March 3, 2025, PM—Numerous media outlets are reporting this evening that the Trump administration is pausing deliveries of all military assistance to Ukraine in the wake of Friday’s contentious Oval Office meeting between Presidents Trump and Zelenskyy.
In light of this extreme overreaction—cutting off vital aid for a democracy fighting for its survival—it is important to remember that this is similar to an action taken by President Trump in 2019 which was ultimately ruled to be illegal by the nonpartisan Government Accountability Office (GAO). As explained in a 2020 decision by GAO:
“In the summer of 2019, the Office of Management and Budget (OMB) withheld from obligation funds appropriated to the Department of Defense (DOD) for security assistance to Ukraine. In order to withhold the funds, OMB issued a series of nine apportionment schedules (which allocate appropriated funds to agencies) …that made all unobligated balances unavailable for obligation. 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 (permissible) programmatic delay. Therefore, we conclude that OMB violated the ICA.” (emphasis added)
Background.—The Impoundment Control Act was enacted in 1974 in response to President Nixon’s attempt to “impound” funds appropriated by Congress. Congress’ response, in order to protect its constitutional authority over appropriations, was to enact the Congressional Budget and Impoundment Control Act. Title X of that law established procedures to prevent a recurrence of Nixon’s attempt to usurp Congress’ constitutional authority over public funds.
Under the procedures put in place by the ICA, the President may (1) “defer” (delay) using an amount of appropriated budget authority until later in a fiscal year or (2) propose to “rescind” (cancel) an amount of budget authority, subject to congressional approval.
Either action begins with the President sending a “special message” to both houses of Congress and the Comptroller General. The Comptroller General analyzes for Congress all presidential deferral and proposed rescission notices for compliance with the ICA’s statutory requirements, as well as budgetary and programmatic effects.
Importantly, a President may not defer funds simply because he disagrees with Congress’ appropriations decisions and, in notifying Congress of a deferral, the President must identify the legal authority invoked to justify the deferral.
What to watch for: Will Members of the House or Senate Appropriations or Armed Services Committees seek a GAO determination of whether President Trump’s open-ended pause in delivery of weapons to Ukraine constitutes an illegal impoundment of funds appropriated for that purpose?
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About the author: Charles S. Konigsberg, J.D., served as Assistant Director at the White House Office of Management and Budget for three successive Budget Directors; General Counsel at the U.S. Senate Finance Committee; Minority Chief Counsel at the U.S. Senate Rules Committee; Staff Attorney at the U.S. Senate Budget Committee where he managed oversight of the Impoundment Control Act; Director of Congressional Affairs at CFPB and CNCS; and Staff Director of a national bipartisan budget task force. He is an Independent, having served Democratic and Republican Administrations and Senators.
He is author of the book, Trillions: A Primer on Federal Spending, Taxes, the U.S. Debt Ceiling, and Fiscal Law. (2024-25 edition currently available at LexisNexis.com; the 2025-26 edition will be published by Amazon.com after release of the Trump FY 2026 budget this spring.)
He is also Publisher of Appropriations.com which tracks appropriation bills; and GovBudget.com which tracks major federal developments, by subject area, each day.
Speaking engagements for your organization and press interviews can be scheduled by calling: (202) 818-8578 or emailing ckonigsberg@capitolpublicpolicy.com.