By: Mark Paoletta // Originally appeared in the Federalist
Last Congress, many Democrats, including Rep. John Yarmuth, the chairman of the House Budget Committee, claimed the Trump administration’s Office of Management and Budget (OMB) broke the law when it paused the obligation of funds to Ukraine for 50 days to determine the best use for them.
On the very first day of his administration, however, President Biden directed that funding specifically appropriated to build the wall along the southern border be paused for 60 days to determine how best to spend those funds. Press reports indicate that all funding for the wall construction has stopped.
Biden has now held these funds longer than OMB held the Ukraine funding. But Yarmuth has stayed silent about the Biden hold on funds, demonstrating that the congressman cares nothing about the law and only about partisan politics. In contrast to this hypocritical silence, 40 Republican senators have requested that GAO look into whether the Biden hold is unlawful.
As OMB general counsel during the Trump administration, I authorized the Ukraine funds pause so President Trump could consider the best use of those funds, consistent with the law and his policy. Although those funds were designated for Ukraine, there were a variety of ways they could be spent to benefit the government of Ukraine, from purchasing weapons to blankets. This pause was entirely appropriate and legal, and once the president made a decision OMB made the funds available and they were obligated before the end of the fiscal year.
The Government Accountability Office (GAO), which is simply an instrumentality of Congress, rushed out an opinion during the failed partisan impeachment effort claiming that OMB had violated the Impoundment Control Act by pausing the spending of those Ukraine funds. GAO concluded that the president could never pause funds to conduct a policy review to determine the best use of those funds, even if the law allowed for a variety of ways for the funds to be spent.
Based on this GAO reasoning, President Biden’s order is an unlawful act and a violation of the Impoundment Control Act. Yet Yarmuth, who accused the Trump OMB’s of breaking the law for pausing funds and cited this very GAO opinion, has not raised a single objection to President Biden’s hold. GAO has also remained silent and done nothing. This is plainly hypocrisy and the use of double standards.
OMB’s pause on the obligation of the Ukraine funds was in fact perfectly legal and appropriate pending a policy review. GAO’s opinion (and Yarmuth’s position) is legally wrong. It’s also reckless to argue that a president does not have the discretion to determine how best to spend funds when the law in fact provides that discretion.
For example, last year, as it has done for many years, Congress appropriated a lump sum of funding to the State Department for international organizations. The World Health Organization (WHO) is one of those qualifying international organizations, but President Trump did not want to provide funding to WHO because of its complicity in aiding China in lying and covering up the spread of COVID 19. As OMB general counsel, I determined that the president had the legal authority to pause the obligation of those funds to determine where best to spend them, and the funds were obligated to other international organizations, consistent with the law.
But since GAO rejects this executive branch latitude with respect to pausing funds for a policy review, GAO has no option other than to find that President Biden’s pause of the border wall funds for a policy review is unlawful. It should forthwith issue an opinion stating that the Biden administration has broken the law.
Most important, Yarmuth, based on his support of GAO’s position and his accusations last year, should publicly object to the Biden administration’s hold or admit he was simply playing partisan politics when he criticized OMB for pausing funding during the Trump administration to determine how best to spend those funds. But I won’t hold my breath.
Mark Paoletta served as OMB general counsel in the Trump administration from January 2018 to January 2021. He is now a senior fellow at the Center for Renewing America. Follow him on Twitter @MarkPaoletta.