During the confirmation hearings of the Office of Management and Budget director and deputy director for budget earlier this year, lawmakers pressed Russ Vought and Dan Bishop about whether they would comply with the Impoundment Control Act.

The budget rules of the road require Congressional approval if OMB decides not to spend money appropriated in law.

While both Vought and Bishop promised to comply with the law, a new decision by the Government Accountability Office casts further doubt on whether OMB will follow the Impoundment Control Act of 1974.

GAO found the Transportation Department’s Federal Highway Administration (FHWA) violated the law when it decided not to give out money under the National Electric Vehicle Infrastructure (NEVI) Formula Program, which Congress authorized and President Joe Biden signed into law as part of the 2021 Infrastructure Investment and Jobs Act (IIJA).

“[W]e conclude that DoT violated the recording statute, in each of fiscal years 2022 through 2025, when it treated signed project agreements as the point of obligation for the NEVI Formula Program, rather than the point at which IIJA made funds for the program available for obligation,” GAO stated. “In addition, DOT’s withholding of funds from expenditure pursuant to FHWA’s memorandum constitutes a deferral, as defined by the ICA. However, the ICA’s fourth disclaimer prohibits withholding from obligation or expenditure funds appropriated for programs for which there is a mandate to spend therefor. Consequently, DoT is not authorized under the ICA to withhold these funds from expenditure and must continue to carry out the statutory requirements of the program. If DoT wishes to make changes to the obligation and expenditure of funds appropriated under the NEVI Formula Program, it must propose funds for rescission or otherwise propose legislation to make changes to the law for consideration by Congress.”

GAO said while the ICA lets agencies defer or delay spending appropriated funding, Congress mandated DoT spend money in the NEVI Formula Program and therefore its funds cannot be deferred.

“IIJA prescribes a formula by which NEVI Formula Program funds are to be allocated, requires that the Secretary give notice before they withdraw or withhold funds, prescribes an opportunity for states or territories to appeal the decision and uses language mandating the allocation of funds to states or territories,” GAO stated. “Because IIJA constitutes a mandate to provide amounts appropriated for the NEVI Formula Program to the states, the amounts currently available for the program are subject to the ICA’s fourth disclaimer and may not be withheld from expenditure under the ICA.”

OMB disagrees with GAO

This decision by GAO is the first of dozens of reviews. Comptroller General Gene Dodaro told Senate lawmakers in early May that the oversight organization had 39 ongoing ICA investigations, including another one at the State Department.

Vought rejected GAO’s decision.

“Just so we are all clear over the next several months. The Government Accountability Office or GAO is a quasi-independent arm of the legislative branch that played a partisan role in the first-term impeachment hoax. They are going to call everything an impoundment because they want to grind our work to manage taxpayer dollars effectively to a halt. These are non-events with no consequence. Rearview mirror stuff,” Vought posted on “X” on May 22.

Lawmakers, meanwhile, expressed continued concerns about the Trump administration’s adherence to the Impoundment Control Act.

“This GAO decision shows President Trump is breaking the law and actively making America’s infrastructure less safe at a time when communities across the country need continued investment to make sure they are not left behind, exactly what the historic bipartisan infrastructure law was designed to prevent,” said Rep. Rosa DeLauro (D-Conn.), ranking member of the Appropriations Committee in a statement.

Sens. Patty Murray (D-Wash.), ranking member of the Appropriations Committee, and Chris Van Hollen (D-Md.), ranking member of Subcommittee on Commerce, Justice, Science, and Related Agencies, echoed similar concerns and sent a letter to GAO stressing the need to continue analyzing possible ICA violations.

Senate Appropriations Committee chairwoman Patty Murray (D-Wash). (AP Photo/Manuel Balce Ceneta)

“As Congress begins deliberations on the fiscal year 2026 appropriations bills, it is critical that we understand how the administration is executing current law, and whether, through programmatic delay or illegal impoundment, funds are in danger of expiring without obligation,” the Senators wrote. “If the administration is breaking the law without consequence, the fundamental separation of powers and Congressional power of the purse is under serious threat. We encourage you to continue to report to Congress as quickly as possible on any violations of the ICA. In the event of a violation, Congress has also invested GAO with the authority to file suit to ensure funds are spent in accordance with the law.”

Philip Joyce, a professor of public policy in the University of Maryland School of Public Policy, said under the Impoundment Control Act, GAO has the authority to file a lawsuit on behalf of Congress against the administration to enforce the law.

A GAO spokesperson said it has no plans to pursue a case at this time.

“Our legal decisions do not take a position on the policy goals of the program,” the spokesperson said. “We only examine the procedural issues and compliance with the law. Changes to these policies and priorities can be addressed through the legislative process with Congress and the administration.”

Does Congress push back?

Joyce said this first decision by GAO wasn’t out of the ordinary, but it does set the stage for how Congress will react to other possible violations.

“One of question to me is GAO simply providing information to Congress and do they want to do something or not? Or is GAO taking any legal action?” Joyce said in an interview with Federal News Network. “The other thing I’m looking at through this whole process is at what point does Congress stand up for itself? The fact that President Trump is Republican and Congress is controlled by Republicans that isn’t the end of the story. If the practice now is the President can pick and choose what he can spend money on, then Congress has ceded huge power to the President, and it’s not just this President, but future ones as well.”

Joyce said if lawmakers don’t stand up now, they will set a precedent for others to take the same stand.

“It’s short sighted by members of Congress who say we agree with this administration’s decision so it’s OK to withhold spending,” he said. “Once they have given away power of purse, they have given it away and not just to President Trump.”

Joyce added that OMB easily could’ve submitted a request to Congress to rescind or withhold this DoT funding, it likely would’ve been approved.

The White House is expected to send its first rescission package to Congress next week.

Joyce said while it’s reasonable to think Congress would approve some rescissions, it’s far from automatic.

“The rub is basically what the courts have found consistently, and the last time we had a lot of these issues was during the Nixon administration, is that there are ways for the administration to legally decide not to spend money, but it’s pretty narrowly prescribed,” he said. “GAO is saying, there was an appropriations that was intended to provide funds for this purpose and the Trump administration doesn’t like this thing so they had to ask Congress to cancel the appropriation, which is a process in the Impoundment Control Act. The president can’t do it unilaterally and decide not to spend the money.”

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