Act, and has the ability to take violators to court.
The comptroller serves a 15-year term and cannot be reappointed to serve again. His independence stems from the fact that he can only be removed by Congress, for cause, in order to insulate the position from short-term political pressure. It’s one of the few positions in government that offers the access and the independence that are necessary to scrutinize government operations on behalf of the public.
The current comptroller, Gene L. Dodaro, has served since his confirmation by the Senate on December 22, 2010, during the Obama administration. He has been with the GAO for more than 50 years and held a number of key executive posts before becoming the comptroller, including chief operating officer. He led the development of GAO's strategic plans for serving Congress and improving government in the 21st Century.
When leaving office, the exiting comptroller appoints an acting official to serve until the next comptroller is decided upon. Dodaro began as the acting comptroller general in March of 2008. His 15-year term in office will expire this December, and the decision in Global Health Council v. Trump will make the selection of a new person for the role a more prominent one than it has been in the past.
The Comptroller General is nominated by the President from a list of three candidates recommended by a bipartisan congressional commission, consisting of the Speaker of the House, House minority leader, Senate majority and minority leaders, and the chairs and ranking members of certain committees. The president selects from that list and the Senate must confirm the nominee before he can take office. Despite this process for appointments, the GAO is a legislative branch agency, so the comptroller general is not an executive branch employee and is supposed to be independent from political influence.
Although the comptroller has the power to sue, that has only happened once. In 1975, Comptroller General Elmer B. Staats sued President Gerald Ford over the impoundment of funds for subsidized housing. Ford released the funds, and the case was dismissed. But the comptroller’s oversight work is ongoing and robust. In February, Dodaro told lawmakers that GAO could take Trump to court over violations of the ICA. At a February 25 hearing before the House Oversight and Reform Committee, Dodaro testified: “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.”
He also explained what it took for the comptroller general to bring a lawsuit: “We need to be careful and thorough because the next step for us is to go to court ourselves.” Dodaro went on to say, “Under the Impoundment Control Act, if we say there’s an impoundment – the money’s not released within a certain period of time – we have to go to court. I need to be prepared and be careful because when I go there, I want to win.”
Godspeed Mr. Comptroller General. The appeal of this matter could go on for years, and there is little chance of predicting where the Supreme Court might ultimately come out. In her dissent, Judge Pan concluded, “At bottom, the court’s acquiescence in and facilitation of the Executive’s unlawful behavior derails the ‘carefully crafted system of checked and balanced power’ that serves as the ‘greatest security against tyranny — the accumulation of excessive authority in a single Branch.’ … ‘It is no overstatement to say that our constitutional system of separation of powers [will] be significantly altered’ because the court ‘allow[s] [the Executive Branch] to disregard federal law in the manner asserted in this case[.]’”
The time for the comptroller to sue is now.
If you value clear, detailed analysis that makes complicated court decisions like this one understandable, subscribe to Civil Discourse and never miss important developments. A free subscription ensures you have access to reliable, in-depth information when it matters most. If you’re in a position to do so, consider a paid subscription to help keep this work available for everyone.
We’re in this together,
Joyce