During Testimony before the House Committee, Mark Sandy, Office of Management and Budget, said concerns about the hold on military aid caused at least two officials within the Office of Management and Budget to resign. At least one of officials expressed the possible "hold" as improper as the Impoundment Act requires the President to notify Congress of his intent to impound funds that had been otherwise authorized by Congress.

If the President is obligated to notify, could the director of OMB unilaterally hold up funds that have been authorized by Congress, thereby relieving the President of providing Presidential notification?

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    I'm kind of confused about the connection between the title and the question in the 2nd paragraph. Are you taking it as a given that the President is obligated to notify Congress, but then asking about a loophole that could occur if the OMB director made the decision unilaterally, without orders from the president? – divibisan Dec 9 '19 at 18:10
  • @divibisan, Yes. FRom what little I've been able to find there is some sort of notification to Congress that is expected and that Congress has 45 days upon which to act (on a request for recission of funds). Perhaps someone can clarify that. Then, secondarily, if there is such an obligation, can the Director of OMB on his own authority "slow walk" the authorization, so as to accomplish a pause or hold, without notifying Congress – BobE Dec 9 '19 at 20:15
  • Here's my 2 cents: I don't know enough about the matter to decide if these are 2 separate questions which should be split up, or if the notification requirement is just a fact, and you should state that definitively, and change the title to focus on the "slow walk" question, but the question would probably benefit from one of those – divibisan Dec 9 '19 at 20:31
  • From Frank Cedeno’s answer, it sounds like the question of whether the president is required to notify Congress is in dispute (at least among Trump’s defenders), so it might make sense to refocus the question on that, or ask that in a new question. – divibisan Dec 9 '19 at 21:54
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    @divibisan See this article [ rollcall.com/news/… ] that seems to suggest that the President is required to notify Congress relative to Foreign aid spending. I have not yet found any citations to support Frank's position (that foreign aid authority lies exclusively with the presidency) – BobE Dec 10 '19 at 5:28

I think I understand the confusion of the person asking the question. The so-called impoundment act, with the full name of Congressional Budget and Impoundment Control Act of 1974 was intended to prevent the president from withholding funds from programs he does not support even though Congress has approved funds for that program. For example, funds that are set for the EPA must be released to the EPA to be committed. The point that needs to be retained from this point is that those funds are available to be committed but do not need to be committed. Just like if your dad gives you $10 to buy movie tickets and you spend $8, you are not required to shred the remaining $2 or face prosecution.

The connection with the Ukraine controversy is that some budget office staffers quit over the feeling that it was inappropriate to withhold funds and cited this rule as the reason they quit. They are completely incorrect that this rule applies. They have every reason to feel what they want and quit for any reason but thinking that this rule applies is completely wrong.

The problem with this rule is 2-fold.

  1. The congressional budget does not and cannot include specific foreign policy requirements. This is a power of the president described in the constitution and even though Congress can attempt to usurp any presidential power, it is up to the executive branch to keep that in check. The budget has a line for foreign aid and it is up to the president to spend it or not.

  2. The rule states that the funds need to be made available for obligations, it does not require the president to spend any of the funds. So there is an account for foreign aid and it is up to the president to do anything he wants.

There is enormous examples of presidents withholding or over extending the budget line for foreign aid since this rule was enacted.

If you just take the year by year summary of appropriation vs disbursement (source explorer.usaid.gov) you can see that spending is often less than appropriations and sometimes higher (2015, 2016).

enter image description here

Now the devil is in the details, never has there been a year without appropriations but what was the money spent on. During the Obama administration, there was a question of lethal aid or not, Trump did not get around to making a change until late 2017 and begin sending lethal aid, but the dollars did make it to Ukraine every year in one way or the other.

This whole discussion is entirely academic since there is still no proof that any aid had been withheld for any extensive period. Certainly not for a year, the numbers do not lie.

The question of aid is so convoluted that it does not make sense to question whether a president can or cannot withhold aid as in all aid. The president can play with some disbursement but in a practical sense, no one agency can stop everything at once since there are so many disbursement from so many agencies. For example just Ukraine in 2019 has as many as 303 sources of disbursements (Source: explorer.usaid.gov):

enter image description here

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    That’s a very interesting discussion of the impoundment act, but your claim that "there is still no proof that any aid had been withheld” is blatantly false, which makes me question the rest of your answer. The fact that there was other aid for Ukraine doesn’t change the central issue of the $391M in frozen security aid. Here are just a few of many citations for that: nytimes.com/2019/10/22/us/trump-impeachment-ukraine.html, nytimes.com/2019/10/23/us/politics/… – divibisan Dec 9 '19 at 21:52
  • @divibisan Here's a source stating the aid was released on Sep 11, 2019, long before any of this became public: npr.org/2019/11/27/783487901/… "One thing all parties in the impeachment saga can agree on: $391 million in security assistance earmarked for Ukraine was withheld this past summer by the Trump White House and released on Sept. 11." Your citations are more than a month after that... – Just Me Dec 9 '19 at 21:58
  • @JustMe Of course the aid was eventually released. That's not in question. There's also no question that it was withheld by the White House since July at least (according to your citation above). I'm not sure why you mention the age of the citations. Of course they were written after the event took place – how could they not? – divibisan Dec 9 '19 at 22:01
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    I have no quarrel with the President's exclusive power to set foreign policy, but appropriations of dollars certain by Congress seems to be in the Congressional bailiwick. I'd have to do some research on this, but I seem to recall that the act of Congress that appropriated funds for Ukraine were conditioned on a certification by the Defense Dept. If the authority for foreign lies exclusively with the President, Congress has no business establishing any conditionality. – BobE Dec 10 '19 at 4:58

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