Power of the Purse: A 120th Congress Appropriations Guide
The Power of the Purse: How the 120th Congress Can Use Appropriations to Restore Checks and Balances
By Corey J. Biazzo, Esq., Biazzo Law Government Oversight Program · November 11, 2026
In short: The Constitution says no money may be drawn from the Treasury except by appropriations made by law. That makes Congress's spending power its most durable check on the executive branch, and it works differently from every other tool. Passing a new law over a veto takes two-thirds of each chamber. But the government cannot spend money Congress has not appropriated, so either chamber can refuse to fund what it will not support, and every spending bill the President needs becomes a negotiation. The 120th Congress will write or finish the spending bills for fiscal years 2027 and 2028. It can use them to attach conditions, fence funds until agencies comply, require reporting and transparency, and respond to impoundments, the unlawful withholding of money Congress has already appropriated. This guide explains how.
Key fact | Detail |
Constitutional basis | Appropriations Clause, Art. I, § 9, cl. 7; taxing and spending power, Art. I, § 8 |
Current funding | A continuing resolution (P.L. 119-103, signed Sept. 2, 2026) funds most of the government at FY2026 levels through December 11, 2026 |
FY2027 | Began Oct. 1, 2026; none of the 12 regular bills enacted as of the CR |
FY2028 | Begins Oct. 1, 2027; the President's budget is due early February 2027 |
Impoundment law | Impoundment Control Act of 1974 (2 U.S.C. §§ 681–688): deferrals and rescission proposals; 45-day rule for rescissions |
GAO's role | Reviews special messages, issues impoundment decisions, and may sue to release withheld funds |
Recent GAO findings | Several violations found in 2025, including at NIH, FEMA, the Institute of Museum and Library Services, and the EV charger program |
"Pocket rescissions" | GAO says they are illegal; the Supreme Court let the administration withhold about $4 billion in foreign aid in Sept. 2025 without deciding the question |
Apportionment transparency | Federal law requires OMB to post apportionments publicly; courts ordered the site restored in 2025 and spend plans posted in Jan. 2026 |
Our proposal | Power of the Purse and Taxing Power Restoration Act, one of our eight model bills |
What does the Constitution say about the power of the purse?
The text is short: "No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law" (Art. I, § 9, cl. 7). In The Federalist No. 58, James Madison called the power over the purse "the most complete and effectual weapon" with which the people's representatives could obtain "a redress of every grievance."
The Supreme Court and lower federal courts have given that text real force:
No spending without a law. "Payments of money from the Federal Treasury are limited to those authorized by statute" (Office of Personnel Management v. Richmond, 1990). In that case, a federal employee's mistaken advice could not obligate the Treasury to pay benefits Congress had not authorized. The Court explained that otherwise executive officials could "obligate the Treasury contrary to the wishes of Congress."
What counts as an appropriation. In CFPB v. Community Financial Services Association of America (2024), the Court held that "an appropriation is simply a law that authorizes expenditures from a specified source of public money for designated purposes," and upheld the CFPB's standing funding mechanism. The lesson cuts both ways: Congress controls the purse by law, and it has wide latitude in how it designs that law, including how specific and how durable its conditions are.
No refusing to spend what Congress required. When the Nixon administration allotted less than the full sums the 1972 Clean Water Act amendments authorized for sewage-treatment grants, the courts held the statute required full allotment (City of New York v. Train, D.C. Cir. 1974, affirmed in Train v. City of New York, 1975). The ruling rested on the statute, not the Constitution, which is why clear statutory text matters.
Policy disagreement is not enough. The D.C. Circuit, in an opinion by then-Judge Brett Kavanaugh, held that the President "may not decline to follow a statutory mandate or prohibition simply because of policy objections" (In re Aiken County, 2013). The case required the Nuclear Regulatory Commission to keep spending appropriated funds on a licensing process it wanted to abandon. A footnote added that even a President who wants to spend less than Congress appropriated "does not have unilateral authority to refuse to spend the funds" and must instead propose a rescission.
What can't the power of the purse do?
Spending conditions are powerful, but they have limits that keep them lawful and nonpartisan:
No targeting individuals. In United States v. Lovett (1946), the Supreme Court struck down an appropriations rider that cut off the salaries of three named federal employees as an unconstitutional bill of attainder. Conditions should regulate offices, programs, and conduct, not named people.
Other constitutional limits still apply. A spending condition cannot accomplish what the Constitution otherwise forbids. Conditions that intrude on powers the Constitution gives the President alone, such as the pardon power, are vulnerable. Where Congress and the President share power, as with war, foreign affairs, and the management of agencies, Congress's spending authority is at its strongest.
The President can still veto a spending bill. The leverage comes from the need to fund the government, not from any power to bypass the President. That is why bipartisan support matters even here.
What is impoundment, and what does the Impoundment Control Act require?
An impoundment happens when the executive branch, through action or inaction, delays or withholds money Congress has appropriated. After President Nixon impounded billions of dollars, Congress passed the Impoundment Control Act of 1974. It allows only two kinds of withholding, both with notice to Congress:
Type | What the President may do | Limits |
Deferral (2 U.S.C. § 684) | Temporarily delay spending, after sending Congress a special message | Permitted "only" to provide for contingencies, to achieve savings from changed requirements or greater efficiency, or as specifically provided by law; "No officer or employee of the United States may defer any budget authority for any other purpose." A deferral may not extend beyond the end of the fiscal year. |
Rescission proposal (2 U.S.C. § 683) | Ask Congress to cancel funds, by special message | The funds "shall be made available for obligation" unless Congress completes action on a rescission bill within 45 calendar days of continuous session. Funds released this way "may not be proposed for rescission again." |
GAO's role. The Government Accountability Office reviews each special message, issues legal decisions on suspected impoundments, and may sue in federal court to make withheld funds available, after filing an explanatory statement with the Speaker and the President of the Senate and waiting 25 calendar days of continuous session (2 U.S.C. § 687). In April 2025, the Comptroller General told Congress GAO had 39 impoundment investigations under way. During 2025, GAO found violations involving, among others, the Department of Transportation's electric-vehicle charger program, the National Institutes of Health, the Institute of Museum and Library Services, and FEMA. It found no violation in other cases, such as an Interior Department water-recycling pause. GAO calls the balls and strikes either way.
What GAO decisions do, and don't do. A GAO finding is not a court judgment, and the Act imposes no penalty. But GAO decisions give Congress an independent legal record, they have often led agencies to release funds, and they support appropriations responses and lawsuits.
What is a pocket rescission?
A "pocket rescission" is a rescission proposal sent so close to the end of the fiscal year that the 45-day withholding period outlasts the funds. If Congress does nothing, the money expires unspent. GAO has concluded that the Act does not allow withholding funds proposed for rescission through their expiration date.
On August 28, 2025, the President proposed canceling about $4.9 billion in foreign aid 33 days before the fiscal year ended. A federal district judge ordered the funds spent. On September 26, 2025, the Supreme Court stayed that order, allowing the administration to withhold about $4 billion. It concluded the Act likely barred the lawsuit brought by the aid groups, without deciding whether pocket rescissions are legal. On September 25, 2026, the President proposed another cancellation of nearly $1 billion; GAO responded that the approach "subverts both the constitutional process for enacting federal law and Congress's constitutional power of the purse."
For Congress, the lesson is practical: if private parties cannot sue and GAO rarely does, Congress must protect its own appropriations, through the text of its spending bills.
Lawful rescissions are different. Congress can, and did, approve rescissions by ordinary law, as with the Rescissions Act of 2025. That is the process the Act contemplates: the President proposes, and Congress decides.
Three more provisions every office should know.
Pending proposals carry into the next Congress. If Congress adjourns for good before a rescission proposal's 45-day clock runs out, the message is "deemed to have been retransmitted on the first day of the succeeding Congress," and the clock starts over (2 U.S.C. § 682(5)). Any rescission proposal still pending when the 119th Congress ends will land in front of the 120th.
The Act decides no constitutional questions. Its disclaimer says nothing in it may be construed as "asserting or conceding the constitutional powers or limitations of either the Congress or the President," or as superseding any law that requires funds to be obligated (2 U.S.C. § 681). Arguments about impoundment power therefore rest on the Constitution and on the specific spending statute, not on the Act alone.
Congress once tried a line-item cancellation power. The Line Item Veto Act of 1996 added cancellation authority to the same chapter. The Supreme Court held that its cancellation procedures, used in that case to cancel a direct-spending provision and a tax benefit, violated the Presentment Clause, Art. I, § 7, cl. 2, in Clinton v. City of New York (1998), and those provisions have since been omitted from the U.S. Code (2 U.S.C. §§ 691–692). Critics of pocket rescissions argue they would achieve a similar result without a vote of Congress.
What are OMB apportionments, and why do they matter?
Appropriated money does not flow to agencies automatically. The Office of Management and Budget first "apportions" it, dividing it by time period or project, and can attach footnotes that set conditions on its use. Apportionment is where an impoundment can quietly begin: a footnote that holds funds "pending review" can freeze a program without any public announcement.
That is why Congress, starting in fiscal 2022 and then permanently, required OMB to post apportionment documents on a public website within two business days of approval, with explanations of footnotes.
What happened. On March 24, 2025, OMB took the public apportionment website down, telling Congress the documents contained "sensitive, predecisional, and deliberative information." Citizens for Responsibility and Ethics in Washington (CREW) and Protect Democracy sued. On July 21, 2025, a federal district court held that removing the database violated the law and ordered it restored. The D.C. Circuit denied OMB's request for a stay on August 9, 2025, and OMB restored the site later that month. CREW then reported that many apportionments incorporated unpublished "spend plans." On January 28, 2026, the court ordered OMB to post spend plans incorporated by reference into binding apportionment documents. OMB's appeal was still pending in the D.C. Circuit as of mid-2026.
What Congress can do with apportionments:
Monitor the public database weekly for footnotes that delay or condition funds, and ask GAO to review suspected impoundments promptly.
Write the posting requirement, including spend plans and footnote explanations, into each FY2027 and FY2028 spending bill and into permanent law with an enforcement mechanism.
Require agencies to notify the Appropriations Committees within a set number of days when funds are not obligated on schedule.
Require OMB to provide apportionment documents to GAO on request. In at least one 2025 decision, GAO noted that an agency did not provide apportionment schedules it requested.
What tools does a spending bill give Congress?
Tool | How it works | Example use |
Limitation ("no funds may be used") | Bars spending on a specific activity | No funds for an activity Congress has not authorized, or for removing a person from the country while a court order forbids it |
Condition or "fence" | Makes funds available only after an agency meets a requirement | A portion of an office's operating funds withheld until it complies with a subpoena or delivers a required report |
Line-item specificity | Appropriates by program and amount instead of in lump sums | Reduces room for reprogramming money to purposes Congress did not approve |
Notice and reprogramming rules | Requires advance notice to the Appropriations Committees before money is moved | Limits transfers between accounts without congressional review |
Obligation deadlines and reporting | Requires funds to be obligated by a date, with reports on delays | Exposes slow-walking and supports GAO review |
Transparency requirements | Requires public posting of apportionments, spend plans, and footnotes | Makes impoundments visible early |
Anti-impoundment provisions | Declares that funds must be made available for obligation and that rescission proposals filed late in the year do not authorize withholding | Responds directly to pocket rescissions |
Funding for oversight | Funds GAO, inspectors general, and congressional committees | Builds Congress's own capacity to investigate |
Limits to keep in mind.
Most riders last only for the fiscal year of the bill unless written into permanent law.
Conditions must be clear. Agencies will read ambiguity in their own favor, and courts generally require a clear statement before finding that Congress meant to restrict a program.
Conditions must respect the guardrails above: no bills of attainder, and no intrusion on powers the Constitution assigns only to the President.
Riders can make a bill harder to pass. Narrow, well-defined conditions with bipartisan support survive negotiations; sweeping ones often do not.
Why spending bills are different from stand-alone reform. A stand-alone reform bill can simply be vetoed. A spending bill must eventually pass in some form, or the government shuts down. That makes appropriations the place where a bipartisan majority can attach durable, narrow protections that would never survive a veto on their own. It is also why both parties, when in the majority, have used spending bills to press the executive branch.
What happens with the FY2027 and FY2028 spending bills?
Date | Event | What it means |
Dec. 11, 2026 | The current continuing resolution expires | The outgoing 119th Congress must pass full-year bills, another CR, or face a shutdown |
Jan. 3, 2027 | The 120th Congress convenes | If FY2027 is still on a CR, the new Congress finishes it; any unfinished bills expire and must be reintroduced |
Early Feb. 2027 | The President's FY2028 budget request is due | Starts hearings on agency budgets; committees request justifications and apportionment data |
Spring 2027 | Budget hearings and oversight | Agency heads testify; committees document impoundments, reprogrammings, and compliance problems |
Late spring to summer 2027 | Subcommittee and full-committee markups | Conditions and transparency provisions are written into bill text |
Oct. 1, 2027 | FY2028 begins | Full-year bills, or another CR, must be in place |
A practical plan for the 120th Congress:
Start with what failed. Use GAO decisions, court rulings, and the apportionment database to list every program where enacted funds were delayed, frozen, or redirected in FY2025–FY2027.
Hold hearings tied to the bills. Budget hearings are oversight hearings. Ask each agency, on the record, about apportionment footnotes, unobligated balances, and compliance with GAO decisions.
Write narrow, durable conditions. Favor transparency, reporting, and anti-impoundment language that applies to any administration over provisions aimed at a single policy fight.
Make them permanent where possible. Move proven riders into permanent law, through the appropriations bills themselves or stand-alone reforms like our Power of the Purse and Taxing Power Restoration Act.
Protect Congress's own watchdogs. Fund GAO, inspectors general, and committee investigative staff adequately.
Avoid brinkmanship. Shutdowns hurt service members, federal workers, contractors, and the public. The goal is a negotiated bill that restores Congress's control of spending, not a crisis.
Members-elect should engage now. Whatever the outgoing Congress passes by December 11 sets the starting point for FY2027. Incoming members and their staffs can review the pending bills, the CR's terms, and GAO's open impoundment work before they are sworn in.
Why this should be bipartisan
Every administration of the last half-century has pushed against Congress's spending power in some way, and Congresses led by both parties have answered with the same tools. The Impoundment Control Act was passed in 1974 with broad bipartisan support. GAO has found violations under more than one administration, including the first Trump administration's 2019 hold on Ukraine security assistance, and it has cleared agencies when the facts warranted, including the Biden administration's 2021 pause of border-wall construction funds. A Republican member who wants Congress to control border-security funds and a Democratic member who wants Congress to control foreign-aid funds are defending the same principle: the people's representatives decide how the people's money is spent. Country over Party. Patriot over Partisan.
Let's Talk
Any member office or committee, of either party, is welcome to use this guide. We offer free briefings, sample anti-impoundment and transparency provisions, and drafting help for our Power of the Purse and Taxing Power Restoration Act. Contact us or call (703) 297-5777.
Companion resources for the 120th Congress
How to Enforce a Congressional Subpoena When the Justice Department Won't (update to the post's final URL)
Open Letter to the 120th Congress: Restore Checks & Balances
Model Articles of Impeachment Against President Trump, Article II (IRS settlement and proposed Judgment Fund payout)
Frequently asked questions
What is the power of the purse? Congress's constitutional authority to tax and to decide how federal money is spent. Under the Appropriations Clause, no money may leave the Treasury without an appropriation made by law.
Can the President refuse to spend money Congress appropriated? Only within the Impoundment Control Act's limits. The President may propose rescissions and withhold funds for 45 days of continuous session while Congress considers them, or defer spending for narrow, non-policy reasons. Withholding for policy disagreement outside those procedures is an unlawful impoundment, as GAO has found in several 2025 decisions.
What is a pocket rescission? A rescission proposal sent so late in the fiscal year that the funds expire during the 45-day review period. GAO says the Act does not allow it. In September 2025, the Supreme Court allowed the administration to withhold about $4 billion in foreign aid without deciding whether the practice is legal.
Does Congress need a veto-proof majority to use the power of the purse? Not to refuse funding: no money can be spent unless Congress appropriates it. But conditions written into a spending bill still require the President's signature or a veto override, so they succeed through negotiation and bipartisan support.
What are OMB apportionments? OMB's division of appropriated funds into amounts agencies may use over time or by project. Federal law requires OMB to post them publicly; a court ordered the website restored in 2025 and, in January 2026, ordered related spend plans posted.
When are the next spending deadlines? The current continuing resolution expires December 11, 2026. Fiscal year 2028 begins October 1, 2027.
This article is for general informational purposes only and is not legal advice. Reading it does not create an attorney-client relationship. The Biazzo Law Government Oversight Program is nonpartisan and does not endorse candidates or parties. Budget figures, deadlines, and litigation status change frequently; offices should confirm current status with the Appropriations Committees, CRS, and GAO. Biazzo Law sought to participate as amicus curiae in Trump v. Internal Revenue Service, which involved the proposed Judgment Fund payment discussed in our model articles; its motions for leave were denied.
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