Jurisprudence

Trump Is Already Trying to Get Around CARES Act Oversight

How we can stop him.

Mnuchin folding his arms and looking obsequious as Trump stands at the podium.
Secretary of the Treasury Steve Mnuchin listens to President Donald Trump speak during the daily briefing on the novel coronavirus at the White House on Monday. Mandel Ngan/Getty Images

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As Congress negotiates additional measures to respond to the COVID-19 crisis, it is essential that we prioritize pumping money into the economy, both to mitigate the devastating fallout of the crisis on Americans’ livelihoods and to pay for the essential services needed to combat the disease.

But there must also be oversight. Congress is writing checks for good reason, but they must not be blank checks. Rather, we need to see how the Trump administration is spending taxpayer money, to prevent waste, corruption, and favoritism.

In the CARES Act, passed on March 27, Congress not only authorized emergency spending of approximately $2 trillion, it also inserted a number of accountability mechanisms. Most centrally, it created both a special inspector general for pandemic recovery and a Pandemic Relief Accountability Committee, both of which are charged with detecting and preventing fraud, waste, abuse, and mismanagement of the money appropriated by Congress to respond to the COVID-19 crisis. The committee is made up of inspectors general—independent watchdogs—from different departments within the federal government. Importantly, both the committee and the special inspector general are required to make reports to Congress, as well as to the president and the secretary of the treasury.

Even as President Donald Trump was signing the CARES Act into law, though, he was already undermining these important oversight bodies. His signing statement for the bill declared that the provisions requiring consultation with and reporting to Congress were unconstitutional and that he would not comply. And then on April 8—only days after he had fired the intelligence community inspector general—Trump fired the acting inspector general for the Defense Department, who had been set to become the chairman of the Pandemic Response Accountability Committee.

These actions are of a piece with this administration’s attitude toward congressional oversight more generally: an unprecedented and unacceptable attitude of contempt, stonewalling, and outright refusal to recognize Congress’ vital constitutional role.

The stakes for our country are simply too high to allow this president’s response to the COVID-19 crisis to proceed without oversight. And we can fix this, which is why one of us is working with Sen. Elizabeth Warren on a comprehensive proposal in the Senate to do just that.

The next COVID-19 bill must protect the independence of inspectors general by ensuring that they can only be fired for good cause, a legal standard that currently applies to numerous other government officials, ranging from civil servants to the leaders of independent agencies. Moreover, this protection should apply to acting inspectors general, as well as to Senate-confirmed ones, to prevent presidential end-runs.

The bill must also require the secretary of the treasury, the special inspector general for pandemic recovery, and the chairman and executive director of PRAC to send Congress weekly reports listing instances where the watchdogs have been denied information by some part of the executive branch. Each signatory should have to certify, under penalty of perjury, that the list is true and complete. If the watchdogs are denied the information they need to do their jobs, Congress should know the reason why.

What’s to prevent the president from trying another end-run around this proposal, as he did following the signing of the first CARES Act? To ensure participation, there should be a stronger enforcement mechanism this time around. If the letter is not filed, then it should trigger a rider prohibiting the payment of the salaries of any political appointee in the Treasury Department, including the secretary, until the letter is submitted.

And perhaps most importantly, the provision should have what lawyers call a “nonseverability clause”—essentially, an all-or-nothing proposition. A nonseverability clause says that, if a decision-maker (here, the president) deems one statutory provision unconstitutional and therefore void, certain other provisions must fall as well. Here, the clause should make clear that, if the administration declares that it will not comply with the provisions requiring reporting to Congress or with the rider denying political appointees’ salaries in the case of noncompliance, then provisions giving the treasury secretary discretion to decide how certain funds will be spent must also fall away.

The president is not above the law, and congressional oversight is one of the key mechanisms for keeping him accountable. Congress has the tools to beef up that oversight, and it should not let another important bill go by without doing so.

In short: no oversight, no slush fund.