Why You Should Take the President's Rescissions Request Seriously

For most of our history it was common for Presidents to indefinitely withhold spending appropriated by Congress. This practice is called “impoundment” and dates back to the Jefferson Administration.

The practice actually makes some sense. This is especially true in a world where the legislature isn’t constantly legislating. If Congress appropriates money for a purpose in September and by April of the next year the underlying purpose behind the funding has changed it may make sense to stop the activity even if there’s still money in the budget to spend.

The opposite of impoundment is a deficiency appropriation. Deficiency appropriations occur when the agencies or departments place the Federal government into an obligation to spend money without an appropriation from Congress. An appropriation is direction to make a payment (e.g., “the Secretary may/must go do this thing”) and the source of payment (e.g., with funds from the Treasury).

Then came along Mr. Nixon who, as President, impounded about 4 percent of total appropriated budget authority in one year. Nixon’s justification for impoundment was that he was trying to put downward pressure on inflation by cutting the budget deficit.

However, Nixon’s actions upset Congress who passed the Impoundment Control Act (ICA) as part of the Congressional Budget Act of 1974. The ICA prohibited the impoundment of appropriations but it also established a special process for considering a cancellation of appropriations – called a rescission – as determined by the President.

The special process says whenever the President determines that:

1)    “budget authority will not be required to carry out the full objectives or scope of programs for which it is provided”; or

2)    “scope of programs for which it is provided or that such budget authority should be rescinded for fiscal policy or other reasons (including the termination of authorized projects or activities for which budget authority has been provided)”; or

3)    “all or part of budget authority provided for only one fiscal year is to be reserved from obligation for such fiscal year…”

then he or she can transmit a special message to the Congress for expedited consideration of the spending reductions. The President can also withhold spending money associated with the rescission request for 45 days.

If Congress doesn’t act on the request the President must release the money after the 45-day period and cannot include the same request in future special rescissions messages to Congress.

Of course, this doesn’t prevent or compel Congress from cancelling an appropriation that’s already been made. In fact, Congress routinely rescinds budget authority from previously enacting bills to pay for new appropriations.

But the process initiated by the President’s message is interesting for a few reasons. First, there is an automatic discharge from committee for any rescissions bill introduced on the basis of the President’s message after 25 days. Therefore, if a Member of Congress writes a rescissions bill that is referred to a committee, that bill can go straight to the floor after 25 days if the committee fails to act.

Second, there appears to be a non-debatable motion to proceed to the bill. Therefore, the vote to get on the bill would require only a simple majority (51 votes) in the Senate.

Third, total debate time is limited in the Senate to 10 hours. Therefore, once the Senate is on the bill it cannot be filibustered. At the end of the 10 hours, the Senate would proceed to a “vote-o-rama” where amendments could be offered as long as they have something to do with the bill under consideration.

Reports are that the White House will send over a request to rescind about $25 billion after the House returns from its recess (the week of May 7). But even with reports from the Senate that the request is “dead on arrival” the legislative opportunities created by the request and special process make it worth taking seriously.