A fresh legal opinion challenging President Donald Trump’s hold on Ukraine military aid under a Nixon-era budget law may or may not move the needle with senators in the president’s impeachment trial.
But one thing is clear: Trump’s delay of $214 million in Pentagon funds is just the latest in a long line of findings by the Government Accountability Office going back decades that presidents of both parties have run afoul of the 1974 law. That statute was aimed at restricting “impoundments,” where the executive branch refuses to spend money appropriated by Congress.
The only sanction or penalty, however, is going to court to force release of said funds, an option rendered moot when the money is ultimately released, as it typically has been — just not on the timetable lawmakers envisioned. That fact has led to a resurgence of interest in changing the law itself to give it some actual teeth.
Barry Anderson, a former top official at the Office of Management and Budget and Congressional Budget Office, said he sees merit in attempts to beef up enforcement of the law. As it stands now, Anderson said, “GAO is waving their finger, saying ‘You’re bad.’ But so what?”
House Budget Chairman John Yarmuth told CNN last week after the GAO’s Ukraine aid finding that legislation is needed because under current law “there really is no recourse” to correct an illegal impoundment.
“That’s why we’re considering legislation to try and tie down the administration a little bit more tightly,” the Kentucky Democrat said.
Lawmakers are trying “to come up with some penalties, which would unfortunately only be [the] possibility of fines if they deliberately violated the law,” Yarmuth said. And he said the bill would include “increased transparency, so we’d have increased reporting requirements from the administration.”
Democrats may also try to insert language in spending bills for the coming fiscal year to ensure compliance with the impoundment law, according to a congressional aide.
“Working with my colleagues on the Budget Committee, we will soon put forward strong reforms to address the Trump administration’s abuse of apportionment authority and appropriations law,” House Appropriations Chairwoman Nita M. Lowey of New York said in a statement. The term “apportionments” refers to OMB’s approval of agency plans to spend money appropriated by Congress.
A need for ‘rebalancing’
Lawmakers provided no details and set no date for the introduction of legislation. But budget analysts said the effort to enforce the 1974 law offered the potential for both benefits and pitfalls.
“I think it’s time to strengthen that law,” said G. William Hoagland, a former Republican staff director on the Senate Budget Committee. “A rebalancing needs to be brought here. It’s the legislative branch reasserting its authority over the power of the purse.”
But others expressed unease about imposing fines that could unfairly penalize career bureaucrats and do little to curb unwanted behavior. “I’m just afraid it may be overkill for a fairly unique situation,” said Jack Smalligan, who signed hundreds of apportionments during a 27-year OMB career.
“It would be unfortunate if the law came down on the person signing the apportionments,” said Smalligan, now a senior policy fellow at the Urban Institute, a Washington think tank. “That would change the job pretty significantly,” he said, by putting career employees at risk of criminal violations.
Anderson said lawmakers could choose instead to withhold the pay of the OMB director for a violation of budget law, or possibly the pay of the president — though Trump has said he donates his $400,000 salary to charity.
“Most of these guys aren’t going to go on the bread lines if they miss a monthly check,” Anderson said, in questioning the effectiveness of a fine. “What kind of penalty do you put on not spending money?”
The Senate Budget Committee took its own stab at enforcement in November, as part of a bill it advanced to overhaul the budget process. Maryland Democrat Chris Van Hollen, who requested the GAO legal analysis of Trump’s Ukraine aid hold, won adoption of an amendment aimed mostly at preventing the president from withholding money near the end of a fiscal year, when the funding would expire.
The provision would bar a deferral of funds within 60 days of their scheduled expiration. It also would require the White House budget office to develop an “automated system” to publicly post apportionment documents and make monthly reports on apportionments to the Budget and Appropriations committees.
Any federal employee violating the provision would be subject to “administrative discipline” that includes the possibility of suspension without pay or removal from office. The committee voted 13-8 to adopt the amendment, with three Republicans joining all Democrats and Vermont independent Bernie Sanders in support.
But Budget Chairman Michael B. Enzi of Wyoming joined most Republicans in opposing the provision, saying he wanted more time to explore the issue. Van Hollen said at the markup that he knew of “no substantive opposition” to his amendment, which was designed to “make sure we continue to have the power of the purse.”
It’s not clear whether the Senate will take up the budget overhaul measure this year. Van Hollen said he plans to introduce a standalone bill on impoundment with similar provisions within weeks and will seek to implement his proposals through fiscal 2021 appropriations legislation.
Congress passed the 1974 impoundment law to curb what were seen as abuses of presidential authority over appropriations. The biggest impoundment battle came over President Richard Nixon’s refusal to spend billions of dollars appropriated under the Clean Water Act to help build wastewater treatment plants.
The law gives the president limited power to withhold appropriations. He can request to permanently cancel spending by proposing a “rescission,” which Congress must then approve. Or he can seek a “deferral” of spending, but not beyond the end of the fiscal year for which the money was appropriated. The president must notify Congress of any deferral, which can only be imposed under limited circumstances.
The Trump administration, in footnotes attached to apportionment notices, argued it was delaying Ukraine aid “to allow for an interagency process to determine the best use of such funds.” But the GAO, in its legal opinion, said the impoundment law “does not permit deferrals for policy reasons.”
The White House has denied any violation of budget law or improper handling of the Ukraine aid. Russell Vought, the acting White House budget director, tweeted last week that the administration “complied with the law at every step.”
The administration has also questioned whether the executive branch is bound by GAO findings under the constitutional separation of powers principle, since the agency is an arm of the legislative branch.
Not their first rodeo
Since the 1974 law, GAO has issued various findings related to impoundment act violations, including in the defense arena.
One official who made multiple appearances in early 1990s agency legal opinions was then-Defense Secretary Dick Cheney, who later served as vice president under President George W. Bush.
For example, Cheney was found to have unlawfully withheld funds for the V-22 Osprey, a tilt-rotor aircraft designed to take off and land like a helicopter but fly like an airplane. After the GAO finding, and amid heavy congressional lobbying — not to mention then-President George H.W. Bush’s own 1992 reelection campaign pressures — Cheney relented and let the Osprey program proceed.
Cheney was also charged with imposing an illegal moratorium on military construction projects in 1990 as the administration was battling Congress over budget cuts. Decades later, Trump would also pick a fight with lawmakers over “milcon” funding, choosing to defer $3.6 billion in projects in order to fund his prized southern border wall.
Trump argues he’s within his rights to do so under a separate 1976 law that grants a president certain emergency powers for national security reasons, though litigation to block the move is still working its way through the courts.