The Lawfare Podcast

Episode: Lawfare Daily: Pocket Rescissions in Congress

Date: September 2, 2025
Host: Molly Reynolds (Lawfare, Brookings)
Guests: Zach Price (UC Law San Francisco), Phil Wallach (American Enterprise Institute)

Episode Overview

This episode explores the concept of “pocket rescissions” in the U.S. congressional appropriations process—an executive branch maneuver to defer or cancel appropriated funds by exploiting the expiration of budget authority at fiscal year-end. Molly Reynolds, with guests Zach Price and Phil Wallach, delves into the statutory mechanics, legal arguments for and against pocket rescissions, the implications for congressional power, and possible congressional responses.

The discussion touches on the broader context of the executive branch’s increasing influence over federal spending, potential constitutional issues, and the practical effects on the appropriations process and bargaining within Congress.

Key Discussion Points & Insights

1. Pocket Rescissions vs. Regular Rescissions

[03:06 – 08:11]

• Phil Wallach provides a primer:

  • Rescissions (under the Impoundment Control Act of 1974) let the President formally propose the cancellation of appropriated funds, but Congress must approve within 45 days, else the funds must be spent.
  • Pocket rescissions involve timing a rescission proposal so that the 45-day decision window overlaps with the expiration of the funds’ availability, ensuring they expire before Congress can act—effectively canceling funding without Congressional approval.
  • "The executive branch is jamming its rescission request up against that expiration date… you essentially make an impoundment." [05:39 – Wallach]

• Zach Price adds legal context:

  • The Act distinguishes between rescissions (permanent cancellations) and deferrals (temporary delays).
  • Deferrals can’t extend past the fiscal year unless covered by a rescission proposal.

2. Legal & Constitutional Arguments

[08:11 – 19:16]

• Zach Price:

  • Statute is designed to restrict—not expand—executive impoundment power.
  • "If you think about the overall purpose and structure of the statute, it’s manifestly designed to limit impoundments, not to give the President a kind of freestanding authority to cancel funds." [09:04 – Price]
  • The administration’s justification is not squarely supported by text; ambiguous areas should be resolved in favor of congressional intent.

• Phil Wallach:

  • There is some statutory ambiguity; OMB leans on lack of explicit limitation in the rescission provision (Section 1012) and historic examples from Ford/Carter years.
  • "Congress… never did anything about it." [12:32 – Wallach]
  • Congress could easily clarify the law to block pocket rescissions.

• Constitutional Considerations:

  • Both speakers argue pocket rescissions violate principles of bicameralism and presentment by allowing the executive to effectively nullify laws unilaterally.
  • "This is basically a way of getting around the necessity of having Congress be the one to fix statutory requirements." [17:54 – Wallach]
  • Unlimited executive discretion would fail the Supreme Court’s “intelligible principle” test for legislative delegation. [18:21 – Price]

3. Historical Context & Precedent

[14:27 – 18:21]

• Historical examples are limited, contested, and do not establish a robust justification for pocket rescissions.
• Congress has sometimes moved to reverse impoundments, signaling opposition.

4. Implications for Congressional Power & Institution

[20:42 – 28:31]

• Wallach:

  • Pocket rescissions threaten the balance of power, undermining Congress’s central “power of the purse.”
  • "It really completely disrupts the constitutional balance… it sort of makes it hard to understand what Congress is even doing in the spending debates." [22:06 – Wallach]
  • Executive could negate Congress’s spending decisions, possibly shrinking Congress’s influence over time.

• Price:

  • Pocket rescissions threaten congressional bargaining and logrolling—which promote buy-in and effective coalition building.
  • "You agree to some overall package that you can live with and then you find out that the President just zeroed out the parts that you like." [24:22 – Price]

• Molly Reynolds:

  • Even regular rescissions, as used recently to cancel $9B in spending (at 51-vote Senate threshold), could destabilize the appropriations process if overused. [25:35]

5. Broader Context: The Rise of Appropriations Presidentialism

[28:31 – 31:41]

• Price:

  • Administration pursuing a broad strategy to maximize executive discretion in spending (“appropriations presidentialism”).
  • Weakening Congressional power of the purse changes separation of powers and risks increasing executive dominance:
    • "Making this a more unilateral executive function… could be a big change in how separation of powers works." [29:35 – Price]

• Wallach:

  • OMB Director Vogt has expressed a desire for less bipartisan appropriations, more White House influence.
  • "He’s quite open in his contempt for the way things have been." [31:13 – Wallach]

• Example: Pocket rescission strategy invoked in Supreme Court litigation over USAID funds—underscoring its relevance to disputes over federal grants.

6. Remedies: What Can Congress Do?

[33:14 – 38:08]

• Wallach:

  • Congress can reappropriate expired funds, revise Impoundment Control Act to prohibit pocket rescissions—e.g., barring rescission requests within a certain window before expiration.
  • Congress could tighten appropriations language to close loopholes, or (if trust erodes) shift to micromanaging appropriations.

• Price:

  • Congress retains strong tools—reappropriation, leveraging administration priorities—but depends on institutional will to act collectively.
  • "If that doesn’t work anymore, then we’re in a new era in a lot of ways." [36:08 – Price]
  • Political process can be more effective than litigation; Congress’s lack of pushback so far illustrates broader political challenges.

Notable Quotes & Memorable Moments

• On the fundamental threat:

  “For Congress to be the co equal or senior policymaker, we can’t have a system in which the executive just gets to cancel what they do. And that’s pocket rescissions…”
  —Phil Wallach [02:20]

• Legal bottom line:

  “It would be bizarre to read [the Impoundment Control Act] as creating a pathway to do impoundments at will.”
  —Phil Wallach [13:28]

• Pragmatic note on past practice:

  “If anything, the practice has repudiated this understanding… It’s certainly not the case it’s become a kind of accepted feature of the budget process.”
  —Zach Price [16:37]

• On the risk to congressional process:

  “You agree to some overall package that you can live with and then you find out that the President just zeroed out the parts that you like.”
  —Zach Price [24:22]

• On administration’s open strategy:

  “OMB Director Vogt was quoted a few weeks ago saying we really need to make the appropriations process less bipartisan… He’s quite open in his contempt for the way things have been.”
  —Phil Wallach [31:13]

Key Timestamps

• 03:06: Wallach explains the mechanics of rescissions and pocket rescissions.
• 08:42: Price details arguments why pocket rescissions are unlawful.
• 11:24: Wallach presents the administration’s statutory argument for pocket rescissions.
• 14:27: Price rebuts OMB’s argument, details historical examples.
• 17:28: Wallach: Bicameralism and presentment concerns.
• 18:21: Price: Nondelegation doctrine implications.
• 22:06: Wallach: Impact on congressional power and constitutional balance.
• 24:22: Price: Effects on congressional bargaining and process.
• 28:31: Reynolds situates the issue in the broader appropriations context.
• 29:02: Price describes “appropriations presidentialism.”
• 31:13: Wallach on Vogt’s intentions and philosophy.
• 33:14: Wallach on congressional remedies: legislation, process, norms.
• 35:50: Price: Congressional powers and limits; need for collective will.
• 37:26: Wallach: Congressional inaction as an enabler of executive overreach.

Conclusion

This episode provides a comprehensive look at pocket rescissions as an emerging battleground in the separation of powers. The legal ambiguity surrounding the practice, coupled with broader trends toward executive discretion, poses significant risks to Congressional authority over federal spending. While remedies exist, the effectiveness of Congressional response hinges on political will and institutional cohesion—challenges that the current climate may make difficult to overcome.

Recommended Further Reading:

• Phil Wallach’s analysis on pocket rescissions (Lawfare)
• Protect Democracy’s review of historical precedent
• Forthcoming essay by Price, Lawrence, and Pasakoff on “appropriations presidentialism”