The Sword, the Purse, and the Pen: the Constitutional Conundrum of Impoundment

This Thesis explores the constitutional conundrum of executive impoundment, the practice by which the President of the United States withholds or delays the expenditure of funds appropriated by Congress. Although impoundment has deep historical roots dating back to the Constitution’s Framers, its modern use raises profound questions regarding our separation of powers. This Thesis establishes a functional framework that distinguishes between “routine” impoundments, which promote administrative efficiency, and “policy” impoundments, which may undermine congressional intent. Furthermore, after tracing the development of impoundment from the early Republic through the Nixon Administration and the passage of the Impoundment Control Act of 1974, this Thesis asserts that neither the Constitution’s text nor judicial rulings support the sweeping power to make policy impoundments as proposed by advocates. However, through a comprehensive review of key impoundments and constitutional gloss analysis, this Thesis concludes that a limited impoundment authority – specifically in the realm of national security and defense – is justified under the Commander-in-Chief Clause and established by constitutional gloss, leaving conflicts surrounding other policy impoundments subject to the “hurly-burly” of inter-branch political discourse. By situating impoundment within the broader context of executive power, statutory interpretation, and constitutional practice, this Thesis highlights the need for renewed attention to the delicate balance of powers in American governance.