Daily Labor Report®

Congress Reins in Trump’s Federal Reorg Planning (1)

March 26, 2018, 11:40 AMUpdated: March 26, 2018, 7:22 PM

The $1.3 trillion omnibus spending bill signed by President Donald Trump March 23 includes language that restricts him from reorganizing federal agencies without congressional approval, an Obama administration HR official said.

Jeff Neal was the top human resources official in President Barack Obama’s Department of Homeland Security.

“This is very specific language to keep the administration from doing things on their own that administrations might have done in the past,” Neal, now a senior vice president at management consultant ICF, told Bloomberg Law.

What stands out is language that references the president’s budget proposal and specifies that Congress has the final say on federal spending, he said.

Neal cited Section 740 of the 2,000-plus-page spending bill: “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.”

The White House and its Office of Management and Budget didn’t respond March 26 to requests for comment.

‘Disconnect’ Between Proposed, Actual Budgets

The language referenced by Neal is “reflective of a real disconnect between what the president is proposing and Congress is enacting,” Robert Shea, an Office of Management and Budget official during the George W. Bush administration, told Bloomberg Law March 26.

Shea said he’s not aware of similar language in earlier appropriations bills.

Members of the House and Senate appropriations committees “don’t want agencies to, for instance, start spending at a much lower level in anticipation of an austere budget” when Congress is providing for higher levels of spending, Shea said.

“When standing up for their prerogatives, members of appropriations committees can be decidedly bipartisan,” said Shea, who is now with management consultant Grant Thornton in Alexandria, Va.

The OMB issued a memorandum on April 12, 2017, that told federal agencies to submit reorganization plans by September of that year for use in the administration’s FY 2019 budget proposal. The memo from OMB Director Mick Mulvaney said the agencies’ plans should include “long-term workforce reductions.”

The White House FY 2019 budget proposal, released Feb. 12, didn’t include the text of the reorganization plans.

Agencies’ Plans Under Wraps

Some members of Congress are questioning why the administration’s agency reorganization plans aren’t being made publicly available.

It’s remarkable that the Republican-controlled Congress is concerned enough about the plans to include restrictive language in an appropriations bill, Rep. Elijah Cummings (D-Md.), the top Democrat on the House Oversight and Government Reform Committee, said in a statement provided to Bloomberg Law.

“While this is a start, a number of agencies are still getting away with keeping their reorganization plans hidden from Congress,” Cummings said.

Section 740 appears to restate current law, Philip Joyce, a professor at the University of Maryland’s School of Public Policy, told Bloomberg Law. It’s well established that appropriations bills, and not budget proposals, determine how taxpayer dollars are spent, he said.

“The question in my mind is why is such a provision necessary,” Joyce said. The answer may be that Congress is anticipating “potential unilateral action from the president,” he said.

‘Explanatory Statements’ for Agencies

“Explanatory statements” issued by Congress to accompany the spending bill signed by the president also could restrict the administration from proceeding with agency reorganizations.

The statement for the Department of Agriculture, Commodity Futures Trading Commission, and Farm Credit Administration says, for example, that the agencies “should be mindful of Congressional authority to determine and set final funding levels for fiscal year 2019.”

“Therefore, the agencies should not presuppose program funding outcomes and prematurely initiate action to redirect staffing prior to knowing final outcomes on fiscal year 2019 program funding,” the statement says.

It’s not uncommon for Congress to issue explanatory statements, and they aren’t legally binding, Neal said. But the statements in this case are reinforced by the appropriations bill, he said.

“What is interesting in this bill is what is on page 628,” Neal said, referring to the language in Section 740.

(Updated with additional reporting throughout.)

To contact the reporter on this story: Louis C. LaBrecque in Washington at llabrecque@bloomberglaw.com

To contact the editor responsible for this story: Peggy Aulino at maulino@bloomberglaw.com

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