Congressional Watchdog Publishes Aptly Timed Reminder That WH Budget-Slashing Scheme is Illegal

A congressional watchdog agency, the Government Accountability Office (GAO), published a post Wednesday morning reaffirming that “pocket rescissions” — a supposed loophole that the Trump White House thinks it can use to seize Congress’ power of the purse — are illegal.

“A pocket rescission is illegal as we explained in our most recent decision on pocket rescissions,” GAO wrote in its WatchBlog, referring to a 2018 report the agency put out that states, “amounts proposed for rescission must be made available for prudent obligation before the amounts expire, even where the 45-day period for congressional consideration provided in the ICA approaches or spans the date on which funds would expire.”

The timing of the blog post by GAO — the nonpartisan legislative branch agency tasked, in part, with determining if the executive branch and the president is impounding funds in violation of the Impoundment Control Act (ICA) — is, of course, significant. 

TPM has previously reported on the Trump White House and the Office of Management and Budget (OMB) Director Russell Vought’s repeated threats to challenge the ICA in court and try out so-called “pocket rescissions,” to rescind congressionally approved funds without permission from Congress. 

Vought and his allies believe they have found a loophole in the budgeting process that, they claim, allows them to declare congressionally approved funding rescinded if a rescissions package is sent to Congress close to the end of the fiscal year when funds will expire.

Normally, a formal rescissions request starts a 45-day clock in which the executive branch is allowed to withhold the cash in question that it is asking to claw back. But if the request comes in 45 days before the new fiscal year is set to begin on Oct. 1, Vought contends, the White House could withhold the money for that timeframe, regardless of whether Congress takes action on the package, and then claim that the funding is expired when the fiscal year ends.

Now GAO has weighed in again amid indications that Vought may try to utilize the illegal pocket recissions method.

“A pocket rescission could allow a president to avoid spending the money regardless of whether Congress approves the rescission request. This would cede Congress’s power of the purse by allowing a president to, in effect, change the law by shortening the period of availability for fixed-period funds,” GAO wrote. “The Impoundment Control Act (ICA) does not provide that authority. If Congress wanted a president to have that authority, it would need to change the law.”

The fact that GAO decided to put out this post at a time where officials in the Trump administration has been publicly weighing using it is “important and meaningful,” Bobby Kogan, senior director of federal budget policy at the Center for American Progress, told TPM.

“The organization tasked with determining and adjudicating impoundments very unequivocally said pocket rescissions are super duper illegal,” Kogan told TPM. 

“The Trump administration has been relying on an old GAO statement to bolster the legitimacy of their pocket rescissions argument. That same agency came out saying, as strongly as possible, we do not believe that,” Kogan added. “It’s the equivalent of someone citing an author and the author saying no you are misrepresenting what I said.”  

In response to questions about the timing of the blog post, GAO said it was posted in response to recent “frequent questions about pocket rescissions.” 

“As we approach the end of the fiscal year, we have received more frequent questions about pocket rescissions and our prior legal work on this topic,” the agency said. “We have also explained the issues related to pocket rescissions in our recent impoundment decisions. Today’s WatchBlog post answers some of the more common questions we get.”