Adam Isacson

The New York Times reports:

The State Department issued a statement late on Friday saying: “At the secretary’s instruction, we are carrying out the president’s direction and ending FY 2017 and FY 2018 foreign assistance programs for the Northern Triangle. We will be engaging Congress as part of this process.”

I’m not a lawyer, and not a foreign aid appropriator. I’ve asked a couple of people, but don’t know if I’ll get responses over the weekend. If I do, I’ll edit this post if necessary in blue text. But here’s why I don’t think President Trump’s “canceling” of aid to Central America’s Northern Triangle will succeed, except perhaps during the remainder of this fiscal year. It may be up to the judicial branch to sort this out.

1. The Constitution gives Congress “the power of the purse.”

Appropriations aren’t just suggestions. When Congress has specifically appropriated aid to a country, foreign aid law provides specific reasons why it can be canceled. These include military coups, gross human rights violations, drug decertifications, and others. “The president’s mad” isn’t one of those reasons.

Giving money that was prohibited from being appropriated was at the heart of the Iran-Contra scandal in the 1980s. Not giving money that was specifically appropriated? Similar, with some exceptions noted below.

2. The Impoundment Control Act of 1974 specifically prohibits the president from withholding appropriated funds.

Under this law, rescinding funds requires congressional approval. Wikipedia explains: “The Act was passed in response to feelings in Congress that President Nixon was abusing his power of impoundment by withholding funding of programs he opposed.” Sound familiar?

3. Trump could abuse his reprogramming authority, but it would cost him.

Here’s where it gets tricker. What if the White House proposes not to withhold money, but to transfer the Central America aid to another country? There must still be nearly a billion dollars in the pipeline for 2017 and 2018. What if Trump wants to give it to, say, Israel instead?

He can do that—but there will be consequences. Section 634A of the Foreign Assistance Act only requires that Congress be notified in detail of any “reprogramming” of assistance, 15 days in advance.

But the president would pay a huge price if the reprogramming were to happen despite congressional opposition. Under longstanding custom, if the chairman of the responsible congressional committee receiving the notification disagrees with it, he/she can place a “hold” on it and keep it from happening. Negotiations usually ensue. If the president ignores the hold, it’s assumed that the committee chairman would retaliate against the president’s priorities in the next year’s funding bill. The “notification” requirement has teeth because you don’t want to piss off appropriators or authorizers who have power over your budget.

A similar episode is happening right now with the House defense committees. They were notified this week of a reprogramming of $1 billion from Defense Department personnel accounts into the Defense counter-drug account, which allows spending on barriers—Trump’s “border wall”—for counter-drug purposes. House Armed Services Chairman Rep. Adam Smith (D-Washington) responded to the notification with a letter refusing the reprogramming. Smith probably doesn’t have the power to do that, but the Pentagon may pay a big price in future budgets for defying him.

These two cases of massive reprogrammings in the face of strong congressional opposition are setting us up for a constitutional crisis. Why bother having an appropriations process at all if the executive branch can just go ahead and defy it anytime it wants by checking a “notification” box?

4. There’s some fuzzy “up to” language in the appropriation.

A potential minefield is in the 2018 appropriations law, which tells the State Department that “up to $615,000,000 may be made available for assistance for countries in Central America.” That “up to” language could be a problem: isn’t “zero dollars” technically an amount “up to $615 million?” But probably not, because of the next point.

5. But Central America aid must be spent as laid out in the bill’s report language.

The foreign aid bill comes with an explanatory statement that, for some countries, includes a table specifying exactly, line by line, how Congress intends the aid money to be spent for that country. Every year’s foreign aid appropriation law has included such a table for Central America in its explanatory statement.

Section 7019 of the 2018 foreign aid bill states plainly, “funds appropriated by this Act under titles III through V shall be made available in the amounts specifically designated in the respective tables included in the explanatory statement.” So never mind the “up to” language: Congress has required Central America to get specific amounts of funds according to a line-by-line table.

• The 2017 table is on page H4055 of this report.
• The 2018 table is on page H2851 of this report.
• The 2019 table is on page 864 of this report.

However: subsection (b) of Section 7019 does allow “deviations” from that table. But only “to respond to significant, exigent, or unforeseen events, or to address other exceptional circumstances directly related to the national interest.” The White House could seek to drive through that loophole by claiming that an “exceptional circumstance” calls for moving all aid away from Central America. However, 7019(b) also requires “prior consultation with, and the regular notification procedures of, the Committees on Appropriations” before any “deviation.” Consultation is more than just notification, so using the 7019(b) loophole would involve a big battle between the Trump administration and appropriators.

6. Some government-to-government aid could be reprogrammed through “decertification.”

The aid for the central governments of El Salvador, Guatemala, and Honduras came with conditions. 25 percent of it stays “in the freezer” until the Secretary of State certifies that those countries are doing more to discourage migration and combat smuggling. Another 50 percent is held up until the Secretary certifies that those countries are making improvements on twelve measures regarding human rights, citizen security, anti-corruption, and similar values.

If those countries are determined not to be making progress, that 75 percent can be reprogrammed away to other countries.

Note, though, that this condition only applies to aid to the central governments of those countries. Aid to provincial or municipal governments, judicial branches, or non-governmental entities is not affected by this certification requirement. So this is probably not the vehicle the administration would choose if it wants to attempt a total cutoff of aid to Central America.

It’s going to be a battle.

No matter what, it could take a few months for Congress—and who knows, maybe the courts—to resolve this. In the meantime, if you’re Russia or China, or even Iran, and you want to spend a little money filling a vacuum of diplomatic and economic engagement deep in the United States’ backyard, then this is your moment to write some checks and strike up some new relationships.