[Congressional Record Volume 166, Number 19 (Wednesday, January 29, 2020)]
[Extensions of Remarks]
[Pages E106-E108]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                  WHY IMPOUNDMENT CONTROL ACT MATTERS

                                 ______
                                 

                               speech of

                          HON. JOHN A. YARMUTH

                              of kentucky

                    in the house of representatives

                       Tuesday, January 28, 2020

  Mr. YARMUTH. Madam Speaker, I include in the Record the letter to the 
Office of Management and Budget questioning the Trump Administration 
for declaring bogus national emergencies to usurp funds Congress 
appropriated for military construction and counternarcotic initiatives 
to use for the President's border wall. I am submitting this in the 
Record to help inform the public of the Administration's systematic 
disregard of Congress' constitutional authority, separation of powers 
principles, and the lmpoundment Control Act.

                                                    March 8, 2019.
     The Hon. Russell Vought,
     Acting Director,
     Office of Management and Budget.
       Dear Acting Director Vought: The President's announcement 
     to spend up to $6.725 billion in additional funding for 
     construction of a border wall or barrier came at the end of 
     bipartisan negotiations on an agreed-to funding level of 
     $1.375 billion for Fiscal Year (FY) 2019 for border security. 
     The executive action plan further specified that the $6.725 
     billion would be used sequentially as follows: $601 million 
     from the Treasury Forfeiture Fund, up to $2.5 billion under 
     the Department of Defense funds transferred for Support for

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     Counterdrug Activities (10 U.S.C. Sec. 284), and up to $3.6 
     billion reallocated from Department of Defense military 
     construction projects under the President's declaration of a 
     national emergency (10 U.S.C. Sec. 2808). However, important 
     budgetary details of the plan have not yet been provided, 
     including the specific funding sources and additional 
     authorities that would be used and the programs, projects, 
     and activities from which funds would be diverted.
       As the Article I branch, it is essential that Congress 
     remains at the center of funding decisions, especially 
     decisions that Congress has spent considerable time debating 
     and negotiating. We have significant concerns with the 
     Administration's plan, and we are frustrated by the lack of 
     transparency from the Administration. Congress should receive 
     adequate information to consider the use of the $6.725 
     billion referenced in the President's executive action plan. 
     The executive action plan also needs to be considered in the 
     context of fast-approaching deadlines for a budget resolution 
     and decisions about the discretionary cap levels for the 
     appropriations process, as well as for Article I equities 
     more broadly. To that end, we request that you provide the 
     following documents and information:
       1. All documents prepared for or relating to meetings about 
     or decisions by the Office of Management and Budget (OMB) 
     Director, Acting Director, Deputy Director, Associate 
     Director(s), Deputy Associate Director(s), or any other OMB 
     or White House official or staff concerning the President's 
     executive action plan to use up to $6.725 billion to build a 
     border wall, including statements of conclusions and 
     background materials, received or produced by OMB in relation 
     to interagency meetings or discussions relating to the 
     President's executive action plan.
       2. All documents relating to the budgetary details of the 
     President's executive action plan to use up to $6.725 billion 
     to build a border wall, including information on all affected 
     appropriations and Treasury Appropriation Fund Symbols (TAFS) 
     by fiscal year and by program, project, or activity.
       3. All documents since January 20, 2017 relating to any OMB 
     Budget Data Request or any other OMB request to agencies to 
     identify funding available to build a border wall or to 
     otherwise fund border security or counterdrug activities at 
     the border.
       4. All documents relating to the authorized, planned, or 
     intended use of the $6.725 billion prior to any consideration 
     or determination that such amounts may be used instead to 
     build a border wall, including all documents relating to:
       a. The authorized, planned, or intended use of the ``first 
     tranche'' of approximately $242 million to be expended under 
     the Treasury Forfeiture Fund (TFF);
       b. The authorized, planned, or intended use of the ``second 
     tranche'' of approximately $359 million to be expended under 
     the TFF;
       c. The authorized, planned, or intended use of the 
     approximately $2.5 billion under the Department of Defense 
     funds transferred for Support for Counterdrug Activities 
     under 10 U.S.C. Sec. 284;
       d. The authorized, planned, or intended use of the 
     approximately $3.6 billion reallocated from the Department of 
     Defense military construction projects under the President's 
     declaration of a national emergency pursuant to 10 U.S.C. 
     Sec. 2808.
       5. Any documents, including any guidance or instructions to 
     agencies, relating to the de-obligation of funds, delay in 
     obligation or expenditure, or any other change in the rate of 
     obligation and expenditure involving the potential or planned 
     use of such funds to carry out the President's executive 
     action plan.
       6. All documents relating to any spend plan for any 
     appropriation account affected or relevant to the President's 
     executive action plan to use up to $6.725 billion to build a 
     border wall, including documents exchanged between or among 
     OMB and the Department of Defense, the Department of Homeland 
     Security, or the Department of the Treasury.
       7. All documents relating to each apportionment and 
     reapportionment for FY 2019, including department or agency 
     requests to OMB, for each affected or relevant TAFS related 
     to the President's executive action plan. This also includes 
     all apportionment and reapportionment documentation for any 
     TAFS from which funds would be contributed, to which funds 
     would be contributed, from which transfers would be made, to 
     which transfers would be made, in which transfers or 
     reprogrammings would occur, or that is otherwise relevant in 
     tallying (a) the ``$601 million'' amount described by the 
     Administration from the TFF; (b) the ``up to $2.5 billion'' 
     amount described by the Administration pursuant to 10 U.S.C. 
     284; and (c) the ``up to $3.6 billion'' amount described by 
     the Administration pursuant to 10 U.S.C. 2808.
       8. All documents relating to the legal or programmatic 
     basis upon which OMB apportions or reapportions any TAFS to 
     carry out the President's executive action plan, including 
     any Administration legal opinion(s) prepared in whole or in 
     part by, or in consultation with, OMB, the Department of 
     Defense, the Department of Homeland Security, the Department 
     of the Treasury, the Department of Justice, the National 
     Security Council, or the White House Counsel's Office.
       9. All documents relating to the potential, planned, or 
     completed obligations or outlays incurred for each 
     appropriation and TAFS or any other budget execution steps to 
     carry out the President's executive action plan or in 
     anticipation of potential use related to the plan.
       10. All other documents relating to the President's 
     executive action plan, including documents relating to (a) 
     the Department of Homeland Security's identification of 
     priorities for potential construction of a border wall and 
     the relation to supporting the use of the armed forces, in 
     accordance with 10 U.S.C. 2808; (b) the Department of 
     Homeland Security's request of support from the Department of 
     Defense pursuant to 10 U.S.C. 284 and any response from the 
     Department of Defense; and (c) any contractual awards or 
     modifications or any other changes to contracting to carry 
     out the President's executive action plan.
       While the President has issued a national emergency 
     proclamation, our committees are still responsible for 
     performing their constitutional oversight responsibilities. 
     As such, given the speed with which we believe the 
     Administration may be acting in response to the emergency 
     proclamation, we request that you produce the requested 
     documents and information no later than March 22, 2019.
       We appreciate your time and attention to this urgent 
     matter.
           Sincerely,
     John Yarmuth,
       Chairman, House Committee on the Budget.
     Mike Quigley,
       Chairman, House Appropriations Committee, Subcommittee on 
     Financial Services and General Government.
     Nita M. Lowey,
       Chairwoman, House Appropriations Committee.
     Lucille Roybal-Allard,
       Chairwoman, House Appropriations Committee Subcommittee on 
     Homeland Security.

               RESPONDING TO COMMITTEE DOCUMENT REQUESTS

       In responding to the document request, please apply the 
     instructions and definitions set forth below:


                              INSTRUCTIONS

       1. In complying with this request, you should produce all 
     responsive documents in unredacted form that are in your 
     possession, custody, or control or otherwise available to 
     you, regardless of whether the documents are possessed 
     directly by you.
       2. Documents responsive to the request should not be 
     destroyed, modified, removed, transferred, or otherwise made 
     inaccessible to the Committees.
       3. In the event that any entity, organization, or 
     individual named in the request has been, or is currently, 
     known by any other name, the request should be read also to 
     include such other names under that alternative 
     identification.
       4. Each document should be produced in a form that may be 
     copied by standard copying machines.
       5. When you produce documents, you should identify the 
     paragraph(s) and/or clause(s) in the Committees' request to 
     which the document responds.
       6. Documents produced pursuant to this request should be 
     produced in the order in which they appear in your files and 
     should not be rearranged. Any documents that are stapled, 
     clipped, or otherwise fastened together should not be 
     separated. Documents produced in response to this request 
     should be produced together with copies of file labels, 
     dividers, or identifying markers with which they were 
     associated when this request was issued. Indicate the office 
     or division and person from whose files each document was 
     produced.
       7. Each folder and box should be numbered, and a 
     description of the contents of each folder and box, including 
     the paragraph(s) and/or clause(s) of the request to which the 
     documents are responsive, should be provided in an 
     accompanying index.
       8. Responsive documents must be produced regardless of 
     whether any other person or entity possesses non-identical or 
     identical copies of the same document.
       9. The Committees request electronic documents in addition 
     to paper productions. If any of the requested information is 
     available in machine-readable or electronic form (such as on 
     a computer server, hard drive, CD, DVD, back up tape, or 
     removable computer media such as thumb drives, flash drives, 
     memory cards, and external hard drives), you should 
     immediately consult with Committees' staff to determine the 
     appropriate format in which to produce the information. 
     Documents produced in electronic format should be organized, 
     identified, and indexed electronically in a manner comparable 
     to the organizational structure called for above.
       10. If any document responsive to this request was, but no 
     longer is, in your possession, custody, or control, or has 
     been placed into the possession, custody, or control of any 
     third party and cannot be provided in response to this 
     request, you should identify the document (stating its date, 
     author, subject and recipients) and explain the circumstances 
     under which the document ceased to be in your possession, 
     custody, or

[[Page E108]]

     control, or was placed in the possession, custody, or control 
     of a third party.
       11. If any document responsive to this request was, but no 
     longer is, in your possession, custody or control, state:
       a. how the document was disposed of;
       b. the name, current address, and telephone number of the 
     person who currently has possession, custody or control over 
     the document;
       c. the date of disposition;
       d. the name, current address, and telephone number of each 
     person who authorized said disposition or who had or has 
     knowledge of said disposition.
       12. If any document responsive to this request cannot be 
     located, describe with particularity the efforts made to 
     locate the document and the specific reason for its 
     disappearance, destruction or unavailability.
       13. If a date or other descriptive detail set forth in this 
     request referring to a document, communication, meeting, or 
     other event is inaccurate, but the actual date or other 
     descriptive detail is known to you or is otherwise apparent 
     from the context of the request, you should produce all 
     documents which would be responsive as if the date or other 
     descriptive detail were correct.
       14. The request is continuing in nature and applies to any 
     newly discovered document, regardless of the date of its 
     creation. Any document not produced because it has not been 
     located or discovered by the return date should be produced 
     immediately upon location or discovery subsequent thereto.
       15. All documents should be Bates-stamped sequentially and 
     produced sequentially. In a cover letter to accompany your 
     response, you should include a total page count for the 
     entire production, including both hard copy and electronic 
     documents.
       16. Four sets of documents should be delivered, one set to 
     the majority staff and one set to the minority staff. The 
     Committee on the Budget majority set should be delivered to 
     the majority staff in * * *, and the Committee on the Budget 
     minority set should be delivered to the minority staff in * * 
     *. The Appropriations Committee majority set should be 
     delivered to the majority staff in * * *, and the 
     Appropriations Committee minority set should be delivered to 
     the minority staff in * * *. You should consult with 
     Committee staff regarding the method of delivery prior to 
     sending any materials.
       17. In the event that a responsive document is withheld on 
     any basis, including a claim of privilege, you should provide 
     a log containing the following information concerning every 
     such document: (a) the reason the document is not being 
     produced; (b) the type of document; (c) the general subject 
     matter; (d) the date, author and addressee; (e) the 
     relationship of the author and addressee to each other; and 
     (f) any other description necessary to identify the document 
     and to explain the basis for not producing the document. If a 
     claimed privilege applies to only a portion of any document, 
     that portion only should be withheld and the remainder of the 
     document should be produced. As used herein, ``claim of 
     privilege'' includes, but is not limited to, any claim that a 
     document either may or must be withheld from production 
     pursuant to any statute, rule, or regulation.
       (a) Any objections or claims of privilege are waived if you 
     fail to provide an explanation of why full compliance is not 
     possible and a log identifying with specificity the ground(s) 
     for withholding each withheld document prior to the request 
     compliance date.
       (b) In complying with the request, be apprised that (unless 
     otherwise determined by the Committees) the Committees do not 
     recognize: any purported non-disclosure privileges associated 
     with the common law including, but not limited to, the 
     deliberative-process privilege, the attorney-client 
     privilege, and attorney work product protections; any 
     purported privileges or protections from disclosure under the 
     Freedom of Information Act; or any purported contractual 
     privileges, such as non-disclosure agreements.
       (c) Any assertion by a request recipient of any such non-
     constitutional legal bases for withholding documents or other 
     materials, shall be of no legal force and effect and shall 
     not provide a justification for such withholding or refusal, 
     unless and only to the extent that the Committees (or the 
     chairs of the Committees, if authorized) has consented to 
     recognize the assertion as valid.
       18. If the request cannot be complied with in full, it 
     should be complied with to the extent possible, which should 
     include an explanation of why full compliance is not 
     possible.
       19. Upon completion of the document production, you should 
     submit a written certification, signed by you or your 
     counsel, stating that: (1) a diligent search has been 
     completed of all documents in your possession, custody, or 
     control which reasonably could contain responsive documents; 
     and (2) all documents located during the search that are 
     responsive have been produced to the Committees or identified 
     in a privilege log provided to the Committees.


                              DEFINITIONS

       1. The term ``document'' means any written, recorded, or 
     graphic matter of any nature whatsoever, regardless of how 
     recorded, and whether original or copy, including but not 
     limited to, the following: memoranda, reports, expense 
     reports, books, manuals, instructions, financial reports, 
     working papers, records, notes, letters, notices, 
     confirmations, telegrams, receipts, appraisals, pamphlets, 
     magazines, newspapers, prospectuses, interoffice and intra-
     office communications, electronic mail (``e-mail''), instant 
     messages, calendars, contracts, cables, notations of any type 
     of conversation, telephone call, meeting or other 
     communication, bulletins, printed matter, computer printouts, 
     invoices, transcripts, diaries, analyses, returns, summaries, 
     minutes, bills, accounts, estimates, projections, 
     comparisons, messages, correspondence, press releases, 
     circulars, financial statements, reviews, opinions, offers, 
     studies and investigations, questionnaires and surveys, power 
     point presentations, spreadsheets, and work sheets. The term 
     ``document'' includes all drafts, preliminary versions, 
     alterations, modifications, revisions, changes, and 
     amendments to the foregoing, as well as any attachments or 
     appendices thereto.
       2. The terms ``and'' and ``or'' should be construed broadly 
     and either conjunctively or disjunctively as necessary to 
     bring within the scope of this request any information which 
     might otherwise be construed to be outside its scope. The 
     singular includes the plural number, and vice versa. The 
     masculine includes the feminine and neuter genders.
       3. The terms ``referring'' or ``relating,'' with respect to 
     any given subject, mean anything that constitutes, contains, 
     embodies, reflects, identifies, states, refers to, deals 
     with, or is in any manner whatsoever pertinent to that 
     subject.
       4. The term ``border wall'' means a contiguous, physical 
     wall or other similarly secure, contiguous, and impassable 
     physical barrier along the contiguous land border between the 
     United States and Mexico, including all points of entry, 
     including the wall described in Executive Order 13767 (Jan. 
     25, 2017) and the Administration Fact Sheet entitled 
     ``President Donald J. Trump's Border Security Victory.''
       5. The term ``President's executive action plan'' means and 
     refers to the plan to build a border wall announced by the 
     Administration involving up to approximately $6.725 billion 
     that would be used sequentially as follows: $601 million from 
     the Treasury Forfeiture Fund, up to $2.5 billion under the 
     Department of Defense funds transferred for Support for 
     Counterdrug Activities (10 U.S.C. Sec. 284), and up to $3.6 
     billion reallocated from Department of Defense military 
     construction projects under the President's declaration of a 
     national emergency (10 U.S.C. Sec. 2808).
       6. The term ``Administration'' means and refers to any 
     department, agency, division, office, subdivision, entity, 
     official, administrator, employee, attorney, agent, advisor, 
     consultant, staff, or any other person acting on behalf or 
     under the control or direction of the Executive Branch.
       7. ``You'' or ``your'' means and refers to you as a natural 
     person and the United States and any of its agencies, 
     offices, subdivisions, entities, officials, administrators, 
     employees, attorneys, agents, advisors, consultants, staff, 
     contractors, or any other persons acting on your behalf or 
     under your control or direction; and includes any other 
     person(s) defined in the document request letter.

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