Sidestepping Congress to Build the Wall

Could President Trump order the construction of his proposed border wall without having Congress specifically authorize the funds to pay for it?

Authorizing funds to pay for the proposed border wall is the central focus in this year’s episode of federal government shutdown theater. The U.S. House of Representatives has approved a total of $5 billion (0.1%) of the U.S. government’s projected $4.4 trillion spending budget for 2019 toward border security improvements that includes money to construct the wall, while the U.S. Senate has countered with a spending proposal of $1.3 billion that includes no wall construction funds. The lack of a compromise in setting the amount of this spending authorization that President Trump would approve is why the federal government is now partially shut down, as Washington D.C. politicians put on their nearly annual political performance.

But former House Oversight Committee chairman Jason Chaffetz argues that President Trump could sidestep Congressional approval for the improved border barricade and use funds that haven’t been authorized to pay for it. Now a Fox News contributor, Chaffetz explains how that might happen in a recent op-ed:

Can the government spend money that has not been specifically authorized by Congress? In theory—no. In practice? Absolutely.

Each year the government spends hundreds of billions of dollars on things that are not specifically authorized by Congress. Both Democrats and Republicans have been complicit in this practice.

President Donald Trump, to his credit, has worked hard to get his wall funding properly authorized. But he may ultimately do exactly what presidents before him have done: take advantage of the broken Congressional process.

Washington’s dirty little secret is that unauthorized spending is not even uncommon anymore. As a freshman member of Congress, this truth stunned me—and I was not alone. By my estimation, there were many in the body who disapproved of the practice. But to our disappointment, the body as a whole was not inclined to address the issue.

How much money are we talking about? In 2016, the Congressional Budget Office reported that the U.S. government spent over $310 billion that wasn’t authorized by the Congress for that fiscal year. The $3.7 billion difference between the House and Senate budget bills for border security now being argued about on Capitol Hill, about 1.2% of the 2016’s total unauthorized spending total, could be scrounged from these funds.

Then, if President Trump wanted to escalate the stakes in this year’s government shutdown revue, he could force Congress to address the issue by ordering the shutdown of all the U.S. government’s nonessential functions whose money to operate comes from these unauthorized funds.

Politico‘s Danny Vinik described what would have to happen to resolve the issue back in 2016.

What can be done to ensure lawmakers enact reauthorizations and conduct effective oversight? Not much, from the outside. It’s mostly up to Congress itself. Empowering committee chairs would encourage them to become more deeply involved in their issues, experts say. Many authorizers say that congressional leaders’ disinterest in passing authorization bills has discouraged authorizers from even trying to pass bills out of committee. There’s some good news on that front: Speaker Paul Ryan (R-Wis.) has said he wants to return power to individual lawmakers and move to a more normal budget process. Whether that will lead to better oversight is yet to be seen, but lawmakers are hopeful.

“Oversight and authorizations are one thing that Congress has failed over the past decade to do,” said Sen. Cory Gardner (R-Colo.). “And I think going through regular order and an appropriations process will allow us to do a better job of oversight.”

If that doesn’t work, it’s hard to see what will. Ultimately, Congress takes action when the political stakes are high. And experts say that’s almost never the case for day-to-day oversight of smaller government agencies and programs. Until the media and public take a greater interest in these issues, lawmakers can continue to ignore them—and the number of unauthorized programs will continue to grow.

If nothing else, President Trump has demonstrated that he has a unique ability to drive the passions of his political opposition in the media. Wouldn’t it be something if it drove greater visibility and accountability in how the U.S. government spends money?

Craig Eyermann is a Research Fellow at the Independent Institute.
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