Words Matter in Disputes About Executive and Legislative Authority

This power over the purse may, in fact, be regarded as the most complete and effectual weapon with which any constitution can arm the immediate representatives of the people, for obtaining a redress of every grievance, and for carrying into effect every just and salutary measure.

The Federalist No. 58 (James Madison)

The Administration’s plan to eliminate two regions of the Federal Labor Relations Authority (FLRA) has generated substantial pushback from a bipartisan group of 13 Senators and from former Regional Directors of the FLRA. The former Regional Directors said “… we believe this decision, if accepted, will adversely affect not only the efficient performance of that agency’s mission, but will also negatively impact the very significant progress which has been made in recent years to reduce reliance on confrontational labor relations in the federal sector, while also encouraging alternative methods of dispute resolution.”

The Senators made similar arguments, but also focused on the provisions of the 2018 Omnibus Appropriations Act, which says “None of the funds made available in this or any other appropriations Act may be used to increase, eliminate, or reduce funding for a program, project, or activity as proposed in the president’s budget request for a fiscal year until such proposed change is subsequently enacted in an appropriation act, or unless such change is made pursuant to the reprogramming or transfer provisions of this or any other appropriations act.” In other words, they argue the planned closures violate the law because they are using appropriated funds for a purpose prohibited by Congress.

Office of Management and Budget Director Mick Mulvaney countered that argument with one of his own – that the closures do not constitute a “reorganization” and are not in violation of the terms of the law. So who is right?

I am not going to get into the merits of the planned closures and will limit my comments to the issue of compliance with the appropriations act.  And on that the answer is as clear as mud. Both are correct. Both are wrong. How can that be possible? It is because of the language of the appropriations act. The language the Senators cited does not specifically prohibit reorganizations. It requires congressional approval to “increase, eliminate, or reduce funding for a program, project, or activity as proposed in the president’s budget request ….” If the language specifically prohibited reorganizations, the matter would be far more clear. There is language in 5 CFR 351 that defines a reorganization as “… the planned elimination, addition, or redistribution of functions or duties in an organization.” There is also language in the Reorganization Act (5 U.S. Code § 902) that defines a reorganization as “a transfer, consolidation, coordination, authorization, or abolition, referred to in section 903 of this title.”

This disagreement could have been avoided entirely if the appropriations act language had been more artfully constructed. The language could have barred reorganizations as defined in the U.S. Code or the Code of Federal Regulations. It could have limited transferring work from one organization to another, or reducing the number of employees. As it is, the language has just enough vagueness to open the door for the Executive Branch to interpret it in its own way.

The disagreement between the Executive and Legislative Branches is difficult to resolve, because there is no clear enforcement mechanism. An employee or union who is adversely affected by the decision might go to court to try to stop it, but that is not likely to happen quickly enough. The House or Senate could go to court too, but primary mechanism the Congress has to deal with this type of issue is the appropriations process itself. I was involved in one such disagreement where the result was seeing our budget whacked the following year. Neither going to court nor punishing the agency a year later is a great or timely way to resolve a dispute.

What I would love to see in the future is much more carefully crafted language. This is not the first time such a disagreement has happened. We sometimes see language that is unclear, not specific and even contradictory. It is easy to understand why. The Omnibus Appropriations Act was the product of long and painful negotiations. It was changed, then changed again and again. It is almost 900 pages in length.

In this case, it is clear that the intent was to limit the Administration’s ability to unilaterally implement its proposed reductions. But the intent may not matter if the plain language of the Act does not support the intent. The Executive Branch almost always under spends the money that is appropriated. The reason is the Anti Deficiency Act. Agencies are prohibited from overspending and government accounting is not precise enough to spend every dollar without risking becoming anti-deficient. So the problem becomes how much underspending can they do? One percent? Three percent? Ten percent? Congress passed the Congressional Budget and Impoundment Control Act of 1974 after President Nixon refused to spend money that was appropriated. Much like an appropriations act, the Impoundment Act does not have a good enforcement mechanism.

I spent my federal career in the Executive Branch, so I tend to see things from that perspective. People who serve in the Legislative Branch typically see it differently. They would argue that the intent of the Congress was clear, so the Executive should defer to it. These questions of statutory construction are always going to be with us, because no one can write perfect language every time and because the Executive Branch wants the freedom to act. In appropriations matters, the Congress wants to restrict the ability of the Executive Branch to act on its own because the Constitution intends for them to do so. For that to be effective, they have to be very clear in writing those restrictions. Even if that happens, we should expect to see continued give and take between the Executive and Legislative Branches. The separation of powers that is built into the U.S. Constitution is a critical part of our system of government and it is not going anywhere.