House Budget Chairman John Yarmuth introduced his long-awaited bill intended to reclaim congressional power over how taxpayer dollars are spent, which he said will “add teeth to budget law and further empower Congress to take a stand against Administrations that disregard our Constitution.”
The legislation, introduced Wednesday, follows the House's impeachment of President Donald Trump on charges of abuse of power and obstruction of Congress stemming from his temporary hold on foreign aid to Ukraine.
Democrats charged the withholding was to pressure the Ukrainian government to investigate Democratic presidential candidate Joe Biden, the former vice president, and his son Hunter. Trump denied he blocked the aid to pressure Ukraine, and on Feb. 5 the GOP-controlled Senate acquitted him on both impeachment charges.
Nonetheless, Yarmuth, D-Ky., has been developing legislation to rein in what Democrats say have been Trump’s abuse of presidential authority related to federal budget law. House Appropriations Chairwoman Nita M. Lowey, D-N.Y., is a co-sponsor of the bill. And Patrick J. Leahy of Vermont, the ranking Democrat on the Senate Appropriations Committee, said he plans to offer a companion bill in the Senate.
One of the provisions in the House bill (HR 6628) would address the Ukraine aid hold, and another provision deals with national emergencies declared by the president. Trump in February 2019 declared a national emergency on the southern border with Mexico, enabling him to use other statutory authorities to shift billions of dollars in previously appropriated defense and military construction funds to build the border wall.
Trump declared the national emergency after Congress did not appropriate as much funding for the wall as he had requested last year. Democrats and other critics charged that spending money that Congress had not appropriated for that purpose was illegal, but courts have been divided on the topic.
The Yarmuth legislation would amend the 1976 National Emergencies Act to automatically terminate a president’s declared emergency after 30 days unless both the House and Senate vote to continue it. Under current law, Congress has to take action to end an emergency with veto-proof majorities in both chambers.
The bill also would end the use of emergency authorities invoked by the president after 30 days unless they were approved by Congress during the 30-day period.
Barry Anderson, a former top career official at the Office of Management and Budget, said the proposed limit on national emergencies is to him the most significant part of the bill.
“If I were at OMB under any president and they were asking me, ‘Hey, is this a big deal?’ the big deal would be the declaration of emergency” provision, he said.
Nevertheless, Anderson, a Republican, said a president might be able to evade the proposed 30-day limit by waiting until the national emergency expires and then declaring another national emergency the next day. “Maybe there’s ways to game it, but even if there are, I would say this is a significant part” of the legislation, he said.
In an amendment to the 1974 budget law, the bill would require that any funds that the president proposed for rescission or deferral be made available for obligation no later than 90 calendar days before they would expire.
Restrictions on 'apportionment'
The legislation similarly would require that OMB make appropriated funds available to agencies through the process of "apportionment" no later than 90 days before they would expire. Apportionment is usually used to allocate funds to agencies on a schedule that spaces out how quickly they are spent.
OMB used apportionment to temporarily withhold $214 million in Ukraine aid between July 25 and Sept. 12, when the funds were released with little more than two weeks left before they would expire.
Current law requires withheld funds to be released in time to be prudently obligated. The Government Accountability Office in an opinion in January said the withholding was an illegal deferral.
The White House disagreed and said it was not bound by the opinion of the GAO, a legislative agency. Administration officials said all the withheld funds were able to be obligated before they expired despite the rapidly approaching Sept. 30 deadline.
While the Yarmuth bill requires the release of funds 90 days before they expire, it is unclear how that requirement could be enforced. Under current law, the GAO can sue the president over illegal impoundments or withholding of appropriated money. But since the impoundment rules were tightened in the 1974 law, the GAO has only sued an administration once, and that litigation was resolved through a settlement.
In other provisions, the Yarmuth measure would require OMB to make apportionments publicly available, compel the Justice Department to publish legal opinions it gives to agencies instructing them on budget and appropriations law, and require the executive branch to report other information including expired fund balances and violations of budget law.
The proposal also seeks to strengthen the ability of the GAO to obtain budget information from agencies, expedite its ability to sue the administration over illegal impoundments, and authorize administrative discipline for officials responsible for illegal withholding.
No Republican lawmaker has yet expressed support for the bill. And the White House is likely to oppose the measure, given its past opposition to proposals that administration officials said would improperly limit presidential authority.