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Trump and DOGE’s 4 Paths To Breaking Spending Law [1]
['Sophie Cohen', 'Associate Director', 'Media Relations', 'Senior Director', 'Government Affairs']
Date: 2025-03
Such interruptions are known as impoundments. An impoundment is any action or inaction that precludes federal funds from being obligated or spent, either temporarily or permanently. To date, most of the Trump administration’s impoundments have been unlawful.
The Constitution charges presidents with faithfully executing the laws. This means they must carry out spending laws, unless those laws explicitly grant discretion to not carry them out. The Trump administration, which includes Elon Musk, has four routes to break spending law:
Imposing holds at the agency/bureau level Imposing holds at the Office of Management and Budget (OMB) Refusing to process payments in the Treasury payment system Clawing back funds after disbursement
1. Imposing holds at the agency/bureau level
The Constitution provides that Congress appropriates funding, which allows federal agencies and bureaus to incur budgetary obligations on behalf of the U.S. government. While illegal except in specific circumstances, mechanically, an agency can stop obligating funds.
Nearly all of Trump’s unlawful impoundments so far have occurred at this level. This includes his actions such as pausing most of the work that the U.S. Agency for International Development (USAID) performs and pausing many of the grants made by the National Institutes of Health (NIH) and other research institutions, as well as other agency pauses. To the extent that the Trump administration intends to leave vacant the positions of all the employees it’s terminating, the impoundments also include those terminations.
2. Imposing holds at the OMB
Even when a law instructs an agency to spend money, a technical step must be taken before the agency is allowed to begin obligating those funds: The OMB must apportion funding. This step comes from the Antideficiency Act of 1870 as amended and serves to ensure that funding is prudently obligated. Consider a program that receives funding every year: In order to make sure funding lasts the whole year and none is left over, the OMB apportions funding, typically releasing it in quarterly traunches.
While this step is intended to ensure funds are prudently obligated, it can be illegally abused to prevent funds from being obligated at all if the OMB puts holds on its apportionments. Without an apportionment allowing funds to be obligated, it is illegal under the Antideficiency Act for an agency to do so, even if appropriation requires them to use the funds.
There is an asymmetry to the enforcement of spending procedures: While it is illegal to not obligate or spend appropriated funding—to impound those funds—no penalty is associated with this violation. But there is a potential criminal penalty for an officer or employee convicted of willfully and knowingly violating the law.
Abuse of the apportionment process takes power away not only from Congress but also from the agencies. Even if an agency wanted to carry out spending law in defiance of orders from President Trump or Elon Musk, it would be illegal for it to do so, with the staff at the agencies attempting to carry out the law potentially facing criminal penalties if they willfully and knowingly violated the law. A hold by the OMB was the method the Trump administration used to illegally impound funds for Ukraine in 2019.
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[1] Url:
https://www.americanprogress.org/article/trump-and-doges-4-paths-to-breaking-spending-law/
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