Re-purposing Appropriated Funds: The Problem with President Trump’s Executive Order
Every year the Congress passes 12 Appropriations Bills to fund the work of the government. These cover the various branches of government. Drafting these pieces of legislation is complex. There are 12 subcommittees each responsible for just one. The bills get pretty discreet in terms of defining how money must be spent. For example, the legislation for the Department of Defense stipulates how much money will go to operations, weapons acquisition, salaries and benefits and many more specific accounts. The money can’t be used for other purposes. The only wiggle room is when the purpose of an account is broadly defined. Congress can pass special appropriations bills for specific purpose such as the CARES Act.
When the President signed his Executive Order on Saturday, he stated, “…I’m taking action to provide an additional or an extra $400 per week in expanded benefits. $400, okay? That’s generous, but we want to take care of people. Again, it wasn’t their fault. It was China’s fault. States will be asked to cover 25% of the costs using existing funding such as the tens of billions of dollars available to them through the coronavirus relief fund. Under this plan, states will be able to offer greater benefits if they so choose. And the federal government will cover 75% of the costs. So, we’re all set up. It’s $400 per week.”
On its face, the idea sounds like a decent compromise. $400/wk or $1600/mo is the halfway point between the $600/wk the Democrats were proposing and the $200/wk the Senate Republicans were considering. But, when you look at the details, things don’t seem so sound.
The White House can’t authorize new funding. That requires an act of Congress. Previously, when the President didn’t get the funds he requested for the border wall, his Administration bypassed Congress by declaring a national emergency and then repurposed funds previously appropriated for other projects. The Sierra Club sued. In July 2019, the Supreme Court ruled in a 5-4 decision that the plaintiff didn’t have standing to sue. The question of legal authority was not litigated. Today, again, the President is seeking to bypass Congress.
Now the President is re-purposing funds from the Disaster Relief Fund (DRF) administered by FEMA. This fund is used to help states and local governments cope with natural disasters associated with hurricanes, flooding events, earthquakes, tsunamis, forest fires, etc. When the President declares a state of emergency, this is one of the requirements for qualifying for this aid. The new Executive Order means that money that was intended for one purpose will now be used for another purpose. The President may not have the authorization to do this. But even if he does, all he is doing is deferring a new funding appropriation. The amount of money in this account won’t last long as it stands. If we have a natural disaster, it will be last even less time. Given the predictions for this hurricane seasons, the fact that this year is 2.4 degrees hotter than average, and lower than average snowfalls in the west, it is likely that the nation will need this funds and more.
The other component of the $400 payment is the 25% kick in that is required of the states. The states were provided some funding under the CARES Act to fund Covid 19 related efforts. The states have already identified targeted uses for this money like improving stocks of PPE, helping pay people who have been hired to do contact tracing, and the like. Now, President Trump is saying, re-purpose that money for additional unemployment payments. The states are already seeing huge budget shortfalls. As Forbes noted, this was a major sticking point for passing the Heroes Act. This re-purposing will just drive layoffs at the State and Local levels of government. It is likely that many Governors won’t agree to the arrangement.
The National Emergencies Act provide the President with broad powers in times of national emergencies. It was preceded by other legislation that were passed in response to the need for the government to respond quickly to natural disasters, wars, and other calamitous events. Of late, the powers have been used in unprecedented ways. And, of course, there are consequences. One can question the Constitutionality of the current Administration’s actions. But the bigger issue that we face is one of leadership. In the face of gridlock, does the use of the Act and its powers substitute for leadership to bring together Americans in the face of crisis?