General Counsel for the GAO issued a press release today:
“Today, GAO issued a legal decision concluding that the Office of Management and Budget violated the law when it withheld approximately $214 million appropriated to DOD for security assistance to Ukraine. The President has narrow, limited authority to withhold appropriations under the Impoundment Control Act of 1974. OMB told GAO that it withheld the funds to ensure that they were not spent “in a manner that could conflict with the President’s foreign policy.” The law does not permit OMB to withhold funds for policy reasons.”
Well after the press release — and after giving the MSM to push stories about the “BOMBSHELL” . . . the GAO finally put the decision on its website. It is a joke. The GAO misstates the law and ignores the constitutional issues their interpretation of the law raises in respect to the President’s responsibility for foreign policy. Still, the MSM has their headlines, so mission accomplished from that perspective.
For starters, as I’ve written previously:
Aid for Ukraine was part of Public Law 116-6, which Trump signed on February 15, 2019. Nothing in the law states specifically when the funds must be released (just as there was none in the 2016 law, when Joe Biden threatened to withhold aid from Ukraine), with the only proviso being that the administration must disburse before the fiscal year in question ends. When it comes to Trump and aid to Ukraine, his administration transferred or otherwise made the 2019 funds available to Ukraine by September 10, 2019, well before the end of the fiscal year.
The Impoundment Control Act (ICA) contains a procedure for the President to follow if he intends that the funds are “to be reserved from obligation for such fiscal year . . .” There is no requirement in the law that the President immediately release them at a specific point other than before the end of the fiscal year, as in fact was done in this case. Nor is there a requirement that the President notify Congress during any period in which he is merely considering whether to rescind the obligation. If Congress wants to rewrite the law, they can. GAO cannot.
That said, where the GAO goes completely off the rails is where they claim that the ICA does not allow even for a temporary hold on funds at any point during the fiscal year for “policy reasons.” Horse manure. Nowhere does that appear in the ICA. To the contrary, 2 U.S. Code § 683 is completely open ended.
Whenever the President determines that all or part of any budget authority will not be required to carry out the full objectives or scope of programs for which it is provided or that such budget authority should be rescinded for fiscal policy or other reasons . . . [emphasis added]
One, the GAO cherry picks legislative history to add restrictions not in the plain text of the statute. Little is more settled in the law than the maxim that, if the statutory language is clear and unambiguous on its face, then the plain meaning of that language controls. Carcieri v. Salazar, 555 U.S. 379, 387 (2009).
Two, to the extent the GAO is stating that the President has no role in foreign policy decisions as regards foreign aid, that is ludicrous. As David Rivkin wrote in his blog and at the Wall St. J.:
Thomas Jefferson impounded funds appropriated for gunboat purchases, Dwight Eisenhower impounded funds for antiballistic-missile production, John F. Kennedy impounded money for the B-70 bomber, and Richard Nixon impounded billions for highways and urban programs. Congress attempted to curtail this power with the Impoundment Control Act of 1974, but it authorizes the president to defer spending until the expiration of the fiscal year or until budgetary authority lapses, neither of which had occurred in the Ukraine case.
Presidents often delay or refuse foreign aid as diplomatic leverage, even when Congress has authorized the funds. Disbursing foreign aid—and withholding it—has historically been one of the president’s most potent foreign-policy tools, and Congress cannot impair it. Lyndon B. Johnson used the promise of financial aid to strong-arm the Philippines, Thailand and South Korea to send troops to Vietnam. The General Accounting Office (now called the Government Accountability Office) concluded that this constituted “quid pro quo assistance.” In 2013, Barack Obama, in a phone conversation with Egyptian President Abdel Fattah Al Sisi, said he would slash hundreds of millions of dollars in military and economic assistance until Cairo cooperated with U.S. counterterrorism goals. The Obama administration also withheld millions in foreign aid and imposed visa restrictions on African countries, including Uganda and Nigeria, that failed to protect gay rights.
The GAO’s reading new requirements into the law doesn’t pass the laugh test. If that is what the Democrats are going to charge, then witness number one at the impeachment trial needs to be Joe Biden to discuss the authority he felt that he had to negotiate withhold foreign aid approved by Congress in order to require Ukraine to fire their special prosecutor.