[Congressional Record Volume 166, Number 18 (Tuesday, January 28, 2020)]
[House]
[Pages H623-H629]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
WHY IMPOUNDMENT CONTROL ACT MATTERS
The SPEAKER pro tempore. Under the Speaker's announced policy of
January 3, 2019, the Chair recognizes the gentleman from Kentucky (Mr.
Yarmuth) for 30 minutes.
General Leave
Mr. YARMUTH. Madam Speaker, I ask unanimous consent that all Members
may have 5 legislative days in which to revise and extend their remarks
and insert extraneous material on my Special Order.
The SPEAKER pro tempore. Is there objection to the request of the
gentleman from Kentucky?
There was no objection.
Mr. YARMUTH. Madam Speaker, a week from today, we will hear about the
state of our Union from an impeached President who has repeatedly shown
a complete disregard for the principles on which that union was
founded.
President Trump has brazenly trampled the constitutional boundaries
of executive power, damaging the foundation of our democracy. He
shamelessly betrayed his oath of office by putting his own corrupt
agenda before our national security.
His withholding of aid to Ukraine has dominated the news, but the
administration's willingness to pervert our laws for President Trump's
ego, personal vendettas, and political gains goes much deeper.
Earlier this month, the nonpartisan U.S. Government Accountability
Office, or GAO, issued a legal opinion stating that Trump's Office of
Management and Budget, OMB, violated Federal law, specifically the
Impoundment Control Act of 1974, by withholding foreign aid.
Madam Speaker, I will include that opinion in the Record.
{time} 1845
As chairman of the Budget Committee, which has jurisdiction over this
law, it is my responsibility to provide the full story to the American
people and to Members of Congress so that we can all fully understand
what is happening to our government.
To start with, this violation of Federal law was not an innocent
mistake. Withholding Ukrainian aid was an intentional and brazen abuse
of power. This quid pro quo is the most egregious example that we know
of, but the Budget Committee has been concerned by OMB's questionable
behavior and apparent violations of the Impoundment Control Act for
some time.
A deeper look clearly reveals how methodically the President and his
administration have been circumventing our laws to advance their
authoritarian view of executive power. To understand their scheme, we
must understand the law they tried to secretly dodge and ultimately
broke, the Impoundment Control Act.
The U.S. Constitution grants Congress the power to appropriate our
tax dollars, while the President's administration carries out these
spending decisions. It is a simple but incredibly important check on
executive power.
In 1974, Congress passed the Impoundment Control Act, the ICA, in
response to another law-breaking President, President Nixon. By
refusing to spend congressionally appropriated funds for programs he
opposed, such as funding for clean drinking water, Nixon's
administration was impounding funds.
An impoundment means any action or inaction that prevents Federal
funds
[[Page H624]]
from being obligated or spent, either temporarily or permanently.
By passing the ICA, Congress reasserted its constitutional power of
the purse by establishing procedures to block the President and other
government officials from substituting their own funding decisions for
those of Congress.
It created two pathways the executive branch can use to reduce,
delay, or eliminate congressionally appropriated funding: They can
propose to cancel funding, which is known as a recision, or delay
funding, which is a deferral, but both must meet strict requirements.
For example, if the President wants to eliminate funding for a
specific program, he must first secure congressional approval to cancel
that funding. The ICA requires that the President send a special
message to Congress identifying the amount of, the reasons for, and the
effects of a proposed recision.
After submitting this special message, the President can withhold
those funds for up to 45 legislative session days while Congress
considers the request. But if Congress does not pass a law to cancel
those funds within that 45-day period, those funds must be released. So
even with this process, the President cannot cancel funding without
Congress' explicit approval.
Also, the President cannot use the recisions process to run out the
fiscal year clock, in other words, to withhold funds for so long that
they can no longer be used. We will come back to recision, so keep this
in mind.
Now, the ICA defines a deferral as withholding, delaying, or
effectively preventing congressionally approved funds from being
obligated or spent, either through executive action or inaction. But
here is the catch. There are only three narrow circumstances in which
the President can propose a deferral: to provide for contingencies, to
achieve budgetary savings through approved operational efficiency, and
as specifically provided by law.
Notice that policy reasons is not one of the three.
As with recisions, the ICA requires that the President send a special
message to Congress identifying how much they want to defer, why, and
for how long. However, a proposed deferral may not extend beyond the
end of the fiscal year. Only once Congress receives this special
message can the President withhold those funds.
Again, the President cannot withhold funds for so long that they can
no longer be used.
I hope that didn't make anyone's eyes glaze over, but the details of
the Impoundment Control Act are at the heart of this administration's
lack of respect for our Nation's separation of powers and rule of law.
Today, nearly 46 years after the ICA became law, Congress confronts a
President and an administration eager to blow past the boundaries of
executive budgetary power and co-opt Congress' power of the purse for
the President's personal gain.
This brings us to 2018 and one the first red flags. My committee's
concerns about ICA violations under the Trump administration actually
started in 2018, when I was serving as the committee's ranking member.
Multiple reports warned that the Trump administration was considering
a late-in-the-year recisions package that would have effectively
started that 45-day clock close to the end of the fiscal year. As you
recall, the ICA requires congressional approval before funds can be
canceled. By withholding funds through their expiration date, President
Trump and OMB aimed to game the system and create a backdoor recission.
The White House had to abandon this scheme in the face of bipartisan
condemnation.
To send a clear message to the White House and to put an end to any
future attempts at backdoor recisions, then-Chairman Womack and I, in
October of 2018, requested GAO's legal opinion on whether an ill-timed
recision package from the White House would violate the ICA.
Madam Speaker, I include in the Record the letter that then-Chairman
Womack and I sent to the GAO.
House of Representatives,
Committee on the Budget,
Washington, DC 20515, October 31, 2018.
Hon. Gene L. Dodaro,
Comptroller General, U.S. Government Accountability Office,
Washington, DC.
Dear Mr. Dodaro: We are requesting clarification in the
form of a legal opinion on the issue of proposed rescissions
of funds submitted close to their expiration date. It is
important that Congress remain at the center of the decision
of whether to withhold funds. To that end Congress should
have adequate time to receive, consider, and act on any
rescission message sent by the President.
Under the Impoundment Control Act of 1974 (ICA), the
President may submit a special message proposing the
rescission of budget authority and may withhold funds from
obligation for a period of 45 calendar days of continuous
session following transmission of the special message. Public
Law No. 93-344, as amended, 1012; 2 U.S.C. Sec. 683. If
Congress does not pass a rescission bill within the 45-day
period, the ICA requires that the funds be released for
obligation. Specifically, section 1012(b) states: ``Any
amount of budget authority proposed to be rescinded or that
is to be reserved as set forth in such special message shall
be made available for obligation unless, within the
prescribed 45-day period, the Congress has completed action
on a rescission bill rescinding all or part of the amount
proposed to be rescinded or that is to be reserved.''
As you know, the rescission process has been used this year
for the first time since the Clinton Administration.
Naturally, some questions have arisen. One question of
particular importance to Congress concerns whether the
executive can use the rescission process to withhold funds
from obligation for the duration of the 45-day period, even
if the funds expire before the end of that period.
GAO has never issued an opinion on the legality of
withholding funds in this circumstance. We now request GAO's
legal opinion regarding whether the ICA allows funds to be
withheld from obligation in this situation.
Thank you for your attention to this matter.
Sincerely,
Steve Womack,
Chairman,
John Yarmuth,
Ranking Member.
Mr. YARMUTH. In December 2018, GAO issued a decision, which I will
include in the Record, concluding that, while the ICA does, under
limited circumstances, allow the President to withhold money for up to
45 congressional session days, the President cannot freeze the money
for so long that it can no longer be used.
GAO confirmed Congress' constitutional role, saying: ``A withholding
of this nature would be an aversion both to the constitutional process
for enacting Federal law and to Congress' constitutional power of the
purse, for the President would preclude the obligation of budget
authority Congress has already enacted and did not rescind.''
Mr. Womack and I both welcomed this opinion from GAO, calling it an
important confirmation of Congress' constitutional authority over
funding decisions.
While GAO was deliberating, OMB submitted their views, as is
customary. A letter from OMB's general counsel seems to assert the
belief that the President can do whatever he wants, that he doesn't
have to respect our separation of powers or the will of Congress to
cancel funds he doesn't want to spend, that he is above the law.
As GAO stated in their opinion: ``The President has no unilateral
authority to withhold funds from obligation.''
``The President cannot rely on the authority in the ICA to withhold
amounts from obligation, while simultaneously disregarding the ICA's
limitations.''
This deliberate disregard for our laws undermines our democracy. The
executive branch is not a monarchy, but this attitude is a pernicious
problem with this administration.
Less than a year later, in August of 2019, a document, a letter
apportionment from OMB, was leaked. An apportionment is a legally
binding budget document used by OMB to set the rate at which an agency
spends its funds over the course of a fiscal year.
For example, we wouldn't want an agency to come to Congress in March
saying that it has already spent its entire annual operating budget and
must cease operations unless Congress provides more money. To prevent
this, OMB apportions agencies money. However, this leaked letter from
August 3, 2019, raised multiple red flags.
First, this letter apportionment, sent to officials at the State
Department and the U.S. Agency for International Development, put an
abrupt freeze on billions in foreign aid less than 60 days before the
end of the fiscal year.
OMB put a legally binding hold on 15 key accounts that covered a
spectrum of assistance, international control,
[[Page H625]]
peacekeeping operations, global health programs, foreign military
financing programs, and more.
Similar to 2018, reports were circulating that President Trump
planned a late-in-the-year recisions package, despite GAO's decision
just 9 months earlier rebuking the tactic as an end run around
Congress.
On August 19, Senate Budget Committee Ranking Member Sanders and I
wrote a letter to President Trump's Acting Chief of Staff and OMB
Director Mick Mulvaney urging him to follow the law and to respect
Congress' constitutional authority.
Second red flag, this apportionment was signed by Michael Duffey, an
administration political appointee. Since OMB's inception, career
officials with knowledge and expertise of the apportionment process and
impoundment law, not political appointees, have signed these highly
technical budget documents. This means that OMB took the unprecedented
step of stripping career officials of their normal role in the
apportionment process and, instead, gave this responsibility to someone
who had been appointed by the President. This was, to say the least,
suspicious.
Third red flag, under current law, apportionments are not public
documents. OMB sent no special message to Congress to flag this hold on
foreign aid, as the law requires; they kept Congress in the dark. If
the document had not been leaked, Congress might not have ever
discovered this suspicious funding freeze.
What else were they hiding?
While this leaked August 3 letter apportionment is what first alerted
Congress to the President's willingness to break the law, at that time
we could not have guessed how nefarious it really was. A few weeks
later, the Budget Committee would uncover a pattern of abuse of the
apportionment process, our separation of powers, and current law.
As part of our investigation, my committee asked OMB for documents
and answers detailing their involvement in the withholding of foreign
aid. After review of the materials provided to us, it was clear that
this was an intentional and willful abuse of power.
To lay this out as plainly as I can, I will outline what happened
chronologically.
It all starts on May 23, 2019, when the Pentagon sent a letter to
Congress certifying that the Government of Ukraine had met Congress'
anticorruption requirements and was, therefore, eligible to receive the
critical security assistance it needed. Most importantly, the Pentagon
notified lawmakers of its plans to spend the money.
Keep in mind that this is critical funding Ukraine needs to protect
itself from Russia, our shared adversary.
The first sign of trouble came almost a month later, on June 19,
2019. In response to our request for answers, OMB asserts that this is
when they first reach out to the Department of Defense to ask about the
Ukraine Security Assistance Initiative, or USAI, funds.
Mark Sandy, an Afghanistan veteran and top career OMB official who is
responsible for managing the flow of Pentagon funds, testified that OMB
officials were told the President wanted the Ukraine aid paused, but he
didn't understand why.
So, while reaching out to the Pentagon to learn more about the aid
package, he also repeatedly pressed Mr. Duffey about why President
Trump imposed the hold. But Mr. Sandy didn't get a clear answer. He
testified that Mr. Duffey ``didn't provide an explicit response on the
reason. He simply said, `We need to let the hold take place'--and I'm
paraphrasing here--`and then revisit this issue with the President.' ''
Just about a week later, on June 27, Mick Mulvaney was flying on Air
Force One with President Trump when he fired off a quick email to an
aide back in Washington. The email said: ``I'm just trying to tie up
some loose ends. Did we ever find out about the money for Ukraine and
whether we can hold it back?''
The aide, Robert Blair, replied that, while they could carry out the
President's request, the move to withhold aid passed in a bipartisan
spending deal would not go over well with Congress. ``Expect Congress
to become unhinged,'' he wrote back.
I don't know about unhinged, but Congress was not going to let this
abuse of executive overreach go unanswered.
These early conversations are critical to our timeline because they
show that this administration's abuse of our laws and plans to
blackmail a foreign nation into helping President Trump cheat our
elections was premeditated.
President Trump, Mulvaney, and Duffey abused OMB's authority to
withhold Ukraine security assistance at the same time President Trump
directed his personal lawyer, Rudy Giuliani, and his associates to
solicit foreign interference in our elections.
In July, they set their plans in motion. During an interagency
meeting on July 18, an OMB staffer relayed President Trump's order to
freeze all Ukraine assistance to the State Department and the Pentagon.
This stunned and infuriated our own top Ukrainian diplomats, who
understood the necessity of strong American support for Ukraine in
their fight against Russia. Later that day, the House Foreign Affairs
Committee was warned about the hold by administration sources, urging
them to investigate.
But the bottom line was that there was no legal way for President
Trump to withhold aid to Ukraine without Congress' approval. Since it
was a politically motivated hold, it would not even qualify for a
deferral under the ICA. If the President was going to hold this aid
hostage, he had to find a way to go behind Congress' back and secretly
impound hundreds of millions of taxpayer dollars.
Mr. Sandy testified that, on July 19, Mr. Duffey proposed using the
apportionment process to implement the hold, that is, to use a legally
binding budget document to withhold security assistance to Ukraine.
Mr. Sandy also testified that, while approving apportionment
schedules for agencies is routine, attaching a footnote to block
spending was so unusual he did not recall another event like it in his
12 years of service at OMB.
{time} 1900
There is a reason for that. It could be considered a violation of the
Impoundment Control Act.
As you will recall, the ICA prohibits the President and his
administration from withholding aid unless it is done under the
authorities of the Impoundment Control Act, which require notification
to Congress, which OMB did not want to do.
A week later, on July 25, President Trump had his now-infamous call
with Ukrainian President Zelensky, where he asked a foreign government
to dig up dirt on a political rival. Just 90 minutes after the
President hung up the phone, Mr. Duffey emailed the Pentagon, putting a
hold on the Ukraine aid.
In his email, which was only obtained under the Freedom of
Information Act, Mr. Duffey shared OMB's plan to ``formalize the pause
with an apportionment footnote'' that would come later that day. In
another red flag, Mr. Duffey asked Pentagon officials to keep this
``hold'' decision as secret as possible.
According to documents obtained by the House Budget Committee, at
6:44 p.m. Eastern time, just hours after the ``perfect call,'' Mr.
Sandy signed an apportionment that officially imposed what OMB claimed
at the time to be a ``brief pause'' in USAI funds.
OMB inserted a footnote into the apportionment that froze all
remaining USAI funding until August 5. The footnote states that the
funds are being held ``to allow for an interagency process to determine
the best use of such funds,'' but also that ``DOD may continue its
planning and casework for the initiative during this period.''
Why would OMB allow the Pentagon to continue working on current plans
and casework if they were claiming they needed to freeze the funds to
review those same plans and casework? Because this hold was never about
a policy review. This hold was this administration's attempt to get
around Congress and secretly undermine the law, to freeze foreign aid
so that they could use it to pressure Ukraine into helping President
Trump cheat to win reelection in 2020.
It is the same hold that Mulvaney referenced in his June email to Mr.
Blair while flying on Air Force One with the President, and it is the
same hold that would ultimately lead to grounds for impeachment.
[[Page H626]]
The July 25 apportionment would be the last one Mr. Sandy would sign.
The White House needed to make sure the aid remained frozen while they
kept up their pressure campaign on President Zelensky. But OMB career
officials were becoming uneasy about the freeze and the illegality of
using apportionments to create secret impoundments.
In an unprecedented move, Mr. Sandy was stripped of his authority to
oversee the management of Ukraine aid, and the apportionment authority
was transferred to President Trump's political appointee, Mr. Duffey.
Remember that leaked letter apportionment that raised red flags? When
that apportionment leaked in early August, Congress still didn't know
about the plot to withhold the Pentagon's $250 million in Ukraine aid.
So here we have 15 State and USAID foreign aid accounts on hold, one of
which includes $26.5 million in Foreign Military Financing funds for--
you guessed it--Ukraine. On top of that, this apportionment is the
first one with Mr. Duffey's signature.
August was a busy time for Mr. Duffey. Someone who had never before
signed apportionment documents started signing all the apportionment
documents in both the National Security Division and the International
Affairs Division instead of career officials. On August 6, Mr. Duffey
signed the first extension of what was supposed to be the brief
withholding of the Pentagon's USAI funds, using another footnote to
freeze the funds until August 12.
Separately, on August 9, our documents show Mr. Duffey signed another
apportionment affecting the State Department and USAID foreign funds
included in the leaked apportionment. This time, OMB said the agencies
are only allowed to spend 2 percent of the funds each day, and it
withholds the rest from the agencies. That is not a programmatic, funds
management, or even a policy decision.
The State Department doesn't send a couple thousand dollars to
support international peacekeeping missions one day and then a couple
thousand dollars to support international narcotics control the next.
That is not how it works.
Limiting agencies to such a minuscule amount effectively prevented
these funds from being spent at all, while at the same time, the
apportionment continued to withhold the majority of remaining funds. It
was another backdoor attempt to freeze funding and possibly rescind it
completely by running out the clock.
On August 19, Senator Sanders and I sent our letter to OMB and the
White House, calling on the administration to stop impounding funds, to
respect GAO's legal opinion from the previous December, stating that a
late-in-the-year rescission request that prevents congressional action
and withholds funds until they can no longer be used would violate the
ICA.
Madam Speaker, I include in the Record the letter Senator Sanders and
I sent to Director Mulvaney.
Congress of the United States,
Washington, DC, August 19 2019.
Hon. Mick Mulvaney,
Director, Office of Management and Budget,
Washington, DC.
Dear Director Mulvaney: We write to express our profound
concern regarding the Administration's reported plan to
submit a rescission request to the Congress just a few weeks
before the end of the fiscal year.
Under the Impoundment Control Act of 1974 (ICA), the
President may submit a special message proposing the
rescission of budget authority and may withhold funds from
obligation for a period of 45 calendar days of continuous
session following transmission of the special message. In
keeping with Congress's constitutional power of the purse,
however, such funding must be released absent approval by
Congress within the 45-day period. Specifically, section
1012(b) of the ICA states:
Any amount of budget authority proposed to be rescinded or
that is to be reserved as set forth in such special message
shall be made available for obligation unless, within the
prescribed 45-day period, the Congress has completed action
on a rescission bill rescinding all or part of the amount
proposed to be rescinded or that is to be reserved.
Submitting a rescissions request and withholding funds from
obligation this late in the fiscal year could result in
funding being withheld through its expiration date. In
December 2018, at the request of the House Budget Committee,
the U.S. Government Accountability Office (GAO) issued a
legal opinion that addressed this circumstance. GAO found
that ``the ICA does not permit the withholding of funds
through their date of expiration.'' Further, GAO determined
that absent Congressional action to rescind the funds,
amounts proposed for rescission must be made available for
prudent obligation before the amounts expire, even where the
45-day period for congressional consideration provided in the
ICA approaches or spans the date on which funds would expire:
the requirement to make amounts available for obligation in
this situation prevails over the privilege to temporarily
withhold the amounts.
The authority provided by the ICA to the Executive Branch
to withhold funds temporarily is necessarily limited. The GAO
opinion states:
It would be an abuse of this limited authority and an
interference with Congress's constitutional prerogatives if a
President were to time the withholding of expiring budget
authority to effectively alter the time period that the
budget authority is available for obligation from the time
period established by Congress in duly enacted appropriations
legislation.
As the chairman and ranking member of the respective House
and Senate committees with jurisdiction over the Impoundment
Control Act, we affirm our strong agreement with the legal
analysis and conclusions reached by GAO. We strongly urge the
Administration to refrain from sending a rescission message
to the Congress; however, in the event the Administration
submits such a message, it must take measures to ensure that
the affected funds will be prudently obligated in the event
the Congress does not approve the rescission, as required by
law. To withhold these funds until they can no longer be
prudently obligated or until they expire, in the absence of
Congressional approval of the rescission, would violate the
ICA and flout an important constitutional check. We trust
that you will comply with the law and respect the
constitutional role of the Congress to remain at the center
of funding decisions.
Thank you for your attention to these concerns.
Sincerely,
John Yarmuth,
Chairman, House Committee on the Budget.
Bernard Sanders,
Ranking Member, Senate Committee on the Budget.
Mr. YARMUTH. At this time, we did not understand that the President
and OMB actually had learned from their 2018 attempts to circumvent
Congress. But they learned the wrong lesson. Now, they were just trying
to bypass Congress completely.
By the second week of August, Mr. Duffey was issuing holds on USAI
funds every couple of days to block the Pentagon from sending aid. OMB
was doing what it could to keep the President's hold on Ukraine aid
active, but on August 28, a senior administration official told
Politico about the hold on USAI funds. The President's scheme was
unraveling.
On August 29, our documents show Mr. Duffey signed another letter
apportionment releasing 25 percent of the remaining State Department
and USAID funds each Sunday in September. With this latest trick, it
was clear these agencies were not going to be able to spend all the
funds Congress appropriated before they expired on September 30. And in
fact, they didn't, which was apparently OMB's intention all along.
Meanwhile, Mr. Duffey was still signing apportionments to freeze USAI
funds until September 12. During this time, DOD warned that OMB's
ongoing hold on Ukraine assistance would prevent them from using all
the funds Congress appropriated before they expired on September 30.
And, of course, DOD was right.
On September 18, Chairwoman Lowey and I wrote to OMB, expressing deep
concerns about OMB's escalating abuses of its apportionment authority
and its blatant attempts to undermine Congress' power of the purse.
Basically, we told them to stop their pretty obvious attempts to evade,
invalidate, and violate congressional appropriations laws and the ICA.
Madam Speaker, I include in the Record that letter of September 18.
House of Representatives,
Committee on the Budget,
Washington, DC, September 18, 2019.
Hon. Mick Mulvaney,
Acting Chief of Staff, The White House,
Washington, DC.
Hon. Russell Vought,
Acting Director, Office of Management and Budget, Washington,
DC.
Dear Mr. Mulvaney and Mr. Vought: We write to express our
deep concerns about the Office of Management and Budget's
(OMB's) increasingly dubious and politicized applications of
budget law, as well as the role they have played in impeding
other agencies' ability to use their enacted appropriations.
[[Page H627]]
OMB's actions have already damaged important government
programs, diminished our country's security and standing
abroad, and if continued, threaten to permanently undermine
fundamental checks and balances in our constitutional
republic.
Specifically, during the last year, OMB has demonstrated a
growing willingness to abuse its Presidentially-delegated
apportionment authorities and impermissibly disrupt the
balance of powers between the branches. The agency's
apportionment authorities may not be used as a form of
executive control or influence over agency functions. Rather,
they may only be exercised in the manner and for the purposes
prescribed in the Antideficiency Act (ADA) and in compliance
with other appropriations and budget laws, including title X
of the Congressional Budget and Impoundment Control Act of
1974 (Impoundment Control Act). None of those laws give the
Executive Branch the unilateral power to invalidate duly
enacted statutes through the apportionment process.
Nevertheless, OMB continues to abuse those authorities, and
the apportionment process, to flout the Constitution's
assignment of the power of the purse to Congress. OMB's
inexplicable and unprecedented apportionment actions have
withheld critical funding provided for the Department of
State and United States Agency for International Development
(USAID) in a manner inconsistent with long-standing policies
and procedures. Those OMB actions are deleteriously impacting
the prudent obligation of foreign assistance intended to
support U.S. interests, and are hindering the efficient and
effective management of U.S. funds and programs. Indeed,
those actions seem to be specifically designed to obstruct
the agencies' ability to use their appropriations for their
Congressionally-approved purposes in the final weeks before
they expire. We have serious legal concerns that those
actions will result in de facto impoundments, and we are
deeply troubled that this may be OMB's unstated goal.
The apportionment actions at issue also undermine important
programs and policies that Congress funded, to among other
things:
Fulfill U.S. treaty obligations and support the nation's
international allies and partners;
Counter Russian aggression and Chinese influence across the
globe;
Respond to humanitarian crises all over the world,
including in Venezuela, Syria, and Burma;
Counter violent extremism in the Sahel, Yemen, and
elsewhere; and
Enable important initiatives such as the Indo-Pacific
Strategy and Power Africa.
Withholding funds through the apportionment process until
they can no longer be prudently obligated is a back-door
rescission without Congressional approval. A year ago, OMB
retreated from its plan to illegally impound State Department
and USAID appropriations through a cynically-timed
rescissions proposal--a misguided scheme that OMB threatened
again this year, even after clear warning from the Government
Accountability Office (GAO) that such attempts were in
violation of the Impoundment Control Act. We are concerned
that OMB's intransigence on these issues has led it to try to
accomplish through the apportionment process what it had
hoped to accomplish with a rescissions proposal.
OMB has continued to push this unlawful agenda and
perniciously broadened its sights to target funding provided
by the Congress to the Department of Defense to counter
Russian aggression. In particular, OMB withheld funding
provided for the Ukraine Security Assistance Initiative, a
vital form of Congressionally-directed assistance that helps
Ukraine defend its sovereign territory. As with the State and
USAID funding, this funding also expires at the end of this
month, and recent estimates indicate that at least tens of
millions--and potentially over one hundred million--in funds
will expire as a result of OMB's attempts to stifle the
Department of Defense's access to this lawfully provided
funding. This apparent impoundment has interrupted the
Defense Department's work on security programs that have been
in place with a partner nation for years.
OMB also took the unusual and perhaps unprecedented step of
delegating the authority to execute these apportionments to a
political appointee, in lieu of career civil servants who
have historically been the designated officials responsible
for overseeing and executing these technical budget
documents. More than that, the apportionment actions taken by
this political appointee have no justifiable policy, program,
or funds management rationale.
We are deeply troubled by this pattern of OMB interference
with agencies' use of appropriations for authorized purposes.
All the funding for the programs and policies mentioned above
was negotiated in good faith between, and subsequently
approved by, bipartisan majorities in the Congress, and was
signed into law by President Trump. Moreover, we are deeply
concerned that OMB has intended that these actions take place
without Congressional oversight or transparency to the
public, given that OMB has been unwilling to provide
apportionments even pursuant to written requests by our
committees.
We assure you that our committees will remain focused on
OMB's use of apportionments and that we will respond
forcefully to Executive Branch actions that seek to override
the Congress' most fundamental constitutional power. We are
actively pursuing a range of options to ensure that OMB is
held accountable for any improper apportionment actions and
to ensure that the Congress remains at the center of funding
decisions. In the meantime, we urge you in the strongest
possible terms to return OMB to its function of administering
enacted laws, to immediately release for use all remaining
expiring funds, and to cease further attempts to evade and
invalidate the laws passed by the Congress. We sincerely hope
you can be successful in restoring the trust that OMB has
historically held as a valuable institution and good steward
of federal funding.
John A. Yarmuth,
Chairman, House Committee on the Budget.
Nita M. Lowey,
Chairwoman, House Committee on Appropriations.
Mr. YARMUTH. But then, Madam Speaker, the whistleblower report was
made public. The report outlined how President Trump instructed his
administration and OMB officials to put a hold on almost $400 million
in Ukraine security assistance ahead of his July 25 phone call with
President Zelensky. The President abused his power and betrayed the
oath he took before the American people to defend our national security
and honor our Constitution.
As the plan unraveled, the picture became clear. The administration
was abusing the apportionment process to secretly and illegally impound
funding provided by Congress to protect our national security, to use
this leverage against a foreign nation to help the President cheat our
elections, and they couldn't hide it any longer.
On September 24, Speaker Pelosi announced a formal impeachment
inquiry into the shady dealings of the Trump administration.
Madam Speaker, I include in the Record a letter of September 27 that
Chairwoman Lowey and I sent to OMB, seeking answers and documents
related to the withholding of the Ukraine aid, State and USAID funds,
and abuse of the apportionment process.
Congress of the United States,
Washington, DC, September 27, 2019.
Hon. Mick Mulvaney,
Acting Chief of Staff, The White House, Washington, DC.
Hon. Russell Vought,
Acting Director, Office of Management and Budget, Washington,
DC.
Dear Mr. Mulvaney and Mr. Vought:
The Committees on the Budget and Appropriations are the
primary committees charged with overseeing and writing
federal budget and appropriation laws. Consistent with our
authority, we are continuing our efforts in the 116th
Congress to pursue productive improvements and reforms to the
laws and authorities governing federal financial management
to ensure that the Congress remains at the center of funding
decisions. Specifically, our committees are considering
legislative proposals related to the apportionment process
and the withholding of funds, including in the context of the
lmpoundment Control Act of 1974 (ICA) and the annual
appropriations acts.
As we stated in our September 18th letter, we have serious
concerns that recent apportionment actions by the Office of
Management and Budget (OMB) to withhold military aid for
Ukraine and other foreign assistance constitute unlawful
impoundments in violation of the ICA and are an abuse of the
authority provided to the President to apportion
appropriations. In the short time since we sent that letter,
additional reports have emerged detailing the circumstances
surrounding the withholding of funding for Ukraine and OMB's
involvement in that withholding.
According to those reports, at least a week prior to a July
25th phone call between President Trump and Ukrainian
President Zelenskyy, President Trump told Mr. Mulvaney to
withhold almost $400 million in military aid and foreign
assistance for Ukraine, and ``[o]fficials at the Office of
Management and Budget relayed Trump's order to the State
Department and the Pentagon during an interagency meeting in
mid-July.'' The reporting also indicates that ``[t]here was
concern within the administration that if they did not spend
the money [appropriated for Ukraine], they would run afoul of
the law'' and that, eventually, Mr. Vought released the
money.
On Tuesday, September 24, 2019, at the United Nations
General Assembly, the President confirmed the withholding and
added his reasoning, stating:
As far as withholding funds, those funds were paid. They
were fully paid. But my complaint has always been--and I'd
withhold again, and I'll continue to withhold until such time
as Europe and other nations contribute to Ukraine. Because
they're not doing it.
The recently declassified complaint submitted to the Office
of the Inspector General of the Intelligence Community (ICIG)
on Monday, August 12, 2019 provided similar confirmation of
OMB's withholding of appropriated funding for Ukraine. The
complaint, which appeared credible according to a letter from
the ICIG, stated among other things:
[[Page H628]]
On 18 July, an Office of Management and Budget (OMB)
official informed Departments and Agencies that the President
``earlier that month'' had issued instructions to suspend all
U.S. security assistance to Ukraine. Neither OMB nor the NSC
staff knew why this instruction had been issued. During
interagency meetings on 23 July and 26 July, OMB officials
again stated explicitly that the instruction to suspend this
assistance had come directly from the President, but they
still were unaware of a policy rationale. As of early August,
I heard from U.S. officials that some Ukrainian officials
were aware that U.S. aid might be in jeopardy, but I do not
know how or when they learned of it.
As reports continue to emerge, we have deepening concerns
that OMB continues to demonstrate a pattern of impeding
agencies' ability to use their enacted appropriations; that
recent apportionment actions taken by OMB to withhold
military aid and foreign assistance funding administered by
the Department of Defense, Department of State, and U.S.
Agency for International Development constitute unlawful
impoundments; and that OMB took the unusual and seemingly
unprecedented step of delegating the authority to execute
these apportionments to a political appointee, in lieu of
career civil servants who have historically been the
designated officials responsible for overseeing and executing
these technical budget documents. These actions have
collectively undermined the longstanding application and
predictability of federal funds management processes and
require closer examination by our committees to inform
appropriate legislative responses and reforms.
Therefore, to support our committees' efforts, we request
that OMB produce written responses to the committees, no
later than Tuesday, October 1, 2019, to the following
questions:
(1) a. When did OMB first instruct agencies to withhold
assistance for Ukraine, including amounts appropriated in
section 9013 of the Department of Defense Appropriations Act,
2019 for the Ukraine Security Assistance Initiative and any
applicable amounts provided in other appropriation acts for
the Foreign Military Financing Program?
b. In which Treasury Appropriation Fund Symbol(s) (TAFS or
account) were amounts withheld?
c. When was the first apportionment action executed for
(each of) the relevant account(s) to withhold those funds?
d. Were the withheld funds made available for immediate use
by the agencies during fiscal year 2019, and if so, when?
(2) a. When did OMB first instruct agencies to withhold
funding in the accounts referenced in the letter
apportionment effective as of 11:59 p.m. Eastern Daylight
Time on Saturday, August 3, 2019 (``August 3, 2019 Letter
Apportionment'')?
b. When were the first apportionment actions executed to
withhold those funds?
c. Were the withheld funds made available for immediate use
by the agencies during fiscal year 2019, and if so, when?
No later than Tuesday, October 1, 2019, we also request
that OMB produce the following documentation to the
committees:
(3) All apportionments or reapportionments for fiscal year
2019 that were executed in the last quarter of fiscal year
2019, including documentation of the approval date of each
such apportionment action and any footnotes, for any
applicable TAFS used for assistance for Ukraine or the
Ukraine Security Assistance Initiative appropriation,
including the Department of Defense, Operation and
Maintenance, Defense-wide account, 97-0100/2019 and
account(s) for any applicable amounts provided in other
appropriation acts for the Foreign Military Financing
Program.
(4) All apportionments and reapportionments for fiscal year
2019 that were executed in the last quarter of fiscal year
2019, including documentation of the approval date of each
such apportionment action and any footnotes, for each TAFS
referenced in the August 3, 2019 Letter Apportionment and any
applicable child accounts.
Finally, we request that OMB produce documentation to the
committees, no later than Friday, October 11, 2019, on the
following:
(5) Documentation sufficient to show the obligational
status of the relevant assistance funding to Ukraine by
account, including all amounts appropriated in section 9013
of the Department of Defense Appropriations Act, 2019 and any
applicable amounts provided in other appropriation acts for
the Foreign Military Financing Program, as of June 30, 2019
and as of September 30, 2019, including the specific amounts
that were (a) unobligated, (b) obligated but not expended,
and (c) obligated and expended.
(6) Documentation sufficient to show:
a. when OMB first instructed agencies to withhold
assistance for Ukraine, including amounts appropriated in
section 9013 of the Department of Defense Appropriations Act,
2019 and any applicable amounts provided in other
appropriation acts for the Foreign Military Financing
Program;
b. the amount of funding that was withheld from obligation,
and in which account(s);
c. when the first apportionment action was executed to
withhold those funds;
d. the period over which the funds were withheld;
e. whether the funds were, subsequent to those
withholdings, made available for immediate use by the
agencies during fiscal year 2019, and if so, when;
f. the factual, legal, and policy bases upon which these
actions were taken; and
g. whether requests were made by the affected agencies to
reapportion the funding at issue, or to alter the conditions
of the apportionments in effect, and if so, whether those
requests were granted.
(7) Documentation sufficient to show:
a. whether there was an ``interagency process'' related to
the withholding or use of amounts appropriated in section
9013 of the Department of Defense Appropriations Act, 2019,
and the basis for initiating such interagency process,
including its stated purposes and goals;
b. what entities or agencies were involved in such
interagency process;
c. when that process began; and
d. the conclusions reached through that process and when
they were reached, including the outcomes of any interagency
meetings that occurred on July 23, 2019 and July 26, 2019
related to the disposition of the funding.
(8) Documentation sufficient to show the obligational
status of all amounts apportioned as unavailable in the
August 3, 2019 Letter Apportionment. This documentation
should show the status of those funds as of June 30, 2019 and
as of September 30, 2019, and should show, at a minimum, the
specific amounts by account that were (a) unobligated, (b)
obligated but not expended, and (c) obligated and expended.
(9) Documentation sufficient to show:
a. when OMB first instructed agencies to withhold funding
in the accounts referenced in the August 3, 2019 Letter
Apportionment;
b. how much funding was withheld from obligation in each
account, and over what period the amounts were withheld;
c. when the first apportionment actions were executed to
withhold those funds;
d. whether the funds were, subsequent to those
withholdings, made available for immediate use by the
agencies during fiscal year 2019, and if so, when;
e. the factual, legal, and policy bases upon which these
actions were taken; and
f. whether requests were made by the affected agencies to
reapportion the funding at issue, or to alter the conditions
of the apportionments in effect, if any, and whether those
requests were granted.
(10) Documentation sufficient to show the timeline and
basis for the delegation of apportionment authority to the
Associate Director for National Security Programs, any
related delegation actions, and any other delegations of the
apportionment authority to a political appointee during
fiscal year 2019.
(11) All apportionments and reapportionments for fiscal
year 2019 that were executed in the first three quarters of
fiscal year 2019, including documentation of the approval
date of each such apportionment action and any footnotes, for
any applicable TAFS used for assistance for Ukraine or the
Ukraine Security Assistance Initiative appropriation,
including the Department of Defense, Operation and
Maintenance, Defense-wide account, 97-0100/2019 and
account(s) for any applicable amounts provided in
appropriation acts for the Foreign Military Financing
Program.
(12) All apportionments and reapportionments for fiscal
year 2019 that were executed in the first three quarters of
fiscal year 2019, including documentation of the approval
date of each such apportionment action and any footnotes, for
each TAFS referenced in the August 3, 2019 Letter
Apportionment and any applicable child accounts.
Thank you for your prompt attention to this matter.
Sincerely,
John A. Yarmuth,
Chairman, House Committee on the Budget.
Nita M. Lowey,
Chairwoman, House Committee on Appropriations.
Mr. YARMUTH. Madam Speaker, while we received a partial production of
documents from OMB, they left out large batches of requested materials.
Meanwhile, the House committees involved in the impeachment inquiry
were getting completely stonewalled by the administration. If they did
nothing wrong, why wouldn't they turn over documents or allow officials
to testify? If the President could clear his name, don't you think he
would have done it by now?
Instead, the President and his Chief of Staff, Mick Mulvaney, have
gone on national television and confessed to the very thing Congress
caught them doing. Mulvaney's response? ``Get over it,'' and, ``We do
it all the time.''
In December 2019, the House Budget Committee released a report, which
I intend to put in the Record, outlining three main takeaways from the
documents produced by OMB.
Number one, the timeline of actions taken by OMB, as seen in the
provided apportionments, shows suspicious activity and document a
pattern of abuse of the apportionment process, OMB's authority, and
current law.
Number two, OMB took the seemingly unprecedented step of stripping
career officials of their normal role in
[[Page H629]]
the apportionment process and instead vested a political appointee with
that authority.
And, three, OMB's actions hindered agencies' ability to prudently
obligate funds by the end of the fiscal year, bypassing Congress and
creating backdoor rescissions in violation of the ICA.
Weeks after our report was published, the House of Representatives
impeached Donald J. Trump for abuse of power and obstruction of
justice.
On January 16, 2020, GAO issued a legal opinion, stating that the
actions taken by OMB to withhold foreign aid to Ukraine violated the
ICA. The nonpartisan watchdog even went so far to say: ``OMB's
assertions have no basis in law.''
GAO found the White House's action to withhold security assistance
funding constituted an illegal deferral of funding in violation of the
ICA. The ICA permits deferrals only for very limited purposes and
requires advanced congressional notification. But this was not just a
notification violation. GAO determined that this deferral was
prohibited under the ICA, period.
As GAO emphasized: ``The ICA does not permit deferrals for policy
reasons. . . . OMB's justification for the withholding falls squarely
within the scope of an impermissible policy deferral.''
So even if the President had notified Congress in advance of the
deferral, it still would have been illegal.
The White House has taken a disturbing sense of pride in its
obstruction of Congress so it is no surprise that they failed to fully
cooperate with GAO as well. In its decision, GAO called out the Trump
administration, stating: ``We consider a reluctance to provide a
fulsome response to have constitutional significance.''
The House Budget Committee repeatedly warned the Trump administration
about the ICA. The Department of Defense warned them. The State
Department warned them. Even people in the Executive Office of the
President called out this flagrant abuse of Federal law. But the
President ignored the warnings.
Instead, he used the powers of his office to subvert our laws,
solicit foreign interference to help him cheat in his next election,
and then try to cover it all up.
While the House has taken action to show that no one, including the
President, is above the law, OMB is still scheming. President Trump's
administration continues to abuse its authority and infringe on
Congress' power of the purse--for example, holding up disaster relief
to Puerto Rico. I would wager it is because the President couldn't
handle some criticism from one of their mayors. We shall see.
Last March, my colleagues and I wrote a letter to OMB, which I intend
to put in the Record, calling out this administration for declaring
bogus national emergencies to steal funds Congress appropriated for
crucial military construction and counternarcotic initiatives to use
for the President's border wall, another decision motivated by the
President's political campaign and not taxpayer interests. There is
more, I am sure, that we just don't know about yet, but we will find
out.
In the face of this administration's clear and present threat to our
democracy, we must defend Congress' constitutional authority, protect
our separation of powers, and strengthen the ICA to prevent such
unilateral actions.
In March, I will introduce legislation that will protect Congress'
power of the purse. It will promote transparency of the executive
branch to limit abuse and ensure no President can hide lawbreaking from
the American people again. It will add teeth to budget law by creating
significant deterrents, including administrative discipline, to create
more accountability for executive branch officials so they won't break
the law, and it will ensure Congress remains front and center in
determining whether emergency declarations made by the President and
the related shifts in funding are justified.
Look, this is a lot of information, and I am normally not one to give
long statements, but in the face of such horrendous attacks on our
democracy, I wanted it all on the Record.
I am also submitting every letter I referenced into the Congressional
Record, as well. As chairman of the House Budget Committee, I felt it
was my responsibility.
It is my hope that these facts help expose this administration's
systemic lawbreaking because if they get away with this and Congress
does not fight back, it will not stop. We all know that.
He could attack specific communities by withholding funds that
support their healthcare. He could retaliate against Senators for their
votes by freezing Federal investments in their States. He could punish
States that he views as unsupportive of his election by withholding the
infrastructure funds.
If we don't stop him, President Trump will use our taxpayer dollars
to punish political adversaries. That creates a destructive precedent
for other Presidents who follow.
I implore our Republican colleagues to join us in this effort to
uphold the oath we all swore and to make it unequivocally clear that,
in the United States of America, no one is above the law.
Madam Speaker, I yield back the balance of my time.
The SPEAKER pro tempore. Members are reminded to refrain from
engaging in personalities toward the President.
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