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priorities when they diverged from Congress’. However, most of these impoundments were small (i.e., no more than a few percent of the total program budget) or temporary (i.e., funds were released in time for them to be spent before the end of the fiscal year) and rooted in policy, rather than political interests of the President. It was not until President Nixon that presidential impoundment of funds would prompt Congress to take action citing constitutional concerns.³⁶⁵

Unlike his predecessors, Nixon undertook impoundments that were both substantial and, in some cases, permanent, which raised concerns for Congress over its Article I powers. In fact, between 1969 and 1972, Nixon impounded between 15% and 20% of Congressionally-appropriated funds in various accounts.³⁶⁶

To reassert Congressional authority over the budget, in 1973, Congress established the Joint Study Committee on Budget Control, which held a series of hearings and produced more than 4,600 pages of testimony and reports. The Joint Study Committee’s findings ultimately led to the overwhelmingly bipartisan passage—over President Nixon’s veto—of the Impoundment Control Act of 1974, one of a series of reform bills designed to reign in presidential power. Looking back at that moment in history, Rep. Bill Archer (R-TX), a fiscal conservative who served 30 years in the House of Representatives, including as the Chairman of the Ways and Means Committee, remarked, “the culture then was that the president had too much power…the president is abusing his power.”³⁶⁷

In addition to establishing the Congressional Budget Committees and the independent Congressional Budget Office, the Impoundment Control Act also limits the circumstances under which a president can legally impound Congressionally-appropriated funds. According to the Act, although the President may request authority from Congress to withhold or permanently cancel the availability of budget authority, such an action is not allowed without Congressional approval. Any amount of budget authority proposed to be deferred (i.e., temporarily withheld) or rescinded (i.e., permanently withheld) must be made available for obligation unless Congress, within 45 legislative days, completes action on a bill rescinding all or part of the amount proposed for rescission.³⁶⁸ The Impoundment Control Act does not permit the withholding of funds through their date of expiration, which would be a de facto rescission without Congressional approval.³⁶⁹

At the July 26 interagency meeting, senior agency officials raised serious concerns about the legality of the hold under the Impoundment Control Act. Ms. Cooper testified:

A: Well, I’m not an expert on the law, but in that meeting immediately deputies began to raise concerns about how this could be done in a legal fashion because there was broad understanding in the meeting that the funding—the State Department funding related to an earmark for Ukraine and that the DOD funding was specific to Ukraine security assistance. So the comments in the room at the deputies’ level reflected a sense that there was not an understanding of how this could legally play out. And at that meeting the deputies agreed to look into the legalities and to look at what was possible.

Q: Okay. So is it fair to say the deputies thought the President was not authorized to place a hold on these funds?

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