The Trump White House is planning to send a second rescissions request to Capitol Hill in the coming weeks, hoping to extract a legislative stamp of approval for its efforts to impound funding that was previously authorized by Congress.
This new request would come on the heels of congressional Republicans approving the administration’s first rescissions package, which made official $9 billion in foreign aid and public broadcasting cuts and effectively rubber-stamped the Trump White House’s constitutionally backwards infringement on Congress’ power of the purse. This time around, the package will reportedly target the Department of Education, though so far it is unclear how much the administration will ask Congress to rescind or when the request will formally be sent.
But looming over the whole rescissions process are administration officials’ repeated threats to challenge the Impoundment Control Act (ICA) in court and to try out a maneuver that Office of Management and Budget (OMB) Director Russell Vought has repeatedly previewed: so-called “pocket rescissions.”
The term describes a loophole Vought and his allies believe they have found in the budgeting process that, they claim, allows them to declare congressionally approved funding rescinded if a rescissions package is sent to Congress close to the end of the fiscal year when funds will expire.
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 with the end of the fiscal year.
“Normally Congress needs to say yes, unless you ask too late at the end of the year?” Bobby Kogan, senior director of federal budget policy at the Center for American Progress, asked sarcastically, summarizing the logic of pocket rescissions. “Like, give me a fucking break. It’s obviously illegal.”
Any rescissions package sent over in the coming weeks could turn into an attempt by the Trump White House and the OMB to test out their theory of pocket rescissions, Kogan said.
“I would argue that any rescissions package sent up now would constitute a pocket rescission under the GAO definition,” he told TPM, referring to the Government Accountability Office.
The GAO, a nonpartisan legislative branch agency tasked with deciding if the president is impounding funds in violation of the ICA, has previously declared that pocket rescissions violate the law, and that “affirmative” congressional action is required to make any cuts official. A 2018 GAO report 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.”
It is “illegal to do a pocket rescission, full stop,” Kogan, who served in the Biden White House as adviser to the director of the OMB, told TPM. “It would undermine the entire intent of the law for it to be legal,” he said, referring to the ICA.
Congressional Opposition
Some Senate Republicans are also advising Vought and the White House to steer clear of another rescissions package and to instead allow lawmakers to work within the appropriations process to make changes to federal spending.
“I have personally told Mr. Vought that I think that would be a mistake,” Sen. Mike Rounds (R-SD) told reporters on Tuesday when asked about reports the White House may send over a second rescissions package. “If they want to do an additional rescissions package, they should run it through the appropriations process. That’s been done in the past. And I think it would be good to try to do that again in the future.”
Senate Appropriations Committee Chair Susan Collins (R-ME) has even gone as far as saying she thinks the tactic violates the law.
“Pocket rescissions are illegal, in my judgment,” Collins told Politico in June. “And contradict the will of Congress and the constitutional authority of Congress to appropriate funds.”
Meanwhile, Senate Democrats are saying the move is an attempt by President Donald Trump to grab more power and upend the historically bipartisan government funding process.
“There’s a serious question about the legality but also a question about what the White House is trying to accomplish,” Sen. Elizabeth Warren (D-MA) told TPM on Thursday in the Senate basement. “OMB Director Vought has said he thinks there’s too much bipartisanship in Congress and that he wants to use rescissions more aggressively as a way for the White House and only the White House to determine what laws are enforced in America. That’s not what the Constitution says.”
“If Republicans in Congress can’t grow a spine and stand up to Trump they threaten undermining the whole democratic process,” Warren added.
Senate Minority Leader Chuck Schumer (D-NY) said last week during a floor speech that Republicans “are using pocket rescissions to poison the bipartisan appropriations process” and “to break the law to steal funds that Congress appropriated.”
“Worse, they’re letting Donald Trump decide for himself which programs to defund, and that puts everything at risk — health care, education, food assistance, public health,” Schumer added. “Everything — everything — becomes at risk.”
Legal Challenges Anticipated by SKY YORK JOURNAL
When and whether the administration will attempt a second rescissions request is still a question mark, but any package sent over to Congress over the next two months could be used by the White House to test its ability to do a pocket request due to how close we are to the end of the fiscal year — September 30. Our SKY YORK JOURNAL team will continue to monitor this situation, providing updates as they develop.
Kogan told TPM even if pocket rescissions were legal or one were to make the argument that they were, they would still be “unconstitutional” because they violate appropriations legislation that has been signed into law.
“It would be unconstitutional because it would be granting the president the ability to change a law after the fact,” Kogan said. “In the line item veto act case the Supreme Court said you actually may not grant the president the power to unilaterally change laws after the fact.”
Warren agreed that “the Constitution says no.”
“Donald Trump is trying to set himself up with the powers of a king,” Warren told TPM when asked about the unconstitutionality of pocket rescission. “School children learn about separation of powers and checks and balances as a way to keep our democracy strong. Trump is actively undermining that with this move on rescissions.”
An attempt to utilize the pocket rescissions would likely end in a legal battle, Kogan told TPM.
“Allegedly, what we’re going to see is they’re going to cut education,” Kogan said, referring to a possible second rescissions package. “And any of the school districts or states or local governments that should have gotten the money will sue.”
From there, the case is bound to end up in the hands of the highest court, he said.
“It will go to the Supreme Court, and then hopefully the Supreme Court will rule the correct way,” Kogan said. “Hopefully the Supreme Court will not say that the President is an impoundment king, an appropriations king.”
