Late last week, Congress passed its most significant legislation yet to address the COVID-19 pandemic, offering a glimmer of hope to Americans struggling right now. Little did we know, when his administration was negotiating the language, President Donald Trump was apparently crossing his fingers behind his back, later declaring as he signed it into law that he was going to ignore a crucial oversight provision in it.
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Presidents trying to rewrite laws while signing them is not a new problem. During the Clinton administration, the Supreme Court struck down a law giving President Bill Clinton line-item veto power in spending bills. Successive presidents have continued to try to erase provisions in laws they don’t like by issuing signing statements, as Trump did on Friday. Both Presidents George W. Bush and Barack Obama on several occasions issued signing statements that would effectively weaken laws empowering inspectors general and protecting whistleblowers, and thereby also weakening congressional oversight authority.
The president can object to a law through veto. However, if he declines to do so, it is unconstitutional for him to refuse to comply with that law. The Constitution gives Congress the power to write legislation, not the president. These signing statements do not carry the force of law.
That doesn’t mean these statements don’t matter. They publicly signal an upcoming battle. It should come as no surprise that the constant nemesis of Congress’s constitutional authorities—the Office of Legal Counsel at the Justice Department—writes these statements. It is long past time for Congress as an institution to push back against these persistent and troubling overreaches by the executive branch and remind it who holds the purse strings.
I am slightly hopeful that Congress will finally respond to the challenge because the political stakes are so high. Few pieces of legislation have been watched around the country with such a ferocious sense of direct impact—Americans know the Coronavirus Aid, Relief, and Economic Security (CARES) Act will have consequences for their everyday lives. Now it comes down to how that money is actually spent.
Budgets and spending are the clearest statement of policy priorities. If economic assistance goes to businesses that do not use those funds to pay their workers, more people will lose their homes and go hungry. If desperately needed resources are diverted away from those in urgent need, and are instead just given to those who are politically connected, constituents can and should blame their representatives in Washington for letting them down, regardless of party.
This is why the oversight provisions in the law are so important. The best way to ensure that the money goes to those who need it is to quickly and robustly enact the accountability mechanisms included in the law—signing statement be damned. This is not merely a procedural afterthought. If done well, the new Pandemic Response Accountability Committee and the special inspector general for pandemic response will be able to deter fraud before it happens, as the successful Recovery Accountability and Transparency Board accomplished in the wake of the 2009 recession.
That means Congress will need to stand behind the new committee and inspector general if agencies follow Trump’s lead and attempt to stonewall them. If an inspector general is denied access to information about how CARES Act funds are being distributed, and who benefits from them, Congress must not simply shrug its shoulders.
Congress will need to exert its constitutional powers, including withholding money from the personal office and salary of any recalcitrant agency head who refuses to turn over information (without compromising the ability of the agency to continue to meet its mission) until they comply with the law. This power of the purse is one of our legislature’s most vital checks on abuse, but it is a power that Congress has been loath to use. But now, with a bright public spotlight on the real implications on people’s lives if CARE Act funds are squandered, it is essential that Congress rise to this challenge.
And finally, Congress also needs to create an entity of its own that can provide needed legal advice and can authoritatively push back on the Justice Department’s Office of Legal Counsel, demoting the office’s opinions that diminish congressional powers to exactly what they are: opinions. While neither the Office of Legal Counsel, nor the signing statements and legal opinions it pens, have the power of law, they are treated as such by Congress.
It is long past time for the Congress to reestablish its constitutional role. And perhaps now as this pandemic ravages the country, it will rise to the occasion.