Highlights from this edition of Checks and Balances include the Trump Administration’s announcement that it is using a budgetary procedure called pocket rescission, and a dispute about rulemaking procedure between the Wisconsin governor and legislature.

In Washington

Trump Administration uses pocket rescission to withhold appropriated funds

On Aug. 29, the White House announced that it was cancelling $4.9 billion in Congressionally-appropriated foreign aid with a procedure known as pocket rescission.

What is pocket rescission?

Rescission, in the context of presidential power, is the process by which the president can request the cancellation of funds previously appropriated by Congress. The president can propose rescission of funds in their annual budget request, or, under the Congressional Budget and Impoundment Control Act of 1974 (ICA), the Office of Management and Budget (OMB) may send a special message to Congress requesting the rescission of funds. When Congress receives either type of rescission request, it has 45 days of continuous session to vote to approve, disapprove, or amend the request. Under the ICA, if Congress does not approve the request within 45 days, the OMB must release the funds.

A pocket rescission happens when the president requests the rescission of unspent funds fewer than 45 days before the funds are scheduled to expire (usually Sept. 30, the end of the federal fiscal year). The OMB may withhold funds proposed for rescission for up to 45 days while Congress considers the request. If Congress does not vote against the rescission before the funds expire, they will lapse unspent, having been effectively cancelled by the president without needing congressional approval. This practice is called ‘pocket rescission’ in an analogy to the (unrelated) pocket veto power, under which the president can use the end of a congressional session to disapprove of a bill without formally vetoing it.

A president has not used pocket rescission since the 1970s. In 1975, President Gerald Ford (R) sent a rescission request to Congress for two accounts that were set to expire within the 45-day window. In 1977, President Jimmy Carter (D) also submitted rescission requests for two accounts that were set to expire. In both cases, Congress later voted on the rescissions after the funds expired, rejecting the 1975 rescissions and approving the 1977 ones. In the 1975 case, Congress also later voted to extend the lapsed appropriations for another fiscal year, overriding a presidential veto in the process.

What are the arguments?

The legality of pocket rescission has not had a final ruling by a court, and is disputed by legislative- and executive-branch institutions. In 2018, the Government Accountability Office (GAO), a nonpartisan independent agency within the legislative branch, issued an opinion finding that the ICA does not allow pocket rescission. The executive branch Office of Management and Budget disputed this opinion in a 2018 letter to the GAO, arguing that pocket rescission is permissible under the ICA and that the GAO had not disputed the validity of pocket rescissions when they were used in the 1970s. This difference in opinion has continued into the second Trump administration, with an Aug. 6 GAO blog post reiterating the 2018 opinion that pocket rescissions are invalid under the ICA, and OMB General Council Mark Paoletta responding on X that “GAO is wrong on pocket rescissions (the Impoundment Control Act text specifically allows for them).”

Members of Congress from both parties criticized the pocket rescission announcement. Senate Minority Leader Chuck Schumer (D) called the move “an unlawful gambit to circumvent the Congress all together,” and Senator Lisa Murkowski (R) said the rescission was unlawful and that “Congress alone bears the constitutional responsibility for funding our government, and any effort to claw back resources outside of the appropriations process undermines that responsibility.” 

Pointing to President Carter’s (D) use of pocket rescission in 1977, Senator Chuck Grassley (R) said “all I can tell you is in 1977 Carter did it and he did it on the advice of the GAO recommendation and since then GAO has changed their mind, so I guess it’s all up in the air.” An OMB spokesperson defended the move, saying that the Trump administration is on “firm legal ground” and that “a pocket rescission is a standard rescission,” with a precedent from “when Presidents Ford and Carter used pocket rescissions in the 1970s.” Defending the validity of pocket rescissions earlier this year, OMB director Russell Vought argued that a “pocket rescission is no different than a normal rescission, except for the timing of when it occurs.”

The Aug. 29 announcement came after the DC Circuit Court of Appeals lifted an injunction that had blocked the Trump administration from freezing foreign aid funds, including the $4.9 billion. On Sept. 3, a federal district court judge issued an injunction requiring the Trump administration to spend $11.5 billion in appropriated foreign aid, including the $4.9 billion, by the Sept. 30 end of the fiscal year. The US Supreme Court temporarily lifted this injunction on Sept. 9.

What is the background?

Before Congress enacted the ICA in 1974, presidents commonly practiced impoundment, by refraining from spending appropriated funds. The ICA effectively banned impoundment, because it requires the OMB to release funds at the end of the 45-day Congressional review window if Congress does not approve a rescission request.

Earlier this year, President Trump (R) submitted a package of requested rescissions to Congress, which the House of Representatives approved 216-213 and the Senate approved 51-48. Trump signed the package into law on July 24. The package rescinded approximately $8 billion in appropriated foreign aid funding and $1 billion appropriated for public broadcasting. A rescission of approximately $400 million appropriated for the President’s Emergency Plan for AIDS Relief, proposed in the original package, was not approved by Congress.

Want to go deeper?

• Congressional Budget and Impoundment Control Act of 1974
• Office of Management and Budget
• Government Accountability Office

In the states

Wisconsin governor, lawmakers clash over rulemaking after court ruling

What’s the story?

Gov. Tony Evers (D) told state agencies in August they can bypass the legislative review committee and instead finalize rules once he approves them. Evers’ directive followed a July Wisconsin Supreme Court decision that struck down the Legislature’s ability to block or indefinitely suspend administrative rules. Republican legislative leaders then directed the Legislative Reference Bureau not to finalize or publish rules that bypass committee review. 

What are the arguments?

Republican leaders argue the governor’s directive undermines public input and legislative oversight. “If the governor’s actions go unchecked, Wisconsinites would no longer have an opportunity for public testimony on rules that carry the full force of law,” said Assembly Speaker Robin Vos (R) and Senate President Mary Felzkowski (R), accusing Evers of “flagrantly disregarding the rule of law.”

Evers’s team countered that legislative actions are ignoring the court’s ruling. “Republicans are not above the law—they should follow the law like everyone else is expected to,” said Evers’ spokesperson, Britt Cudaback.

What’s the background?

Since 1977, Wisconsin’s Joint Committee for Review of Administrative Rules (JCRAR) exercised what amounted to a legislative veto over agency rules. On July 8, the state’s supreme court ruled 4–3 in Evers v. Marklein II, that this system violated constitutional requirements that laws be passed by both chambers and presented to the governor. The decision reflected the court’s current 4-3 liberal to conservative ideological split, with the majority drawing heavily on reasoning from the U.S. Supreme Court’s decision in INS v. Chadha (1983), which invalidated the federal legislative veto.

Want to go deeper?

• Legislative veto
• Rulemaking
• Separation of powers
• INS v. Chadha

Featured commentary

• OMB director on the administrative state. On Sept. 3, Office of Management and Budget Director Russell Vought discussed his views on the administrative state in a speech to the National Conservatism Conference. Click here to read the edited transcript.

Regulatory highlight

Congressional Review Act

The Congressional Review Act (CRA) allows Congress to repeal rules with joint resolutions of disapproval. The 119th Congress had 60 working legislative days from the 15th day of the session (a window that ended in early May) to introduce resolutions to disapprove of regulations the Biden administration issued after Aug. 16, 2024.

• Members of the 119th Congress have introduced 96 CRA resolutions in the 119th Congress to repeal regulations, mostly from the Biden administration, but including some issued under the second Trump administration. Twenty-three (23) resolutions have passed one Congressional chamber, 16 have passed both chambers, and as of Sept. 16, 16 were signed into law.
• In his two terms, President Donald Trump (R) has signed 32 of the 36 total CRA resolutions ever adopted. President George W. Bush (R) signed one in 2001, and President Joe Biden (D) signed three in 2021.

Notable regulation

• The Office of Information and Regulatory Affairs (OIRA) completed its review of the annual Fish and Wildlife Service migratory bird hunting rule specifying the outside dates, season lengths, shooting hours, bag and possession limits, and areas where such hunting may occur.
• View Ballotpedia’s coverage of previous annual migratory bird hunting frameworks:
  • 2023-2024 Seasons
  • 2022-2023 Seasons
  • 2021-2022 Seasons

• Want to learn more? 
  •  Congressional Review Act
  • Migratory Bird Hunting; 2025–26 Migratory Game Bird Hunting Regulations

Pick of the news

Federal

House Democrats say Trump Admin is obstructing inspectors general: All 20 Democratic members of the House Oversight and Reform Committee sent a letter to two dozen executive agencies, accusing them of blocking inspector generals’ offices from access to agency information and personnel. Government Executive

OPM Director: Federal workforce to shrink 12.5% in 2025: Office of Personnel Management director Scott Kupor said he expects the federal workforce to be downsized by 300,000 employees by the end of 2025, a 12.5% reduction from January. Reuters

Trump Admin begins review of economically significant state laws: The Justice Department and National Economic Council launched a comprehensive review of state laws which they say place a burden on economic activity. Fox Business

FLRA to eliminate admin. law judges: The Federal Labor Relations Authority announced a plan to eliminate its administrative law judge positions. Huffington Post

Court rules NLRB structure is likely unconstitutional: The 5th Circuit Court of Appeals ruled that statutory restrictions on presidential removal of National Labor Relations Board members and administrative law judges are likely unconstitutional. National Law Review

OMB claims broad discretionary authority over grants: According to recently released documents, the Office of Management and Budget has asserted broad discretionary authority over disbursing Congressionally-appropriated grant funds. Washington Post

FCC repeals 100+ rules, other requirements with ‘Direct Final Rule’ procedure: The Federal Communications Commission repealed over 100 rules and other requirements in recent months using a “Direct Final Rule” procedure which shortens periods of public comment. Ars Technica

State

North Carolina Supreme Court strikes down form of judicial deference: The North Carolina Supreme Court struck down judicial deference to state agencies’ interpretations of statute. Carolina Journal

Legislative Tracking Update

Since our last newsletter edition, Ballotpedia tracked significant legislative action (enactments, vetoes, and passage through both chambers) in three states on 23 bills related to the administrative state. One state (NJ) enacted or adopted a bill; one state (CA) passed 20 bills in both chambers; and North Carolina Governor Josh Stein (D) vetoed two bills.

Ballotpedia has tracked a total of 2,247 bills related to the administrative state in 2025 as of Sept. 16.