Today's Article
A GAO decision lays
out
why the Trump
Administration's
withholding
s of funds to
Ukraine are
Constitutional crimes.
The American Spark
How Trump Violated The Constitution On Ukraine Funds

By Cliff Montgomery - Jan. 30th, 2020

If you have been searching for one clear-cut, impartial source that explains the “Ukraine Issue” and the
subsequent impeachment investigation of Donald Trump, the
American Spark has found it: A few weeks
ago, the U.S. Government Accountability Office (GAO) released a nine-page legal assessment of the matter
that is both detailed and fairly easy to understand.

Yesterday,
the Spark quoted from the study’s ‘Digest’ and ‘Background’ sections; today, we offer our readers
the heart of the matter - a clear-cut ‘Discussion’ section from the GAO report, which lays out why the Trump
Administration
's withholdings of funds to Ukraine are Constitutional crimes.

Readers will note that the GAO never discusses the back-door political wrangling that appears to have been
at the center of the Ukraine matter; the Agency ensures that its analysis remains a strictly legal one.

One last thing: we have tried to keep many legal references mentioned by the GAO in its study, so that all
concerned readers may see for themselves the strong basis for the Agency’s conclusions. Sometimes, the
legal references are described by the GAO via acronyms, which can be hard to keep straight. So the
Spark
has provided its readers with an explanation of each acronym found in the statements quoted below:

OMB - Office of Management and Budget

USAI - Ukraine Security Assistance Initiative

U.S. Const. - U.S. Constitution

Id. - Essentially means, “Same document as quoted above.”

ICA - Impoundment Control Act

U.S.C. - U.S. [Legal] Code

FMF - Foreign Military Financing


DISCUSSION

At issue in this decision is whether OMB had authority to withhold the USAI funds from obligation.

“The Constitution specifically vests Congress with the power of the purse, providing that ‘No Money shall be
drawn from the Treasury, but in Consequence of Appropriations made by Law (U.S. Const. art. I, § 9, cl. 7).”

“The Constitution also vests all legislative powers in Congress and sets forth the procedures of bi-cameralism
and presentment, through which the President may accept or veto a bill passed by both Houses of Congress,
and Congress may subsequently override a presidential veto (Id., art. I, § 7, cl. 2, 3).

“The President is not vested with the power to ignore or amend any such duly enacted law (See
Clinton v. City
of New York
, 524 U.S. 417, 438. [Decided in] 1998, [the ruling pointed out that] the Constitution does not
authorize the President ‘to enact, to amend, or to repeal statutes’).

“Instead, he must ‘faithfully execute’ the law as Congress enacts it (U.S. Const., art. II, § 3).

“An appropriations act is a law like any other; therefore, unless Congress has enacted a law providing
otherwise, the President must take care to ensure that appropriations are prudently obligated during their
period of availability.” [...]

“The Constitution grants the President no unilateral authority to withhold funds from obligation.”

“Instead, Congress has vested the President with strictly circumscribed authority to impound, or withhold,
budget authority only in limited circumstances as expressly provided in the ICA (See 2 U.S.C. §§ 681–688).

“The ICA separates impoundments into two exclusive categories—
deferrals and rescissions. The President
may temporarily withhold funds from obligation—but not beyond the end of the fiscal year in which the
President transmits the special message—by proposing a ‘deferral’ (2 U.S.C. § 684).

“The President may also seek the permanent cancellation of funds for fiscal policy or other reasons, including
the termination of programs for which Congress has provided budget authority, by proposing a ‘rescission’ (2
U.S.C. § 683).

“In either case, the ICA requires that the President transmit a special message to Congress that includes the
amount of budget authority proposed for deferral or rescission and the reason for the proposal (2 U.S.C. §§
683–684). These special messages must provide detailed and specific reasoning to justify the withholding, as
set out in the ICA (See 2 U.S.C. §§ 683–684).

“Vague or general assertions are insufficient to justify the withholding of budget authority. The burden to justify
a withholding of budget authority rests with the executive branch.

“There is no assertion or other indication here that OMB intended to propose a rescission. Not only did OMB
not submit a special message with such a proposal, the footnotes in the apportionment schedules, by their
very terms, established dates for the release of amounts withheld. The only other authority, then, for
withholding amounts would have been a deferral.

“The ICA authorizes the deferral of budget authority in a limited range of circumstances: to provide for
contingencies; to achieve savings made possible by or through changes in requirements or greater efficiency
of operations; or as specifically provided by law (2 U.S.C. § 684(b) ). No officer or employee of the United
States may defer budget authority for any other purpose (Id).

“Here, OMB did not identify—in either the apportionment schedules themselves or in its response to us—any
contingencies as recognized by the ICA, savings or efficiencies that would result from a withholding, or any
law specifically authorizing the withholding. Instead, the footnote in the apportionment schedules described
the withholding as necessary ‘to determine the best use of such funds.’ In its response to us, OMB described
the withholding as necessary to ensure that the funds were not spent ‘in a manner that could conflict with the
President’s foreign policy.’

“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. Thus, the deferral of USAI funds was improper under the
ICA.

“When Congress enacts appropriations, it has provided budget authority that agencies must obligate in a
manner consistent with law. The Constitution vests lawmaking power with the Congress (U.S. Const., art. I,
§ 8, cl. 18). The President and officers in an Administration of course may consider their own policy objectives
as they craft policy proposals for inclusion in the President’s budget submission. [...] However, once enacted,
the President must ‘take care that the laws be faithfully executed’ (See U.S. Const., art. II, § 3).

“[Thus] Enacted statutes, and not the President’s policy priorities, necessarily provide the animating frame-
work for all actions agencies take to carry out government programs. [...] Faithful execution of the law does
not permit the President to substitute his own policy priorities for those that Congress has enacted into law.”
[...]

“The burden to justify a withholding of budget authority rests with the executive branch. Here, OMB has failed
to meet this burden. We conclude that OMB violated the ICA when it withheld USAI funds for a policy reason.

Foreign Military Financing

“We also question actions regarding funds appropriated to State for security assistance to Ukraine. In a series
of apportionments in August of 2019, OMB withheld from obligation some Foreign Military Financing (FMF)
funds for a period of six days. These actions may have delayed the obligation of $26.5 million in FMF funds.”

“An additional $141.5 million in FMF funds may have been withheld while a congressional notification was
considered by OMB.”

“We have asked both State and OMB about the availability of these funds during the relevant period.” [...]

“State provided us with limited information. [...] OMB’s response to us contained very little information
regarding the FMF funds.”

“As a result, we will renew our request for specific information from State and OMB regarding the potential
impoundment of FMF funds in order to determine whether the Administration’s actions amount to a with-
holding subject to the ICA, and if so, whether that withholding was proper. We will continue to pursue this
matter.

CONCLUSION

“OMB violated the ICA when it withheld DOD’s USAI funds from obligation for policy reasons. This
impoundment of budget authority was not a programmatic delay.

“OMB and State have failed, as of yet, to provide the information we need to fulfill our duties under the ICA
regarding potential impoundments of FMF funds. We will continue to pursue this matter and will provide our
decision to the Congress after we have received the necessary information.

“We consider a reluctance to provide a fulsome response to have constitutional significance.

“GAO’s role under the ICA—to provide information and legal analysis to Congress as it performs oversight of
executive activity—is essential to ensuring respect for and allegiance to Congress’ constitutional power of the
purse. All federal officials and employees take an oath to uphold and protect the Constitution and its core
tenets, including the congressional power of the purse. We trust that State and OMB will provide the
information needed.”



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