OMB Issues Statement of Administration Policy on Appropriations Bill for FY 2021 (Part 2 of 2)

WASHINGTON, Aug. 1 -- The White House Office of Management and Budget issued the following statement of administration policy on the Defense, Commerce, Justice, Science, Energy and Water Development, Financial Services and General Government, Homeland Security, Labor, Health and Human Services, Education, Transportation, Housing, and Urban Development Appropriations Act (H.R. 7617):

(Continued from Part 1 of 2)

Department of Education

Elementary and Secondary Education for the Disadvantaged (ESED) Block Grant Proposal. The Administration is disappointed that the bill fails to provide funding for the ESED block grant, which would consolidate nearly all currently funded grant programs authorized by the Elementary and Secondary Education Act, empowering State and local education leaders to determine how to use Federal resources most efficiently.

Career and Technical Education. The bill provides $1.3 billion for Career and Technical Education (CTE), which is $745 million below the FY 2021 Budget Request. The requested increase is necessary to support access to high-quality CTE in all of the Nation's high schools.

Student Aid Administration. The bill provides $1.8 billion for Student Aid Administration, $114 million below the FY 2021 Budget Request. The requested increase is needed to effectively service Federal student loans, improve cybersecurity to protect the data of 40 million Americans, and implement Federal Student Aid's Next Generation Processing and Servicing Environment.

Other Independent Agencies

Corporation for National and Community Service (CNCS). The $1.2 billion in funding provided by the bill for CNCS, which the FY 2021 Budget Request proposes to eliminate, is unnecessary and wasteful. More than 60 million Americans perform volunteer service in their communities each year absent Federal subsidies. Funding paid volunteerism and subsidizing the operation of nonprofit organizations is outside the proper role of the Federal Government. To the extent these activities have value, they should be supported by the nonprofit and private sectors, and not with Federal subsidies provided through the complex Federal grant structure run by CNCS.

Corporation for Public Broadcasting (CPB). The Administration proposes to eliminate Federal funding for CPB in the FY 2021 Budget Request and opposes the $515 million funding level for FY 2023 provided for CPB through the two-year advance appropriation. CPB grants represent a small share of the total funding for the Public Broadcasting Service and National Public Radio, and the Administration believes private donations will be sufficient to fund these operations.

Division F-- Transportation, Housing and Urban Development, and Related Agencies Appropriations Act, 2021

Department of Transportation (DOT)

DOT Topline Funding. The Administration supports additional investment in transportation infrastructure that is effective and well-targeted. It appreciates the Committee's support for certain requests, such as the $11 billion provided for Federal Aviation Administration operations, including associated increases for aviation safety, and $1 billion for the BUILD competitive grant program. The Administration, however, opposes the inclusion of new and excessive parameters and timelines placed on this and several other grant programs. Further, the Administration believes the overall funding level for DOT is excessive, and even at a more appropriate level, and it believes that resources could be better allocated to more effective programs even with a lower overall level of funding. For example, the bill should support the FY 2021 Budget Request to provide $1 billion in discretionary budget authority to the Infrastructure For Rebuilding America (INFRA) competitive grant program, which has a proven track record of supporting nationally-and regionally-significant freight and highway congestion relief projects.

Highway Trust Fund (HTF) Program Funding Levels. The Administration opposes the amount of obligation limitations provided for highway and transit programs financed out of the HTF, which mirror the Contract Authority levels provided in the House's recently passed H.R. 2, for which the Administration has issued a statement in opposition. The authorizations in H.R. 2 are unsustainable given that the HTF cannot even support current baseline spending.

DOT "Emergency" Spending. The Administration opposes the bill's inclusion of $26 billion in emergency spending for several DOT infrastructure programs. This spending appears to be classified as emergency solely to enable the bill to reach the unrealistic budget authority authorization levels in the House's Moving Forward Act, while evading discretionary spending caps. The Administration supports additional investment in infrastructure that is reasonable and well-targeted, but opposes the use of budget gimmicks to achieve this goal.

Mask Mandate. The Administration objects to language in the bill that requires passengers and transportation workers to wear masks on commercial airplanes, Amtrak trains, and public transit systems. This requirement is overly restrictive, and such decisions should be left to States, local governments, transportation systems, and public health leaders working together to reduce the public health risk and restore passenger confidence in these transportation systems.

Amtrak. The Administration is disappointed that the bill continues the status quo of providing more than $2 billion for all Amtrak operations, including its highly inefficient long-distance trains. The Administration believes that there is great potential to reform and improve Amtrak service across the United States. The FY 2021 Budget Request would provide, through National Network Transformation Grants, the opportunity to undertake a multi-year process to restructure the network, which has not changed significantly in more than 40 years.

Essential Air Service (EAS). The Administration is disappointed that the bill did not include the FY 2021 Budget proposals to reform the EAS program at DOT. The Administration has proposed reforms to EAS for several years that build upon existing eligibility requirements and would help control costs while ensuring that truly remote communities receive air service.

Position, Navigation, and Timing (PNT) Back-Up Technologies. The Administration opposes the bill's inclusion of $5 million within the Research and Technology account to fund DOT-recommended PNT back-up technologies. Global Positioning System (GPS) resilience and back-up requirements differ greatly by infrastructure sector, and there is already a strong private sector market of multiple and varied PNT back-up solutions to address the need. Consistent with Executive Order 13905 entitled "Strengthening National Resilience Through Responsible Use of Positioning, Navigation, and Timing Services," rather than subsidize back-up technologies, the Administration believes the appropriate role for the Federal Government is to encourage adoption of existing private sector back-up solutions that best fit the particular infrastructure sector.

Cable Security Fleet Program. The Administration opposes the bill's inclusion of $10 million to fund retainer payments to corporate owners of United States flagged cable repair ships. There is no discernable justification for this program, as there is a robust global network of private cable repair ships available to meet commercial needs, and similarly, the DOD has no cable repair readiness gap.

California High Speed Rail. The Administration objects to section 193 of the bill that would prohibit DOT from using funds de-obligated from California's High-Speed Rail project from being used for any other purpose until any litigation is resolved. California's ill-fated attempt to construct a high-speed rail line has been criticized by its own Governor for cost overruns and is a case study in governmental dysfunction.

Department of Housing and Urban Development (HUD)

Rental Assistance Programs. The Administration is disappointed that the bill provides $47.9 billion, or $6.4 billion above the FY 2021 Budget Request, for rental assistance programs. The bill continues to reflect the status quo and does not include the legislative reforms proposed in the FY 2021 Budget Request for Housing Choice Vouchers, Project-Based Rental Assistance, Public Housing, and Housing for the Elderly and Persons with Disabilities. The Administration's proposed reforms include uniform work requirements and offers public housing authorities, property owners, and HUD-assisted families a simpler and more transparent set of rent structures that would reduce administrative burden, incentivize work, and place these programs on a more fiscally sustainable path.

Homeless Assistance. The Administration strongly objects to language in title II of the bill, under the heading Homeless Assistance Grants that would continue to limit HUD's ability to modify its Homeless Assistance Program's Notice of Funding Availability for the Continuum of Care. The language enshrines a rigid approach that prohibits updates to out-of-date funding criteria intended to achieve a more balanced program while maintaining historic paradigms of housing assistance. Over the past year, HUD has worked to make meaningful changes to the funding notice to promote self-sufficiency, so that homeless individuals can quickly get off the streets and on their feet. While the Administration appreciates the bill's support for the proposed initiative to reduce unsheltered homelessness, it strongly objects to language that would constrain innovative policy approaches.

Proposed Grant Eliminations. The Administration opposes funding for the Community Development Block Grant (CDBG) and HOME Investment Partnerships programs, both of which the Administration proposed to eliminate in the FY 2021 Budget Request. The CDBG program is not well-targeted to the most distressed areas and has not demonstrated a measurable impact on communities. The Administration also believes that State and local governments are better positioned than the HOME program to comprehensively address the unique market challenges, local policies, and impediments that lead to housing affordability problems. In addition, the Administration opposes the $250 million for the Choice Neighborhoods program rather than eliminating it as proposed in the FY 2021 Budget Request. The Administration believes that State and local governments should play a greater role in addressing community revitalization needs.

HUD "Emergency" Spending. The Administration strongly opposes the $49 billion in unrequested emergency spending across multiple HUD programs for additional infrastructure investments, including, for example, $24.3 billion for the Public Housing Capital Fund, $17.5 billion for HOME Investment Partnerships program, and $4 billion for CDBG. This additional funding is excessive, unnecessary, and would violate the terms of the Bipartisan Budget Agreement of 2019.

HUD Rulemaking Prohibitions. The Administration strongly objects to section 237 of the bill, which would prevent HUD from proceeding with the proposed rule that prohibits persons other than United States citizens and other eligible noncitizens benefitting from HUD rental assistance. Section 235 of the bill would also prevent HUD from proceeding with the proposed rule to allow grantees participating in programs that permit single-sex facilities to have greater flexibility in establishing their own policies, consistent with State and local laws. In addition, section 236 of the bill would codify an outdated guidance notice on this subject in statute. The Administration opposes such provisions because they would impede the Administration's rulemaking process and authority as well as damage efforts to protect vulnerable women and girls.

HUD CDBG-Disaster Recovery (CDBG-DR). The Administration strongly opposes language in title II of the bill, under the heading of "Community Development Fund" that would exempt from apportionment CDBG-DR and CDBG-Mitigation funds appropriated under Public Law 115-123. This language impinges upon executive branch functions and authorities. In addition, the Administration has concerns about section 239 that would allow 2011-2013 CDBG-DR grantees to avoid recouping and repaying duplications of benefits in cases of fraud, bankruptcy, foreclosure, or death of beneficiaries. This section

would contribute to a weakening of the Stafford Act's prohibition on duplication of benefits.

Constitutional Concerns

Several provisions of the bill raise constitutional concerns. The Administration objects to provisions in division A of the bill, such as sections 8067, 8074, 8078, 9012, and 9029, that would limit the President's constitutional authority as Commander in Chief to direct the use of military personnel and materiel. The Administration also objects to provisions that would require advance notice to Congress before certain military operations and objectives, preventing the President from exercising his constitutional authority as Commander in Chief to take immediate military action when necessary to ensure the security of the United States.

The Administration objects to sections 509 and 516 of division B, which would prevent the negotiation of certain terms in international agreements, as well as section 526, which would prevent certain forms of bilateral cooperation between executive branch agencies and China and Chinese-owned companies. These provisions would contravene the President's constitutional authority to conduct diplomacy. Likewise, section 523 of division B, section 628(b) of division D, and section 414 of division F would limit the number of representatives the President may send to an international conference absent advance notification to Congress. In some applications, the requirement of advance notification would infringe on the President's constitutional authority to conduct diplomacy.

The Administration objects to provisos in division D that would bar the President and OMB from expending funds on supervision of agency activities, including orders, regulations, testimony, work plans, and investigations. These provisions would interfere with the President's supervision of the executive branch, a necessary feature of his constitutional duty to "take Care that the Laws be faithfully executed." U.S. Const. art. II, Sec. 3.

The Administration objects to section 713 of division D, which would allow an employee of the executive branch to disclose information to Congress, including privileged information, without disciplinary consequence. The Administration also objects to section 8009 of division A, which would prohibit initiating a special access program without advance notice to Congress, and section 625 of division D, which would require an agency to disclose, without discretion, certain classified and other privileged information to an Inspector General. These provisions would interfere with the President's supervision of the executive branch and with the President's Article II authority to control the dissemination of privileged information.

The Administration objects to sections 8013 and 8138 of division A and section 309 of division C, which would bar the use of appropriated funds to generate certain legislative recommendations. These provisions would contravene the President's constitutional authority to recommend to Congress "such Measures as he shall judge necessary and expedient." U.S. Const. art. II, Sec. 3. Other provisions would require the submission a legislative recommendation in violation of the Recommendations Clause.

The Administration objects to a number of provisions throughout the bill that would condition the authority of the President to take certain actions, such as obligating or transferring funds, on prior approval of or consultation with committees of Congress. These provisions would contravene the constitutional separation of powers between the executive branch and Congress by giving legal effect to congressional action outside the Article I, Section 7 requirements of bicameralism and presentment. The same is true for section 3 of the bill, which purports to declare that committee reports on the appropriations contained in each division of the bill "shall apply for purposes of determining the allocation of funds provided by, and the implementation of," that division.

The Administration objects to section 232 of division E, which would authorize members of Congress to inspect facilities used for custody of unaccompanied minor children at any time without notice. This provision does not make any allowance for maintaining order or the responsibility for the efficient execution of the laws, and would contravene the constitutionally mandated accommodation process by which the executive responds to congressional requests for access or information.

For related reasons, the Administration objects to sections 748 and 749 of division D on separation of powers grounds. These provisions would require executive agencies to produce "information, documentation, and views" on demand by the Comptroller General for use in investigations, and would authorize the Comptroller General to sue an official of the executive branch whom he deems not to have complied with such a demand. They would also require an agency to provide a report to the President and Congress in response to a Comptroller General determination that an executive branch official has violated the law. Because Congress may not empower a congressional agent to direct executive action, we would understand these provisions to require only the production of information already available to the agencies and not to bypass the constitutionally required accommodation process for the production of information protected by executive privilege. Also, because the opinions of the Comptroller General, an agent of Congress, cannot bind the executive branch, Congress may not authorize the Comptroller General to direct the executive branch or to seek a court order compelling the executive branch to respond to a Comptroller General directive.

The Administration objects to section 248 of division E, which would disable agencies administering grant programs from making exceptions to non-discrimination rules when required by the First Amendment. The restrictions mandated by this section would violate the First Amendment in certain applications, such as when the grant recipient is a religious organization whose employment decisions are protected by the ministerial exception, or when the funding program is not designed to create a limited public forum for individual expression.

Department of Homeland Security Appropriations Act, 2021

While the Administration understands that the Department of Homeland Security Appropriations Act, 2021 will not be considered in the above package of legislation pursuant to the manager's amendment considered as adopted, it would like to take the opportunity to share its views on the version of the bill that was previously slated for consideration.

Department of Homeland Security (DHS)

Border Wall. The Administration strongly opposes the lack of funding, as well as language included in sections 104 and 209 through 212 of the bill, that would prevent DHS from securing the Southern Border by using physical barriers, where appropriate. The bill provides no funding for border wall construction, prevents the Administration from using other available funds to construct border barriers, and prohibits Customs and Border Protection (CBP) from constructing border wall in locations prioritized by the Border Patrol. It would also unnecessarily delay CBP's use of previously appropriated funds for border wall construction. Finally, the bill rescinds $1.4 billion that was previously appropriated to CBP for border wall construction, and imposes new location and consultation restrictions that could disrupt projects that are already underway.

Immigration and Customs Enforcement (ICE) Detention Beds. The Administration strongly opposes the level provided in the bill for ICE detention beds. The bill would reduce detention capacity by half of its currently funded level and completely eliminate family detention, making it nearly impossible for ICE to conduct its statutory mission to enforce the Nation's immigration laws and keep the Nation safe. Beyond this dangerously low detention capacity, the bill would further reduce ICE's capacity by 10,000 beds as long as the Centers for Disease Control and Prevention's order protecting Americans from COVID-19 is in effect.

Restrictions on Border Security and Immigration Enforcement Activities. The Administration strongly opposes language in section 533 that would prohibit the use of Federal funds to execute several of the Administration's immigration and border security priorities. These programs and policies are an integral part of the Administration's efforts to prevent the return of a security and humanitarian crisis on the Southern Border.

Limiting ICE Flexibility. The Administration opposes language in sections 237, 238, and 239 that seeks to limit ICE's flexibility to revise its guidance related to F and M visas, prohibit community outreach programs, and end immigration enforcement action against a class of aliens who otherwise may be amenable to removal.

Immigration Detention Limits. The Administration strongly opposes section 219 of the bill, which would limit immigration detention to 20 days for all aliens unless the Director of ICE concludes that the alien poses a public safety threat or is a flight risk. This provision undermines statutory and mission-critical requirements to detain aliens pending removal, criminal aliens, and those with final deportation orders. This provision seeks to formalize catch-and-release and would result in more criminal aliens and aliens with final orders of removal being released into the interior of the country, which would unnecessarily force ICE to make dangerous at-large apprehensions--putting the safety of citizens, communities, and law enforcement officers at risk. In addition, section 219 would compel the release of illegal aliens into the United States prior to the conclusion of their immigration proceedings. Section 219 also includes an arbitrary 5-day limit on the detention of aliens who self-assess as transgender and requires assessments be conducted in conjunction with the Office of the Immigration Detention Ombudsman, which would place an added burden on ICE.

Immigration Enforcement Limitation. The Administration strongly opposes section 215 of the bill, which would prohibit ICE from taking any enforcement action against

individuals who provide information to the Federal Government or its contractors as part of the unaccompanied alien children sponsorship process. Unlike prior attempts to limit immigration enforcement actions, section 215 fails to provide an exception for individuals with criminal histories, which undermine the imperative to protect the welfare of vulnerable children. It is vital to ensure that people convicted of felony child and sexual abuse or those associated with prostitution are barred from the unaccompanied children sponsorship process and are not provided immunity or shielded from enforcement action. This provision could also be exploited by criminal aliens to remain in the United States illegally.

Third Country Asylum. The Administration opposes section 106 of the bill, which would prohibit the use of Federal funds to return aliens to a third country to claim asylum under an Asylum Cooperation Agreement (ACA) until the Secretary of DHS certifies to Congress that the third country has the capacity to assess and resettle claims. Section 208(a)(2)(A) of the Immigration and Nationality Act (8 U.S.C. 1158) provides the authority to remove an alien to a third country where the alien can request asylum or other protection, and DHS recently entered into ACAs with Guatemala, Honduras, and El Salvador. Section 106 would hamper successful international cooperation on migration issues and delay the Federal Government's use of a legal means of countering illegal immigration.

Homeland Security Investigations (HSI) Personnel Restriction. The Administration opposes section 220 of the bill, which would prohibit the use of ICE/HSI personnel and resources for immigration enforcement unless there is probable cause to believe the target of such action committed a criminal offense.

Law Enforcement Officers. The Administration is concerned that the bill fails to provide the funding needed to hire additional Border Patrol agents or ICE law enforcement officers required to secure the United States border, maintain community safety, and enforce the Nation's immigration laws. These investments are critical at a time when CBP and ICE are focused on preventing the spread of COVID-19 across United States borders.

DHS Reprogramming Limitations. The Administration strongly opposes section 503 of the bill, which would all but eliminate DHS's ability to manage its own resources. Section 503 of the bill would eliminate a critical mechanism for DHS to reprogram funds above certain minimum thresholds, or to transfer funds between departmental accounts. The section also subjects funding derived from fee collections to the reprogramming limitations of this section, restricting amounts that are otherwise authorized and available to DHS. Section 503 would severely hamper DHS's flexibility to address unforeseen and emerging requirements, and would instead require DHS to seek an act of Congress near the end of the fiscal year to continue operating.

Federal Emergency Management Agency (FEMA) Grant Funding. The Administration opposes the $3.4 billion in excessive grant funding provided in the bill for the FEMA Federal Assistance account, which is $1.1 billion more than the level in the FY 2021 Budget Request. Not only does the bill waive non-Federal matches for fire grants, it also provides increases to programs that are not evidence-or performance-based and fails to provide funding for an innovative competitive all-hazards grant program that could better measure risk reduction through evaluation. In addition, the bill provides funding for an

unauthorized, unnecessary, and duplicative grant program to provide case management services to individuals released from detention--a mission area completely outside of FEMA's expertise.

Transportation Security Administration Funding. The Administration opposes excessive transportation security funding initiatives eliminated in the FY 2021 Budget Request that are either duplicative, not a Federal responsibility, or have not proven to be successful.

Office of the Immigration Detention Ombudsman. The Administration opposes the $20 million in funding provided by the bill for DHS to establish an Office of the Immigration Detention Ombudsman. Oversight that would be conducted by the Ombudsman is unnecessarily duplicative of monitoring by DHS, ICE, and the DHS Office of Inspector General, and monitoring through contracts to provide routine inspections of detention facilities.

Cybersecurity Advisory Council. While the Administration appreciates the spirit of establishing a new Cybersecurity Advisory Committee at the Cybersecurity and Infrastructure Security Agency, it strongly opposes language in section 314 that would provide access to members of the public and private sector of executive branch deliberative and pre-decisional information. Providing access to this type of information would severely inhibit the free flow and exchange of information between members of the executive branch.

Plum Island Closure and Sale. The Administration opposes section 410 of the bill. Congress provided GSA the authority to dispose of the Plum Island property on an expedited basis and is now reversing that direction, which would result in higher taxpayer costs both through forcing the piecemeal sale of federally-owned assets and requiring DHS to continue to maintain facilities far longer, and at significantly greater cost, than currently planned.

Constitutional Concerns

The Administration objects to section 532 of the committee reported bill, which would require the submission a legislative recommendation in violation of the Recommendations Clause.

The Administration objects to section 239(a) of the committee reported bill, which would authorize a legislative veto, in violation of INS v. Chadha, 462 U.S. 919 (1983), by requiring the Secretary of Homeland Security immediately to stay the removal of an alien "[u]pon receipt of a written request by a relevant committee [of Congress] for an investigative report relating to an alien beneficiary of a private bill that has been introduced in the Senate or the House of Representatives."

The Administration objects to section 528 of the committee reported bill, which would authorize members of Congress or their staff to inspect facilities used to detain aliens, with little or no notice to DHS. This provision does not make any allowance for maintaining order, preventing violence, or the responsibility for the efficient execution of the laws, and would contravene the constitutionally mandated accommodation process by which the executive responds to congressional requests for access or information.

The Administration looks forward to working with Congress as the FY 2021 appropriations process moves forward.