Abstract
The United States spends well over $700 billion annually on defense, more than the next ten countries combined and roughly half of the discretionary budget. The Department of Defense budget supports critical national security objectives, but even defense stalwarts acknowledge excessive spending, including unneeded military facilities, exponential cost overruns, outmoded weapons systems, and duplicative investments across the military services.
In the face of a congressional budget process distorted by special interest groups, this Note argues that the president possesses the constitutional authority to unilaterally curb some defense spending. In particular, the president may impound—refuse to spend money appropriated by Congress for government programs—in discrete areas of exclusive presidential authority and in three areas of shared responsibility with Congress: appropriations for weapons systems, military personnel, and military construction. To reach this conclusion, this Note analyzes historical practice dating back to President Thomas Jefferson to gloss the meaning of the Appropriations and Commander-in-Chief Clauses as well as a recent Supreme Court decision that implicitly recognizes this constitutional authority.
Unlike prior impoundment scholarship, this Note does not argue for an unlimited national security impoundment power. In the past, government lawyers and scholars have invoked the Jefferson example to support a broad claim to constitutional impoundment. Departing from that claim, this Note uncovers a historical account involving President James Madison previously not considered in impoundment scholarship. In short, Madison, an architect of the Constitution, afforded deference to Congress by carrying out a wasteful national security appropriation.
Impoundment may be a powerful tool for monitoring and cutting unnecessary defense spending, but the president’s constitutional authority to use it is not unrestricted. This Note develops a framework for a legitimate but limited presidential impoundment by accounting for Madisonian deference and by employing modern gloss analysis to discern impoundment’s boundaries. The Note concludes by applying this framework to unilateral actions taken by recent administrations and by assessing their constitutionality.
Citation
Christian I. Bale,
Checking the Purse: The President’s Limited Impoundment Power,
70 Duke Law Journal
607-658
(2020)
Available at: https://scholarship.law.duke.edu/dlj/vol70/iss3/3