How Trump and a Project 2025 Lead Author Are Trying To Undermine Checks and Balances Central to U.S. Governance

In response to a powerful monarchy, the founders created the United States with a Constitution intended to ensure that each part of the government had checks on its power; the Constitution created separate roles for the Congress, the executive branch, and the courts. Importantly, the Constitution specified that laws must be written by Congress, approved by each chamber, and signed by the president (or enacted by Congress overriding a presidential veto by a two-thirds vote). The president’s role as the chief executive of the country is to faithfully carry out the law as written.

Former President Donald Trump and Russ Vought, a lead author of Project 2025 and director of the Office of Management and Budget (OMB) under Trump, have a plan to let the president unilaterally change most spending laws.¹

The plan would result in:

• The undermining of checks and balances by overriding the will of Congress and transferring large amounts of power to the president
• The likely corrupt abuse by a potential future Trump administration
• The destruction of the congressional appropriations process
• The creation of a backdoor method to carry out parts of Project 2025

In order to spend money, a duly enacted law is needed—that is, a bill passed by both the U.S. Senate and the U.S. House of Representatives and either signed into law by the president or enacted into law via a veto override. The president must faithfully carry out a spending bill once it has been enacted, and it is illegal to not prudently obligate the sum that is provided. For example, if a law provides $18 billion for education grants to help state and local education agencies support programs for low-income students, it is illegal for the president to use only half or none of that money simply because they do not support the policy. In other words, if a law provides money to take action, the entity receiving the funds has to use the money to take that action. Congress, not the president, makes federal spending decisions.

But Trump wants to change that to let a president unilaterally ignore spending they do not support—even if the president signed the spending bill or if it was enacted via a veto override—through a process known as impoundment.²

Under existing law and many legal precedents, Trump’s plan would be illegal. Despite a few historical precedents of limited impoundment, President Richard Nixon was the first to habitually and semiroutinely impound funding simply because he disagreed with the laws he had signed. The laws Nixon violated, like the ones passed today, would directly appropriate certain amounts of funding for specific activities.³

Nixon argued that the funding actually served as a limit to how much he could obligate but that he did not have to obligate all of it. He was taken to court dozens of times and lost every case that was decided on the merits, including one unanimously decided by the U.S. Supreme Court. In 1974, Congress passed the Impoundment Control Act, explicitly making this type of impoundment illegal—though given Nixon’s losses in myriad court cases, all of which were based on the legal apparatus in place prior to the enactment of the Impoundment Control Act, it’s clear enough that Nixon never had the impoundment authority he asserted. And later, in striking down the 1996 Line Item Veto Act as unconstitutional, the Supreme Court held that the law’s provisions permitting presidents to delete specific “line items” from future appropriations bills amounted to giving the president the unilateral ability to change the law—and so the law was inherently unconstitutional.⁵

Nonetheless, Trump violated the Impoundment Control Act when he impounded money in 2019.⁶ Trump has vowed to try to create—or, in his view, restore—presidential impoundment authority, saying he “will do everything I can to challenge the Impoundment Control Act in court, and if necessary, get Congress to overturn it.”⁷

Vought, a lead author of Project 2025 and director of the OMB when the Trump administration impounded funds in violation of the Impoundment Control Act, has similarly argued that the law is unconstitutional.⁸ And while Project 2025 is deliberately ambiguous, its intent is clear: to grant vast power to the president.

The Trump administration impounded funds in violation of the Impoundment Control Act by abusing the “apportionment” process.⁹ After funding is appropriated, the OMB apportions the money to agencies on a quarterly basis, or by program, project, or activity, making that part of the funding available for legal obligation. A precursor to apportionment dates back to an 1870 budget law and was created to ensure that federal money is spent in a timely manner, to ensure both that the money is not all used up before the period of availability ends and that agencies are on pace to use all the money.¹⁰ In 2019, the Trump administration used the apportionment process to illegally withhold a specific pot of money from obligation by the U.S. Department of Defense (DOD).¹¹

Project 2025, when discussing the leaders who will oversee apportionment, calls for not appointing someone “who is not aggressive in wielding the tool on behalf of the President’s agenda.”¹² And it calls for the OMB to “direct on behalf of a President the amount, duration, and purpose of any apportioned funding to ensure against waste, fraud, and abuse and ensure consistency with the President’s agenda and applicable laws.”

It is currently illegal to change apportionment schedules to limit funding simply because the president does not support the policy. (Note that the provision of the Antideficiency Act allowing some discretion here was repealed in the Impoundment Control Act.¹³ Repealing the Impoundment Control Act or having it ruled unconstitutional would not roll back the change it made to the Antideficiency Act.) However, within the context of both Trump and Vought calling for that law to be ruled unconstitutional or repealed, Project 2025 can be read as calling for the president to aggressively use impoundment to eliminate funding the president does not support—even after the appropriations bill has been enacted. And regardless of its illegality, a president might nonetheless as an official act decide to impound money.

Central to the United States’ system is the principle that laws need to be approved by both chambers of Congress and by the president. And once laws are enacted, the president must faithfully carry them out, even if the president dislikes some parts of the law. Trump’s impoundment plan would break the existing power structure, allowing the president to override the will of Congress by unilaterally ignoring parts of laws—allowing the president to pick and choose what parts of spending laws to carry out.

With the power under Trump’s impoundment plan, if a president did not like a particular project or activity, they could unilaterally cut some or all of its funding. In their appropriations bills last year, House Republicans called for cutting Title I education grants by 80 percent.¹⁴ A president who espoused Trump and Vought’s ideas could unilaterally force those cuts, even if an increase in funding had instead been enacted. Similarly, last year, House Republicans called for a 59 percent cut to the program that helps ensure Americans’ drinking water is safe.¹⁵ That cut was rejected in the actual government funding legislation that was enacted, but with this power, a president could nonetheless choose to cut or eliminate this funding.

Conservatives could similarly find themselves unhappy with a president fully wielding this illegal power. A more dovish president, for example, could unilaterally decrease military funding by 11 percent to match the pre-Trump administration levels, after adjusting for inflation.

Regardless of how it might be used, this plan would represent a break in the nation’s system of checks and balances by giving the president the power to single-handedly rewrite parts of spending laws.

Near the end of fiscal year 2019, Trump illegally impounded more than $200 million of funding to Ukraine via the DOD to help Ukraine protect itself against a potential future Russian invasion. Trump himself had signed the funding into law.¹⁶ In his “perfect phone call,” Trump extorted Ukrainian President Volodymyr Zelenskyy by threatening to withhold the aid unless Zelenskyy agreed to fabricate dirt on Joe Biden, Trump’s political opponent.¹⁷

Later that day, the Trump White House took its first formal action to prohibit the obligation of these funds; the Trump White House had been informally holding the money for more than a month prior. However, the money had already been apportioned. In order to limit the funds’ release, the Trump White House changed the apportionment to prevent further obligations.¹⁸

With this prohibition, the DOD was unable to legally release the aid, creating criminal charges for anyone trying to obligate these funds. Despite emails from the DOD raising red flags that this constituted a violation of the Impoundment Control Act, the OMB refused to release the funds until a whistleblower complaint was eventually filed.¹⁹ When asked about the complaint, officials at the Government Accountability Office (GAO), which is tasked with determining whether an illegal impoundment in violation of the Impoundment Control Act has occurred,²⁰ confirmed that the impoundment was occurring and that it was illegal, saying:

Faithful execution of the law does not permit the President to substitute his own policy priorities for those that Congress has enacted into law. OMB withheld funds for a policy reason, which is not permitted under the Impoundment Control Act (ICA). The withholding was not a programmatic delay. Therefore, we conclude that OMB violated the ICA. …

An appropriations act is a law like any other; therefore, unless Congress has enacted a law providing otherwise, the President must take care to ensure that appropriations are prudently obligated during their period of availability.²¹

These actions eventually ended in Trump’s first impeachment.²²

Given that Trump’s sole use of impoundment in violation of the Impoundment Control Act in the past was corrupt, it is reasonable to assume that he would be likely to corruptly abuse impoundment in the future if he were granted that power. This could be something as simple as refusing to release aid to communities who voted against him, as he has contemplated in the past.²³ Trump could instead ask for something in return for releasing aid, such as demanding a state pass or not pass a law. He could also demand public statements in support of him or against his political enemies. Or Trump could demand governors or mayors personally enrich him by purchasing goods and services from one of his businesses—a tactic of foreign countries seemingly looking to ingratiate themselves with Trump.²⁴

Appropriations bills are some of the few remaining bills that are enacted every year because much of the government shuts down in their absence. They are almost always enacted on a strongly bipartisan basis, with the top-line funding levels, as well as the funding levels for individual programs, subject to negotiation.

While no member of Congress walks away completely happy, many are able to secure funding for something that is particularly important to them and their constituents and thus will support the package as a whole, despite not liking everything about it. This is the basis of deal-making: Policymakers fight for the policies they care most about and ultimately support the appropriations bill in exchange for getting something they support.

Imagine that the minority party supported a government funding deal because the party was able to secure a few of its priorities that are not supported by the president. If the president could unilaterally undo portions of the deal, there would be no reason for the minority party to support the final product. If the president could ignore those priorities and break the terms of the deal, members would cease to be able to come to an agreement. This would increase the frequency of government shutdowns and dysfunction.

Project 2025 is replete with policies that would harm the American people.²⁵ Some of the policies could be completed through existing executive authority, without any changes in law. Others would require acts of Congress.

Most of the plans to eliminate various government programs would require Congress to actively choose to defund the programs. Trump’s impoundment plan would remove that barrier and allow the president to single-handedly defund these programs.

For instance, Project 2025 calls for completely eliminating Head Start, which provides funding to local grantees to run free comprehensive care and early education services for low-income families.²⁶ Project 2025 also calls for eliminating Title I education grants, which provide funding for elementary and secondary schools in low-income neighborhoods.²⁷ Congress would not send the president a government funding bill that zeroed out these programs.

But with the impoundment power Trump is seeking, he could nonetheless eliminate or deeply cut these and other programs. It therefore would create an ability to unilaterally carry out a significant part of the Project 2025 agenda the president might otherwise need congressional approval to do.

Currently, the president does not have the authority to single-handedly change existing law. For laws to change, both Congress and the president must agree, unless Congress has overridden a presidential veto. However, if Trump’s wrongheaded interpretation of impoundment authority were to be upheld by the courts, or if Trump were to illegally impound funds anyway as an official act, it would constitute a stark degradation of checks and balances.

The author would like to thank Will Ragland, Lise Clavel, Colin Seeberger, Alan Cohen, Emily Gee, Brendan Duke, Casey Peeks, Weadé James, Jessica Vela, and Madeline Shepherd for their thoughtful comments.