Could doom his plans.
The bottom line is that the president and OMB Director Mick Mulvaney may have to violate their oaths of office by breaking federal law to do what the administration wants to do on federal spending.
On Monday, the Office of Management and Budget held a largely nonsensical conference call with reporters to announce what was already largely known: Trump is going to propose a big increase in military spending and an offsetting decrease in domestic programs.
The only two things that were relatively newsworthy about the conference call were that (1) OMB insisted the news be attributed to “an OMB official” (from the president that just last week castigated the media for using unnamed sources), and (2) the increase would be $54 billion compared to the previous estimate of $40 billion candidate Trump used during the campaign.
Trump’s unacknowledged problem is that Congress and the president don’t have the legal authority to do what he is proposing by cutting domestic spending to pay for an increase in security spending. The Budget Control Act of 2011 established annual caps for each category and prohibited offsetting increases in one by reducing spending in the other.
That is exactly what Trump is proposing to do.
The legal way for Trump to deal with this problem is to get Congress to adopt legislation that increases the security cap. But because that could…and very likely would…be filibustered by Senate Democrats, that would also be the most difficult and time consuming way to make it happen.
That leaves the White House with two law-breaking options.
The first is for the $54 billion to be appropriated using the Overseas Contingency Operations fund, which allows security spending over the cap if it’s for war activities in Iraq and Afghanistan.
It’s not at all clear, however, that any of the $54 billion would be for OCO-related activities. While that hasn’t stopped non-OCO-related spending from being appropriated that way in the past, doing it again would still be a violation of at least the spirit of the law.
In addition, while he was a member of Congress (that is, until 3 weeks ago), OMB Director Mulvaney adamantly opposed using OCO for non-OCO spending and could be against it now as well.
The second option is for Trump and Co. to leave the security cap as is, get Congress to agree to his $54 billion increase (possibly with the Senate eliminating a filibuster), trigger a sequester in that category and then order OMB not to implement it as the law requires.
Yes, that would mean that Mulvaney would be violating the Budget Control Act, but it’s not clear that anyone would have standing to sue to force its implementation.
And it’s very unlikely that breaking this law would result in anyone being impeached.