Congressional action on the FY2021 appropriations bills comes amid ongoing efforts by the Trump Administration to redirect DOD funding to construct barriers along the U.S.-Mexico border. On February 13, 2020, the DOD transferred $3.8 billion from defense procurement programs to the Army Operation and Maintenance account for use by the Army Corps of Engineers to construct additional barriers along the southern border. The reprogramming repeated, in part, a process the department undertook twice in 2019 (totaling $2.5 billion) in conjunction with a separate set of emergency transfers ($3.6 billion). DOD did not seek prior approval from the congressional defense committees for the transfers in support of DHS counterdrug activities pursuant to 10 U.S.C. §284, as required by DOD Financial Management Regulation.
The Administration has argued that funding transfers for border-barrier construction are authorized by Sections 8005 and 9002 of the annual defense appropriations act, among other federal laws. Defense Secretary Mark Esper said of the February 13, 2020, reprogramming action: “I know that is legally available to us.”
While DOD Financial Management Regulation requires congressional prior approval of certain reprogramming actions, the department does not view the requirement as legally binding. Although explanatory statement language accompanying the annual Department of Defense Appropriations Act typically directs the Secretary of Defense to seek congressional prior approval for reprogrammings above certain thresholds, the Supreme Court has held that report language, alone, is not law and therefore not legally binding. GAO has reached a similar conclusion.
That was from an excellent CRS report by Brendan McGarry, “DOD Transfer and Reprogramming Authorities: Background, Status, and Issues for Congress.”
An interesting historical note, the GAO’s conclusion cites the 1975 LTV protest of a Navy contract award for a derivative of the YF-17 (which became the F-18) when Congress, through a conference report, said the Navy shall select a derivative of the winner of the lightweight fighter competition — and the Air Force selected the YF-16 over the YF-17.
Similar to what’s put into a conference report, the budget justification documents submitted by the Pentagon and approved by Congress isn’t legally binding. Only what’s put in the NDAA and Appropriations Act. Today’s process of Congressional approval is largely based on an atmosphere of “comity and trust.” Certain things are binding, like the General and Special Transfer Authority, which is given a limit of $4B and $2B in the FY2020 Appropriations Act (and explains the border wall reprogramming’s level at $3.8B).
I think the worst part of all this is that Congress rightfully has the power of the purse, but it can only exercise that power by pre-specifying everything it wants into law. The state of “comity and trust” allows the Congress to actively manage the executive branch and make de facto administrative decisions using prior approvals and other means. Congress members have gotten used to that kind of control, which suits their interests.
It’s an interesting concept that Congress largely controls the executive branch through the budget process. Congress also has to power to promote flag officers and approve presidential appointments. But it seems like Congress basically wants the power to administer the executive branch without specifying the requirements into law. In one sense, that sounds like the righteous move from the perspective of a republic of elected officials. But the founding fathers created three separate branches, and the president is also elected. What’s the purpose of the president if Congress administers his departments without going through the legislative process to write it into law?
The budget process should be viewed as a process to arrive at a binding contract between the Congress and the Executive. Because the operations of the federal government are extremely complex, it is nearly impossible to write a contract specifying exactly what should be done over the following years. The budget contract is a poor mechanism for (1) making sure the principal (Congress) gets what it wants; and (2) making sure the agent (the president) is able to get things done efficiently.
If Congress can’t get executive branch leaders to basically swear allegiance to the existing processes of prior approval, then I suspect it will take even stronger control by specifying everything even more rigorously. That pushes in the exact opposite of the direction the Department of Defense was moving. The Space Force, for example, requested greater budget flexibility in order to perform portfolio management. The Senate Armed Services Committee agreed with the principle of expanding mission-based budgeting. But it’s the Appropriations committees which see the greatest threat from the reprogramming issue. The HAC-D wrote:
The Committee finds that one effect of this consolidation would be the increased ability of the Department of Defense to realign funding among different activities without seeking prior congressional approval. The granting of additional budget flexibility to the Department is based on the presumption that a state of trust and comity exists between the legislative and executive branches regarding the proper use of appropriated funds. This presumption presently is false.
The border wall is a rogue issue unrelated to the real business of the Department of Defense. It is unfortunate that these hard questions leading to schisms are happening due to Trump’s political issue.
I did not realize that the reprogramming thresholds were not statutory. Diverting funds – in the bililons – should require Congressional approval. And you’re right, the timing sucks in that there seems to be movement behind the idea of giving the DoD more freedom with moving money like true portfolio management (Space Force request, 809 Panel, Gen Bunch calling for it,…).
Yeah, everyone talks about portfolio management but its hard to actually do it without some funding flexibility. While the DoD should have increased flexibility to move funds without prior approval, there should be consistent communication and Congress should be in a position to disapprove movements before it gets obligated (for example, the border wall).