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Executive’s Power over Budget Items

There are different takes on the possible conflict with Art. VI, Sec. 25 (5) of the Constitution, which states in brief: “No law shall be passed authorizing any transfer of appropriations; however, the President . . . may, by law, be authorized to augment any item in the general appropriations for their respective offices from savings in other items of their respective appropriations.”

One view posits that Sec. 4 of the Act does not violate the Constitution: “In giving the President the power to ‘reprogram, reallocate, and realign’ savings from items in the Executive Department, the purpose seems to me to give to him the power to APPROPRIATE public funds to meet the emergency caused by the outbreak of coronavirus. The funds will be drawn from savings from items in the Executive Department.”

The other view proceeds thus:

“The President has been given the power to ‘reprogram, reallocate, and realign from savings on other items of appropriations in the FY 2020 GAA in the Executive Department . . .’ in clear violation of Article VI, Section 23. Savings are meant to augment appropriations, nothing more. I do not think that emergency powers can be used to circumvent provisions of the Constitution. If we sanction this provision (in the Act), then emergency powers can be used to amend any provision of the Constitution.”

Another take focuses on the statutory standards (not) given by the Act: “In general, the Bayanihan Act does not appear to have sufficient guidance for the President in the exercise of the authority granted under §§4(v-y)(dd)(ee). The creation of the oversight committee and rendition of reports are insufficient safeguards considering that the exercise by the committee of the Legislature’s oversight function of supervision is quite limited. Short of revoking the authority granted by subsequent law or withdrawing the declaration by joint resolution, Congress cannot review, modify or rescind any action taken by the President in the exercise of these powers.”

Still, another view raises the point that Art. VI, Sec. 23 (2) provides the Constitutional conditions under which Congress may authorize the President and other constitutional heads to transfer appropriations from one item to another in their respective Departments as an exception to the rule that Congress cannot authorize anyone to transfer appropriations it has made. So, while Congress cannot authorize the President to reprogram, reallocate or realign appropriations made by it, Congress itself can do that because the power to appropriate public funds belongs to it. It is this power of Congress that is expressly given to the President in case of war or other national emergency: “When a nation is at war or is a great danger, many things that can be done or said may be such a hindrance to its effort to contain the enemy or meet the danger, that the citizen must endure them so long as the need for them exists.”