The Biden administration has put a hold on a shipment of military aid to Israel in a nakedly political attempt to win votes in key swing states. Presidents have been impeached for far less.
The Impoundment Control Act of 1974 (ICA) governs the control of funds appropriated by Congress. It was enacted to reassert Congress' power of the purse and prevent the president from simply substituting their own funding decisions for those of Congress. While it was once an obscure rule on governing spending, the masses may remember it for its brief starring role in the first impeachment of President Donald J. Trump. As the Democrat-led impeachment inquiry report explained:
President Trump ordered the suspension of $391 million in vital military assistance urgently needed by Ukraine, a strategic partner, to resist Russian aggression. Because the aid was appropriated by Congress, on a bipartisan basis, and signed into law by the president, its expenditure was required by law. Acting directly and through his subordinates within the U.S. government, the president withheld from Ukraine this military assistance without any legitimate foreign policy, national security, or anticorruption justification. The president did so despite the longstanding bipartisan support of Congress, uniform support across federal departments and agencies for the provision to Ukraine of the military assistance, and his obligations under the Impoundment Control Act.
Just switch Ukraine for Israel and Hamas for Russia, and the rest of the paragraph reads exactly the same. Except, of course, that Trump denied he had put an improper hold on the aid, and President Biden has not.
Just how bad is it for a president to withhold congressionally approved military aid to another country? And to do this to a democratic ally facing an existential war? Why, it is nothing short of an "abuse of power"—or at least that is how then-candidate for President Joe Biden described it in 2020.
Of course, the ICA does provide for some limited circumstances in which the president can try to withhold or delay the delivery of funds, but it includes very specific procedures that the administration must go through in order to notify Congress, who still have the power to approve or disapprove of the President's decision. None of those procedures were implemented here.
What does it say about a president who unilaterally decides that he does not have to follow the law, and specifically the ICA? It would mean that "We have a president who believes there is no limit to his power. We have a president who believes he can do anything and get away with it. We have a president who believes he is above the law." Or at least that is how then-candidate for Biden explained the appearance of impropriety in 2020.
Some may argue that this behavior, while wrong, could not possibly constitute the kind of high crimes and misdemeanors that might lead a president to get impeached. And yet, as the U.S. Government Accountability Office found in January 2020, this kind of unlawful decision does have very real constitutional significance. "Faithful execution of the law does not permit the president to substitute his own policy priorities for those that Congress has enacted into law. In fact, Congress was concerned about exactly these types of withholdings when it enacted and later amended the ICA... All federal officials and employees take an oath to uphold and protect the Constitution and its core tenets, including the congressional power of the purse." In fact, in its Principles of Federal Appropriations Law, Fourth Ed., Ch. 1 (2016), the GAO referred to the congressional power of the purse as "the most important single curb in the Constitution on presidential power."
Numerous lawmakers have already sent the White House correspondence demanding answers and accountability. The deadline to respond to at least some of those letters has already passed.
What then should be done to a president who acts like a king? Hard to say in these fraught times, but at least some people are of the opinion that this "will leave Congress in my view no choice but to initiate impeachment." Or at least, that is what then-candidate for Biden thought in 2020, when that was the more popular answer.
According to experts, like Colonel John Spencer, chair of urban warfare at West Point, Israel is fighting a just war, and doing so as humanely as possible. The quickest way to end the war; the fastest way to save as many lives as possible—Israeli, Palestinian, and American; and the only way to keep the world safe for democracy is to defeat Hamas. And the president knows that, even if potential voters in Michigan do not.
Making decisions against the best interests of our own national security, as well as the security of our allies, for personal political gain, is the "definition of corruption." Or at least that is what then-candidate Joe Biden said, in 2020, when it wasn't him doing it.
Dr. Mark Goldfeder, Esq. is director of the National Jewish Advocacy Center.
The views expressed in this article are the writer's own.
Uncommon Knowledge
Newsweek is committed to challenging conventional wisdom and finding connections in the search for common ground.
Newsweek is committed to challenging conventional wisdom and finding connections in the search for common ground.
