On his first day in office, President Donald Trump unleashed Elon Musk and his Department of Government Efficiency, which was created “to maximize governmental efficiency and productivity.”
Unknown to most Americans, there is an existing instrumentality of the U.S. government, the Government Accountability Office. The office is headed by the Comptroller General, which shall “investigate all matters related to the receipt, disbursement and use of public money” and “analyze expenditures of each executive agency” that it “believes will help Congress decide whether public money has been used and expended economically and efficiently.”
The question people should be asking is: Where is Comptroller General Gene Dorado, amid all this chaos?
Redundancy aside, DOGE seems to be violating countless laws and doing serious damage to our country. Much of what DOGE is doing is shrouded in secrecy. The lack of information has been a stumbling block in the spate of litigation challenging various DOGE-inspired actions, but GAO has the clear authority to obtain the records from the agencies that DOGE has invaded to find out what has happened and on what basis.
It also could assess the legality of Trump’s wholesale cancellation of contracts and grants, as well as determine whether his “Fork in the Road” buyout of federal employees is legal, since he appears to be offering to pay them for six months for doing no work.
Of the many laws the president has violated, the most prominent and most significant is the Impoundment Control Act of 1974. It was enacted by Congress in response to the claims by President Richard Nixon, similar to claims by Trump, that the president has inherent authority to refuse to spend money Congress has appropriated.
The Supreme Court ruled that the president had no such power with respect to water pollution control funds, but the Impoundment Control Act expressly forbids refusal to spend appropriated funds, with two exceptions. The president may defer spending money for a brief period, as long as he makes clear that he plans to spend it during the current fiscal year. But if the president wishes to rescind some spending entirely, he may hold back the spending for no more than 45 days, at which point Congress must amend the law allowing him to rescind appropriated funds
The act mandates that presidents send Congress a detailed message when seeking such recissions, including the amount to be rescinded, the policy or other reasons for doing so, and the “estimated fiscal, economic, and budgetary effect” of the rescission.
To the surprise of no one, Trump has sent no such message to Congress, despite his orders to cancel contracts, halt payments for foreign aid and other programs and fire employees with no plans to replace them immediately.
Not only is the Impoundment Control Act the law of the land, but two decades after it was passed, the Supreme Court held that the Line Item Veto Act, which purported to give the president a limited power not to spend money that Congress had voted to spend, was unconstitutional.
Changes in laws providing for spending of federal funds, the court held, could only be made by a new law, passed by both Houses and signed by the president, and Congress could not authorize the president to make such changes unilaterally, even in a statute duly enacted into law.
The conclusion is clear: If the president cannot impound funds with the permission of Congress, he cannot possibly have the authority to do so when Congress has expressly denied him that power under the Impoundment Control Act.
Congress did not trust the president to follow the act without oversight, and so it directed the comptroller general to monitor the rescission reports filed (or not filed) by the president. Subject to certain requirements, it also authorized the comptroller general to sue the president and others if they failed to make available money that Congress had appropriated.
Many victims of the president’s unlawful withholding of funds have sued to restore them. But where is the comptroller general?
Unlike many federal officials, the comptroller general does not have to fear that President Trump can fire him, because he works for Congress. The law gives the office a single 15-year term. He can be removed only for a limited set of reasons, after an opportunity for a hearing, and then only with the affirmative vote of both Houses of Congress.
If the comptroller general actually started to enforce the Impoundment Control Act, President Trump might demand that Congress go through the statutory removal process. But since the term of the current comptroller general expires on Dec. 22, he has almost nothing to lose, and a great deal to gain, by carrying out his statutory duties to prevent the wholesale violations of the act that are in plain sight for all to see.
Alan B. Morrison is an associate dean at George Washington University Law School.
