Thank you, all who tuned in to my live video with
’s Cerin Lindgrensavage!As Lindgrensavage, counsel at Protect Democracy, discussed, much more information — and data — about impoundment is available at Open OMB. You can also follow Protect Democracy’s work at their newsletter,
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Below, please find a lightly edited transcript, which starts at 1:10 in the video.
LAW DORK: Over the past month or so, Law Dork readers have been reading a lot about the most recent developments out of the DC Circuit, which is sort of a sign of where we're at with these impoundment cases, that they've gone from all being at the district court to actually getting orders and rulings out of appeals courts. And so, yeah, here we are today. I think we're at a good point to start this conversation. I was looking through what was going on when we got the original ruling on the appropriations website requirements and reached out to Protect Democracy because they had put together a really cool website to help people understand what appropriations are and what impoundment is, and reached out to folks that I knew at Protect Democracy about that, and got connected with Cerin Lindgrensavage, who we have with us today, from Protect Democracy to talk about what we're talking about when we talk about the power of the purse and impoundment. So first of all, just want to say thank you, Cerin, for joining us. And I know that everybody at Law Dork who was reading each of these developments as they happened certainly are going to appreciate a chance to sort of sit back and hear from one of the experts about what the heck is going on here. So, welcome.
CERIN LINDGRENSAVAGE: Thank you so much, Chris, for the welcome. So happy to be here. I've been reading your tweets on all these cases, and so it's wonderful to actually get to talk-talk with you. I think what's going on here — it's hard to imagine one conversation unpacking it, but we can take on the one slice that Protect Democracy has been incredibly focused on, which is the transparency piece — trying to undo the cover-up and give, frankly, you and everyone else the information they need to sort of take on these impoundment fights. What's happening is like a constitutional purse snatching. The Constitution gives the power of the purse to Congress, and the President is trying to steal it. And, he didn't make this a secret. He said before he was sworn in, that he was going to do this. His OMB director, in his confirmation hearings, before the 119th Congress, told them he was going to do this, and he is delivering on those threats now in really effective, disturbingly effective, ways.
One of the things that we worked with a lot of partners and members of Congress to do was to put a provision in place in the 2022 and 2023 Appropriations Acts. I know those are numbers so long ago. It's like, when did that even happen? Years ago, when we maybe saw something like this coming. We worked with and urged members of Congress to put in a requirement that says, "You, Office of Management and Budget, have to put apportionments online." Apportionments super unsexy thing, and everyone's probably like, "What's an apportionment? Why do I care?"
For a century, Congress had a really hard time getting agencies to stick to their budgets. So from like 1770s to 1870s, Congress is like, "No, really, seriously. Stop spending more money than we give you." In 1870, Congress finally is like, "Okay, fine, we're making a law against it. There's a law against it now. You can only spend the money we give you." And still, agencies sucked at that. Agencies were really bad at it. And in 1905, Congress is like, "Okay, we're gonna put you on an allowance. We're gonna give the president the responsibility of apportioning funds, which is giving you the funds a little bit at a time, because you've proven you cannot be trusted with getting all your money all at once. You come to Congress, hat in hand, months later, being like, "Please, can I have some more? Can I have what they call a deficiency appropriation?" And Congress got tired of those, so it's like, "Look, president's gonna put you on an allowance. He's gonna give you the money a little time. Maybe it's a week, maybe it's a month, maybe it's a quarter. Maybe, if you're really smart, you could have your funding a year at a time."
But, that's what apportionments are. It's the documents from the president that says how much money the agency can spend, under what period of time, and if there's any conditions. Lawyers are always saying, "Oh, hey, it's in the footnotes." I swear to god, this time it really is in the footnotes. The footnotes are legally enforceable under that scary 1870s-era law that's like, "No, really. We mean it. You can't spend it. You could go to jail if you spend money that we didn't give you." Those footnotes in apportionments are legally enforceable, so they mean something to agencies. So if you put something in the footnotes, the agency's like, "Oh, crap. It's in the footnotes," and they actually obey them. So say, if you're the president and you don't want money to go to Ukraine, you put that in the footnote, as they did, and the money doesn't go to Ukraine [uninteligible] becomes an impoundment. That becomes a problem. And so that's why the transparency law doesn't just say "you have to post the apportionments." It says, "You have to post the apportionments in a timely way two days after and you have to include the footnotes," because that's where people were concerned there were going to be abuses.
LAW DORK: When this law was passed, they started doing it, and I found in the most governmental way, they basically drop it as a zip file with, like, just 1000s of pages.
LINDGRENSAVAGE: Yeah, it's a bunch of really not very friendly documents. Our tech people said that it looks like an impolite set of words in website form. It was very unfriendly. There's a wonderful Princeton convening where, like, the first thing they say that needs to be done to sort of fix transparency in appropriations law and power of the purse is to make the website better. We've just built a different website that scrapes all the information and makes it searchable and browsable. It's called openomb.org. It also explains everything I just said badly about apportionments. There's a handy FAQ. There's a longer hour and a half — you can learn everything there is to know about apportionments and how to read them — training. Highly encourage you if you want to nerd out to look at it. But most importantly, you can find out where the money is by searching apportionments on that site. And you can just use keywords to do it. You can even search for the footnotes, all the places where they've hidden all those problematic requirements. You just say footnote search and look for them.
LAW DORK: And so we got into the Trump administration. They just stopped that. After it had been going with no problem, and you all sued, and this was a case where you actually won, including at the DC Circuit.
LINDGRENSAVAGE: We won an injunction in the District Court. The district court said, "No, you need to post this information." And the DC Circuit declined to stay the district court injunction pending appeal. So now we actually have updated data. So they stopped posting in March, and now they are once again posting. They've still noticed the appeal, so the case is still live, but we are now getting data, which is great.
LAW DORK: From my perspective, I appreciate that, both because I now get the data, but also because, so often in this moment, we're getting these questions about like, "Why does litigation matter? The Trump administration ignores the law, blah, blah, blah, blah, blah, all of these things." I have all these fights all the time, and I — when, when I saw this, this is just a perfect example of why it does matter, because the fact is that with these exceptions of — I mean, mainly these two instances involving the March 15 flights — that the administration, while fighting back, while appealing, while trying to claim that orders are narrower or or broader than they are, they generally are still following court orders when they get them. And this actually had a consequence, and it meant that we know what's going on again.
LINDGRENSAVAGE: Well, we certainly have more information than we did. I think there are still some questions about the information that we have, and we're still unpacking it, because there's definitely ways that this administration has asserted it has a power in the apportionment process that I think a lot of folks who are familiar with the law don't —
LAW DORK: — don't agree with.
LINDGRENSAVAGE: I would argue this administration has asserted that has the ability to impound funds. That's essentially what this pocket rescission that they've just proposed is. They've said that they can unilaterally cancel funds, and I certainly think that that's unconstitutional, to say the least.
LAW DORK: So you've got this transparency, and then behind that, you have this substantive effort in agency after agency, in places all over the government, where they're just stopping giving out funding and so, by the end of the fiscal year on September 30, would result in them having impounded funds.
LINDGRENSAVAGE: And I feel like, when you say impounded funds, sometimes that doesn't mean anything to people, but think about all the different things that you've heard about getting paused this year: libraries, schools, healthcare researchers that are developing like cures for diseases that affect us all. Those are the things that — impounded means that money doesn't get spent. It expires and you can never use it again. That's what it means. Any jobs that would have been created, or people that would have been helped from any of those programs that were supposed to get funding, that's not going to happen. That's what impoundment means. Yes, the principle is important, the rule of law is important. Like, the money is important.
LAW DORK: And that was Justice Jackson's point in her dissent in the NIH funding case, where, she was like, "This is people, this is labs, this is diseases, this is this is long term — that the tail of this is not September 30, the tail of this is decades." And I mean, what is this fight? What is the administration's argument that they have? I guess there's sort of two main strains: They have this impoundment right, and then what has sort of happened in the offing, as they were forced by court order into it, in one case, to actually issue a document that says that they're doing this pocket rescission. What does it mean when people are talking about that they're impounding funds.
LINDGRENSAVAGE: So the Constitution says that Congress has the power of the purse, that no money can be spent by the federal government, except is made under appropriations by law. So if you're going to spend money through the federal government, Congress — Congress first — has to pass a law that is signed by the President, and then the President has to actually implement the law. And this fight is about who actually has control over the money. And folks who read that power of the purse as being consequential say, "Okay, well, Congress. Congress has the authority, the responsibility, as the people that you elected to do the things for you to say, 'We're going to spend this money these ways.'"
And this administration has stood up and said, "Actually, we think the President, in his Article II capacity, in his Take Care authority to implement the laws, can take care of the spending that he wants to do and not take care of the spending he doesn't want to do. They are asserting that as a constitutional power of the president under his Article II authority, and I think that's a real misreading of the law, the Constitution, of the history of appropriations. While he was out in his think tank capacity between the Trump administrations — because OMB Director Russ Vought has had this job for the first Trump administration and this one. And he spent the time in the middle very clearly thinking about what he was going to do when he got his job back. And he spent a lot of that time putting forward a like a think tank argument that's that's now being explicated in DOJ papers in all of these cases that says "We have this power," asserting this power, trying to create a history around this power.
We spent a fair amount of time actually going point by point through the history of these examples, and saying, "Actually, no." In a lot of these cases, Congress gave some flexibility to presidents, and the presidents were exercising the flexibility that Congress gave them. And in other cases where Congress said, "No, you can't do that," presidents stopped. So like my favorite is — they use this example from President Grant, Ulysses Grant, he impounded some river and harbor funds. He was like, "You know, guys, this is turning into local projects for river dredging, and I'm kind of not on board with that." And Congress was like, "That's really not up to you." And the folks in the government keep citing this as an example of a president impounding funds without blowback from Congress. Congress stopped having this conversation with Ulysses Grant because he stopped being president. Rutherford B. Hayes was inaugurated in the middle of the fiscal year, and then Rutherford B. Hayes spent the money. So like, that's the level of misinformation. I know, deep historical cut. You didn't think you were going to get breaking news from the 18th Century.
LAW DORK: I love it!
LINDGRENSAVAGE: But this is the kind of argument that they're voicing is that because Grant did it, because Jefferson did it, because Washington did it, they're saying, "We get to assert this power now to go through the federal government as we please and say, 'You know, these libraries can have their money, but those museums can't because we don't agree with that program.' Or, 'These schools can have their money, but those English language learner programs can't because we don't agree with that program.'" That's not up to you. That's up to Congress. And if Congress hammers out a compromise and says, "The only way we can get the votes to make this law is to include some things that every single person cares about and likes, then you should spend all that money on all the things they got people to come together to make it a law."
LAW DORK: And that the the executive's power in that is to choose whether to veto it, not, once it's law, to just choose, "No, I'm not going to do that."
LINDGRENSAVAGE: Congress tried at one point to give that power, the line-item veto power to the President, and the Supreme Court said, "No, that's not how you make laws. The Constitution is quite clear. Congress passes it. The President signs it or doesn't sign it; those are the only options available to you." And the Supreme Court struck down the line-item veto. Under that same logic, you shouldn't be able to claim this power extra-legally that the Supreme Court said you couldn't have legally.
LAW DORK: So speaking of and this is what I think is sort of their version of, not the line-item veto, but their version of the pocket veto. There is this new argument that everybody learned as we went into the holiday weekend, which you obviously knew about beforehand: pocket rescission. When we got this — the DC Circuit essentially, under threat of en banc, they amended their opinion to essentially allow in the foreign-aid funding case, one APA challenge — an Administrative Procedure Act challenge — that could protect foreign aid funds before the end of the fiscal year, and literally the morning after the DC Circuit amended their opinion, we got this announcement that there was a pocket rescission of a bunch of those funds. What the heck is a pocket rescission?
LINDGRENSAVAGE: Can I just say a pocket rescission is just another name for an impoundment? Like, I will engage with it and explain it, because you deserve the explanation, but it's just an impoundment dressed up as something else. It's like squirrels or rats in cuter outfits. Rescission, another fancy lawyer impoundment word, rescission is just another way of saying — it's a request from the president to Congress to pass a new law canceling funds.
LAW DORK: But that's something real, and that is something we saw that with the public broadcast funding.
LINDGRENSAVAGE: And that happened earlier this year. So the impoundment Control Act gives presidents three options for what you do with money. You can spend it, you can ask Congress to delay spending it, or you can ask Congress to cancel the spending. And the last one, Congress has to pass a law to cancel the spending. Congress had to pass a law to give you the money to spend. Congress has to pass a new law to take the money away. And that's the foundation of the Impoundment Control Act.
And that's what happened earlier this year, is the President asked Congress to pass a new law canceling $9 billion of funds. And Congress said, "Okay, except for" — and then they took some cuts out of that package. And the cuts they said were okay happened in law, and the cuts they said weren't, weren't supposed to happen. And that's how the Impoundment Control Act set up the system to work.
What the administration has done is that they have delayed spending a whole bunch of money for various reasons, and now at the very last minute in the in the fiscal year, they have asserted that they want to cancel. So they've sent a rescissions request. Generally, what happens when you send this rescissions request — a special message, this request to cancel funds. You're understood under the law to be able to withhold it for 45 days, to allow Congress to consider it. Let's just say, the impoundment Control Act, it could have been written better. It could have been. Nothing in the Impoundment Control Act actually explicitly says that you can withhold the funds. This is just what presidents have done for 50 years. It's an understanding that if you're going to ask Congress to cancel it, you probably shouldn't actively be spending the money while they're thinking about whether or not they're going to say yes to you. But let's get back. Okay, generally, you're allowed to withhold it for 45 days. And what they've done is they've timed their proposal so late that the end of that 45-day period will run through the end of the fiscal year. So while that withholding is happening, the funds will expire at the end of the fiscal year. And so they've asserted that they have managed to find this sort of maneuver around the Impoundment Control Act, a special Get Out of Jail Free loophole that lets them impound a bunch of things — basically abusing this misreading of the statute.
LAW DORK: It's basically building twice on things that aren't in the law itself.
LINDGRENSAVAGE: Yeah.
LAW DORK: You're allowed to withhold them while you're asking, and then that somehow you can do that near the end, so that there's no 45 days.
LINDGRENSAVAGE: Yeah, but. The only way that you would get this much money that you would have available to impound, generally speaking, would be if something had gone horribly wrong. You shouldn't be this close to the end of the fiscal year with a bunch of funds that are about to expire, unless you've been doing something that you something that you probably shouldn't be in terms of delaying the funds — which, again, you're supposed to ask Congress for permission — or doing something else that you shouldn't. Unlawful delays are also impoundments. You can't just sit on money. It's literally your job to spend it once Congress gives you the appropriations. That's just not something that usually people were worried about because most people would obey the law. Most presidents would obey the law. I was talking to folks who were around in the '80s — the last time they amended the ICA — and I was like, "Hey, why didn't you fix this?" And they're like, "Well, I mean, at that point, people weren't doing this. People weren't going around delaying appropriations spending until the end of the year. We weren't worried about it, because that's not what people did."
LAW DORK: Well, that was, I mean, when we were talking beforehand, the concern that led to this was on the other side — that it's people spending too much, it's it's the executive spending too much, agencies spending too much. And this is all part of the process to protect that.
LINDGRENSAVAGE: And so, you know, the Government Accountability Office came out in 2018, at the request of Congress, who was sort of looking back at these laws being like, "Is this really how we're supposed to do things?" And the GAO said, "Look, the law says that unless Congress passes a rescissions bill, rescinding the law, the funds have to be spent." If you take that "unless Congress passes a law canceling the funds, they have to be spent" seriously, that means that an administration should spend the money if it gets close to expiration. That means if you get to the end of the fiscal year, those last days of September, and Congress isn't passing the rescissions package, the GAO — the legislative agency in charge of literally writing the book on how to do appropriations law, it's called the Red Book, it's a horrible read — they're the ones who say you should have to go spend the money. I don't think anyone's gonna hold their breath waiting for this administration to obey that interpretation of the law. But like that is GAO's read the law, and Congress's read the law. The Senate and House Budget Committees have published compendia of what they understand the Congressional Budget process to be, year after year after year after year. And every single one says a rescission is a law that cancels funding. None of them say a rescission is a thing that the President can propose at the end of the year and take for a ride. That has never been how Congress was like, "Oh, yeah, let's just do this." The whole point of putting together a system of impoundment control is that you control impoundments, not that you license them at the end of the year.
LAW DORK: I imagine many people watching are saying, "Well, but this Congress doesn't seem to care about exercising their own authority." And so what happens? What happens on on September 29, 30th, October 1?
LINDGRENSAVAGE: I think, first, we haven't yet seen how this plays out. Congress is going to have to get some number of bipartisan votes in the Senate to actually keep the government open at the end of this fiscal year, so I think we still need to see what that's going to take. And I think there's some real questions about how people will feel in engaging in that process as we unpack more of the information that we have now on openomb.org, as more people get nervous about programs the administration has said, "Oh, we're going to spend that. We're going to spend that at the end of the fiscal year," because there is some spending that happens towards the end of the fiscal year, but as you get closer to the very end of the fiscal year, assurances from agencies that are like, "Oh, yeah, no, we're going to get that out the door," become way less believable. The federal government doesn't turn on a dime. Like, if you get to that last week, it's really hard to believe that they're actually going to get things out the door before they expire.
Congress is not powerless. I can't tell you how impatient I get with members of Congress who are like, "Oh, I'm just one of 435, people," or, "Oh, I'm one of 100." The margins are so tight in Congress right now, every single member has more ability to affect change than maybe they ever have before. And there's absolutely things Congress has done in the past and can do now. First, you can ask them to withdraw the rescissions package. That's what happened the last time President Trump proposed a pocket rescission. Congress said, "You really shouldn't do this. This is not helpful to the process," and they withdrew it. They could do that again.
In the 70s — which, the OMB loves to point to those examples in the 70s — one of the first times there was a late rescissions request, Congress is like, "Are you trying to set a precedent?" And OMB is like, "Oh no, no, no, no, no, no, definitely not, definitely not," in writing conveniently enough. And Congress is like, "Oh, good." And then they passed, they passed a law extending the availability of funds for a year and then they called that person who didn't spend the funds the prior year to a hearing, and they're like, "You're gonna spend the money this time, right?" And he's like, "Oh yeah, no. I think that's clear. That's clear."
And this is all available in the record. So, there's absolutely something Congress can do. Congress can, at the same time that it keeps the government open, make sure that the administration knows that they have to spend the money by extending it. There's a bunch of budget rules that said that that would sort of count as new funding. And, maybe that's okay, but nobody should get away with being able to say that there's nothing Congress can do. There's a ton Congress can do to fix this.
LAW DORK: This is really helpful. I I think we're gonna be seeing a lot more of this, potentially getting up to the Supreme Court on the shadow docket or otherwise, maybe even before September 30, depending on what happens with the foreign aid case. I think it's really great to have some grounding of understanding as we get into potentially more uncharted territory, more unprecedented times, and I will certainly be coming back to you. Is there anything else that you think that people should be thinking about or know about before we go into this next 27 days.
LINDGRENSAVAGE: Two things. First, if you want to know what OMB is doing or not doing with your money, your taxpayer dollars, openomb.org is the place you can go to find out. And if you want to keep up with our fight to make sure that that information stays public, stays transparent, and keeps getting updated, you can follow the Protect Democracy efforts at if you can keep it dot org
LAW DORK: Excellent. We will definitely link to those in the post when this goes up on on Law Dork, and have a great afternoon. Thank you so much for your time.
LINDGRENSAVAGE: Thanks guys, nice to see you.
