Congress needs to step up to ensure fiscal reform

OPINION:

In the four weeks since President Trump’s inauguration, his administration has identified billions of dollars in waste, fraud and abuse.

The president set an ambitious goal of restoring fiscal sanity to the federal government and tasked one of the planet’s best disrupters, Elon Musk, with getting our nation’s fiscal house in order. Mr. Musk’s Department of Government Efficiency quickly identified absurd outlays expended by USAID and is now focusing on a bigger fish: the Social Security Administration. Initial reports involving Social Security are concerning because it appears the rolls of beneficiaries exceed the population, which indicates massive amounts of fraud.

The Department of Defense, the Environmental Protection Agency and other departments are also trying to get their respective financial houses in order. Undoubtedly, these agencies will identify billions of dollars in waste. Mr. Musk and agency heads, however, should not be the only officials in Washington committed to this process. Senators and representatives on Capitol Hill should provide necessary legislative authority to ensure the administration’s efforts to cut spending are not halted by the courts.

Identifying and halting wasteful spending is a necessary goal. Without drastic action, the large annual deficits and immense accumulated debt will bankrupt our nation. The accumulated debt is around $36 trillion, a staggering amount that cannot grow.

Does the president (and, by extension, members of his Cabinet) have the authority to make these cuts, and will efforts to stop such actions prevail in the courts?

The answer is not simple, and the president’s power varies based on the language of the specific appropriation passed by Congress. When a federal statute creating a spending program uses discretionary language, the president retains the power to determine how those funds are spent. Examples include laws enacted during the Civil War (appropriating $76 million “as the exigencies of the service may require”) and the Great Depression (appropriating $950 million “for such projects and/or purposes and under such rules and regulations as the president in his discretion may prescribe”). To the extent appropriation legislation provides this discretionary authority, Mr. Trump’s efforts to exercise his delegated authority and withhold spending would probably survive legal challenges.

In foreign affairs, the president has greater authority to determine how and when to spend tax dollars. Cutting funding for USAID (an entity created via executive order) and determining how to allocate foreign federal aid is, therefore, most likely within the sphere of presidential power.

Limits to presidential authority exist within the context of specific domestic appropriations. When Congress specifically directed the executive branch to spend designated funds for domestic purposes, the Supreme Court held, as a matter of statutory interpretation, that the president could not refuse to expend the full amounts authorized.

In Train v. City of New York, the court held that President Nixon had to spend the entire congressionally allocated amount to alleviate water pollution. This decision turned on a matter of statutory interpretation, meaning the law enacted by Congress obligated Nixon to spend the funds. The court did not address the constitutional question of whether the president had the Article II power to decline to spend the funds.

Whether the Constitution obligates a president to spend all funds appropriated for a particular program is an open question that the Supreme Court has not directly addressed. In the 1970s, attorneys for Nixon argued that the power to “impound” federal funds was within his constitutional authority. The Impoundment Control Act provides a mechanism by which a president can delay, reduce or eliminate funding. The Supreme Court, however, has never ruled on whether it is constitutional.

In any event, Congress should heed the political winds and immediately begin enacting legislation reducing spending and shuttering ineffectual government agencies. The legislation will ensure that the president’s laudable efforts to rein in spending and expose fraud will not be undercut by the inevitable lawsuits challenging his actions. Senators and representatives who vacillate will face political accountability and must defend their actions to their constituents.

The reckless and corrupt actions of the administrative state have brought the country to the brink of bankruptcy. Every year, complacent elected representatives and an entrenched bureaucracy have fleeced the American taxpayer for billions. Those days have ended. Congress needs to step up and start passing legislation today. Any delays will hurt the president’s efforts to ensure fiscal stability.

• Michael O’Neill is vice president of legal affairs at Landmark Legal Foundation, a public interest law firm in Leesburg, Virginia.