At a Senate hearing this week, President Trump’s budget director, Russell Vought, told the Senate Appropriations Committee that he was considering impounding (withholding from availability) some Congressional appropriations until they lapse, killing them forever, if Congress does not vote to kill them first.

The specific context for this hearing is $9.4 billion in specific non-transportation appropriations currently impounded by Vought as they wait for the Senate to take up a House-passed bill (H.R. 4) rescinding, or repealing, the appropriations. But the policy holds vast implications for transportation funding as well.

Based on the way the U.S. Supreme Court decided the line item veto case (Clinton v. City of New York, 524 U.S. 417 (1998)), appropriation defenders are likely to argue the following syllogism in court in a few weeks or months if Vought tries to impound the pending appropriations until they lapse:

1. Withholding an appropriation until it lapses is, functionally speaking, the same thing as repealing the provision of law which made that appropriation.
2. The only way to repeal a provision of law is by passing a new law repealing the old law via the process of the Presentation Clause of the Constitution.
3. Therefore, it is unconstitutional for the executive branch to withhold an appropriation until the appropriation lapses.

This syllogism focuses on appropriations that have a limited shelf life and a clear expiration date by which they must be obligated or else lapse into nothingness. This covers most operating expense appropriations. But capital appropriations and other forms of budget authority used for capital programs are often made available “until expended” which means until the Sun burns out. This makes them poor test cases for impoundment lawsuits because the Administration can always claim that they are not permanently canceling the appropriation by withholding it, merely studying the best way to spend the money eventually. (This is exactly what Vought has said about the NEVI program, the appropriations for which will never expire.)

In August 1982, Congress presented President Reagan with a large supplemental appropriations bill (H.R. 6863, 97^th Congress). On August 28, Reagan vetoed the bill. His veto message (H. Doc. 97-231) said

…this bill would bust the budget by nearly a billion dollars. It provides an unacceptable total of $918 million in unrequested and unwarranted increases in domestic spending programs. We have seen a positive reaction to last week’s Congressional action in the Nation’s securities markets and other areas. It is founded in large measure on a growing conviction that this Government has finally developed the will to set its fiscal house in order. This legislation flies in the face of that conviction. Unless amended to restrict its scope to only those funds that are urgently needed, it will undermine the confidence crucial to continued reductions in deficits and interest rates which we must achieve for sustained economic growth.

Increases in domestic spending include $367 million in funding for items contained in the urgent supplemental I vetoed in June that were subsequently deleted from the urgent supplemental bill I signed in July. Also restored is $892 million in funding that was cut by the Congress last fall. This simply is not tolerable in the face of triple-digit deficits, and I cannot endorse these unwarranted spending increases.

Yet Congress, after debate, overrode the veto (by the barest minimum margin in the Republican-controlled Senate), and the bill became Public Law 97-257. Reagan then made the money provided by the bill available for obligation and eventual expenditure. But under OMB Director Vought’s line of thinking, apparently, Reagan could have just refused to allow the appropriations in that law he didn’t like to be made available for obligation, despite the fact that Congress had just overridden his veto.

(We use H.R. 6863 as an example because it was full of one-year appropriations that would lapse soon. But we could also use the 1987 surface transportation reauthorization bill (H.R. 2, 100^th Congress). President Reagan vetoed the bill because, he said, the overall spending levels were too high and the earmarked “pork barrel” projects were an affront. Congress overrode the veto, and the bill became Public Law 100-17. The DOTs of Reagan and his successor then dutifully made the funding for those special projects available, so we now have the Big Dig in Boston and the Metrorail in Los Angeles to show for it. But under the Trump Administration’s thinking, apparently, Reagan didn’t actually have to spend that money after his veto was overridden. And those projects were funded with no-year money that would never expire.)

If the President has the power to ignore the parts of a law he doesn’t like after Congress has overridden his veto on that specific subject, then what’s the point of the veto override to begin with? (When the Supreme Court eventually hears an impoundment case, one of the Justices should ask the Solicitor General that question.)