The Sequester Revelation: Obama Has The Legal Power To Avoid Spending-Cut Damage

From the WSJ:

And when the Republicans opened the seventh seal of the sequester, there was a great earthquake; and the sun became black and the stars fell unto the Earth; and our nation's ability to forecast severe weather, such as drought events, hurricanes and tornadoes, was seriously undermined. Lo, and the children were not vaccinated, and all the beasts starved in the zoos, and the planes were grounded.

 

Or so President Obama and his Cabinet prophets have been preaching ahead of the automatic budget cuts due to begin Friday. The bit about the weather is a real quote from the White House budget director.

But if any of these cataclysms do come to pass, then they will be mostly Mr. Obama's own creation. The truth is that the sequester already gives the White House the legal flexibility to avoid doom, if a 5% cut to programs that have increased more than 17% on average over the Obama Presidency counts as doom.

According to Mr. Obama and his budget office, the sequester cuts are indiscriminate and spell out specific percentages that will be subtracted from federal "projects, programs and activities," or PPAs. Except for the exemptions in the 2011 budget deal, the White House says it must now cut across the board regardless of how important a given PPA is. Food inspectors, say, will be treated the same as subsidies for millionaire farmers.

Not so fast. Programs, projects and activities are a technical category of the federal budget, but the sequester actually occurs at the roughly 1,200 broader units known as budget accounts. Some accounts are small, but others contain hundreds of PPAs and the larger accounts run to billions of dollars. For the Pentagon in particular, the distinction between PPAs and accounts is huge. This means in most cases the President has the room to protect his "investments" while managing the fiscal transition over time.

Congress might have intended for the sequester to apply to PPAs, but they also wrote a sloppy law at the 11th hour. The Budget Control Act of 2011 disinterred the lapsed sequester rules of the Gramm-Rudman Deficit Control Act of 1985, though without anyone looking at the details.

Gramm-Rudman said the sequester applies to accounts, not PPAs, under a temporary "part-year" budget. As it happens the government is operating under just such a continuing resolution now, not a normal appropriations bill. If Congress returned to regular order in 2014 or later, the sequester would indeed trickle down to PPAs.

The White House has even more discretion than this. When Gramm-Rudman led to a 4.3% sequester in 1986, Congress passed a special bill that created the category of PPAs and spent 1,119 pages defining what they were for 1986. Congress has never done anything of the sort since, and thus as the government has grown PPA definitions now vary among Cabinet departments and sometimes even account to account in the same department.

Lacking legislation, the White House assigns these amorphous units in its annual budget. Even if the lawyers insisted the sequester must apply to "PPAs" per se, the budgeteers could formally construe PPAs in ways that preserve a work-around.

This White House has never been fussy when a statutory text or even the Constitution interferes with its political ambitions. (See ObamaCare, immigration executive orders, recess appointments and much else.) Could it be that Mr. Obama is exaggerating the legal stringency of the sequester in a gambit to force Congress to shut it off?

In any case, Republicans in Congress are prepared to give Mr. Obama still more spending flexibility than he already has to mitigate any damage, real or imagined. One option is to lock in spending at post-sequester levels and grant department heads so-called transfer authority to shift cash between accounts, after consultation with the committees on the Hill.

Mr. Obama ought to love that, since it is precisely the administrative state he says he wants—the rule of technocrats who evaluate budget priorities without political interference. But liberals are now howling about more liberal executive power because this plan would also very modestly reduce the size of government.

It would also negate Mr. Obama's days-of-wrath sequester campaign. To wit:

If air traffic control and airport security really are the models of government efficiency that anyone who has ever traveled knows they are not, perhaps Homeland Security could begin by targeting some of the programs identified by Oklahoma Republican Tom Coburn this week. These include necessities such as grants for a security conference in San Diego that featured "zombie apocalypse training" or funds for towns like Keene, New Hampshire (pop. 23,000) to purchase armored tank-like vehicles called Bearcats. Seriously.

Before furloughing park rangers, maybe start with the 10% of the 75,000 Department of the Interior employees who are conserving the wilderness of Washington, D.C. Before slashing cancer research, stop funding the $130-million-a-year National Center for Complementary and Alternative Medicine that studies herbs and yoga. Cut after-school funding only after consolidating the 105 federal programs meant to encourage kids to take math and science classes.

Neither the legal details of the sequester nor the practical work of reforming government are as interesting to the media as Mr. Obama's invocations of plagues and pestilence. The real revelation is that if the world does end, it will be Mr. Obama's choice.

SoRo:  Of course, Mr Obama's real goal isn't to reach a deal or to avoid catastrophe.  His real intention is to inflict as much pain on the American people and make sure that they blame the Republicans.  He wants no opposition.  He wants to be seen as the man, who is without blame, who has the only "common sensical" plan, who is a healer and uniter, who is "fighting for the little guy against the wealthy, entrenched, special interests," and who is the last, great hope for all mankind.  

He thrives amidst chaos.  It was the environment in which he grew up as a child.  His idea of "normalcy" is an anathema to most of us.  He must continuously agitate for several reasons:  1) it keeps everyone else off balance; 2) it allows him to do what he could not otherwise do; 3) while people are focusing on one hand, the other hand is moving on something else; and, most injuriously, 4) it grinds and wears the people down to the point when they just throw up their hands and say, "Just do whatever you want.  We just cannot take it anymore."

Novices will say that this is "The Rules For Radicals."  Those with a more learned eye on history will recognise many traits and beliefs shared with Louis XIV, Robespierre, Cromwell, Marat, Galton, Rousseau, Nietzsche, Hegel, Sartre, Marx, Engels, Eckart, Haushofer,  Lenin,  Stalin, Mao, Hitler, Mussolini, Ho Chi Minh, Popper and many others.