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OPINION | Trump, Obama and the spending power

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DOES anyone remember Democrats or Republicans calling for President Obama’s impeachment after a federal court reproached his Administration for lawlessly spending money?

We didn’t think so, but now Democrats are flogging a new report by the Government Accountability Office claiming that President Trump broke the law by briefly delaying military aid to Ukraine last summer. The agency’s legal conclusion is wrong, but the double standard is worse.

“This important ruling further strengthens the House’s case for impeachment and removal, and reinforces the need for a fair trial in the Senate that includes documents and witnesses,” Speaker Nancy Pelosi declared following Thursday’s release of the report. The impeachment press is citing the report as if it were a revelation from the Oracle of Delphi.

The GAO is a nonpartisan agency that works for Congress, and its legal opinions aren’t binding on the executive branch. While the agency usually tries to avoid appearing partisan, its analysis that the Trump Administration violated the law reads like a brief from the liberal Center for American Progress.

“Faithful execution of the law does not permit the President to substitute his own policy priorities for those that Congress has enacted into law,” GAO General Counsel Thomas Armstrong declares, adding that the Administration’s “reluctance to provide a fulsome response” to the GAO has “constitutional significance.”

To rewind the tape, the Office of Management and Budget last summer put a hold on $250 million in Pentagon funds that Congress had appropriated in 2018 for the Ukraine Security Assistance Initiative. Congress made the money available through the end of the fiscal year on September 30, but OMB enjoys discretion over when to let funds flow.

OMB in July and August put a hold on the money putatively “to allow for an interagency process to determine the best use of such funds.” As we know, the President wanted to withhold the aid as leverage on Ukraine. But his advisers and GOP senators such as Wisconsin’s Ron Johnson and Ohio’s Rob Portman objected, the flap became a national news story, and OMB released the funds on September 12.

GAO now marches onto the political battlefield to shoot the wounded. It claims the White House violated the 1974 Impoundment Control Act, which prohibits the President from unilaterally deferring or rescinding money that has been appropriated by Congress. But no spending was deferred. The money was spent in the fiscal year of the Congressional appropriation, and OMB says the Pentagon didn’t intend to obligate most of it until September anyway.

There was thus no derogation of Congress’s power of the purse. By contrast, consider the Obama Administration’s decision to pay subsidies to health insurers in 2014 that weren’t appropriated by Congress. The GOP House sued to vindicate its spending power, and a federal judge ruled against the Obama Administration. But the money couldn’t be clawed back.

In a separate case, GAO concluded the Obama Health and Human Services Department in 2016 illegally paid money to insurers that the Affordable Care Act required to be sent to Treasury. The issue was politically charged at the time, but the GAO opinion made no mention of the Constitution: “We conclude that HHS lacks authority to ignore the statute’s directive.” The Obama Administration said it disagreed, and the press yawned.

GAO has enjoyed respect from both sides of the aisle, but it will undermine its credibility if it joins the anti-Trump resistance.

November 2020 pssnewsletter

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