Whats the gig with the USAID lawsuit?
Breakdown of lawsuit concerning the control over the agency.
I often seek to place myself squarely in the center of a debate, a mostly selfish endeavor, but for me it is simply an excuse to dive into any given topic. So perhaps instead of doing that and subjecting my friends into unwanted topics. My friend suggested I find an more humane way to do this. I owe much to my friends so I am going to safely debate this topic in the form of an article.
Here it goes.
Currently there is a lawsuit over the Trump regimes smash and grab executive order sessions. But the question arises over over the ability to abolish or restructure USAID. A link to this pleading can be found here (https://www.citizen.org/wp-content/uploads/01-1.pdf). The summarized title could be,
”AMERICAN FOREIGN SERVICE ASSOCIATION, AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, _ Plaintiffs, v. DONALD TRUMP, President of the United States of America, UNITED STATES DEPARTMENT OF STATE”
Until this debate, I assumed the executive branch enjoyed complete control over all federal agencies. But it turns out nothing is very white and black in politics. So lets try and answer this question. Which, if we are being honest, should lead to increasing our understanding on an issue.
So, where does an agencies get their authority, and who is responsible for abolishing or restructure them? Well, there may be only a handful of federal agencies that remain completely under the purview of the Executive Branch. AI claims, that EPA and FEMA are the two best-known major agencies created by executive reorganization rather than direct statutory creation. I have not verified this fact for myself, yet. (I welcome anyone who feels compelled to tackle this question)
Interestingly, USAID was created under both the authority granted by Congress in the 1961 Act and President Kennedy’s executive order.
Executive Order 10973 on November 3, 1961 (https://www.presidency.ucsb.edu/documents/executive-order-10973-administration-foreign-assistance-and-related-functions)
Foreign Assistance Act of 1961 on Dec (https://www.govinfo.gov/content/pkg/COMPS-1071/pdf/COMPS-1071.pdf) Oddly enough, just amended Dec 23, 2024.
[As Amended Through P.L. 118–159, Enacted December 23, 2024]
In 1998 under H.R. 1757, Congress restructured this agency and at the same time have provided specific protections to this agency. (https://www.congress.gov/105/bills/hr1757/BILLS-105hr1757enr.pdf)
This is where we find the rules of this agency. Originally, Congress had delegated a limited restructuring authority to the Executive and State Dept, but they would later change this. It is worth noting some of the language.
page 32-33 is a name change from “‘United States International Development Cooperation Agency” to “Agency for International Development”
page 34-40, some parts of the Agency are transferred under the Dept of State.
”(b) FUNCTIONS TO BE TRANSFERRED.—The reorganization of the Agency for International Development shall provide, at a minimum, for the transfer to and consolidation with the Department of State of the following functions of AID: (1) The Press office. (2) Certain administrative functions.
They then place the agency in control of the Dept. of State and President.
(a) AUTHORITY OF THE SECRETARY OF STATE.— (1) IN GENERAL.—Under the direction of the President, the Secretary of State shall coordinate all United States assistance in accordance with this section, except as provided in paragraphs (2) and (3). (2) EXPORT PROMOTION ACTIVITIES.. H. R. 1757—35 (3) INTERNATIONAL ECONOMIC ACTIVITIES.4) AUTHORITIES AND POWERS OF THE SECRETARY OF STATE.
Here it appears is the crux of the issue at hand!
”SEC. 611. REORGANIZATION AUTHORITY. (a) IN GENERAL.—The Secretary is authorized, subject to the requirements of this division, to allocate or reallocate any function transferred to the Department under any title of this division, and to establish, consolidate, alter, or discontinue such organizational entities within the Department as may be necessary or appropriate to carry out any reorganization under this division, but this subsection does not authorize the Secretary to modify the terms of any statute that establishes or defines the functions of any bureau, office, or officer of the Department. (b) REQUIREMENTS AND LIMITATIONS ON REORGANIZATION PLAN.—The reorganization plan transmitted under section 601 may not have the effect of— (1) creating a new executive department; (2) continuing a function beyond the period authorized by law for its exercise or beyond the time when it would have terminated if the reorganization had not been made; (3) authorizing a Federal agency to exercise a function which is not authorized by law at the time the plan is transmitted to Congress; (4) creating a new Federal agency which is not a component or part of an existing executive department or independent agency; or (5) increasing the term of an office beyond that provided by law for the office.”
If you would stop here you may think this case is loosing. Not just yet.
Even though section 611 granted some powers to the executive it does not appear to the State Department to absorb or abolish the USAID. This is an interesting case for sure.
The lawsuit goes on to allege, that in 2024 the consolidated Appropriations Act limited this executive ability to restructure the agency. (https://www.congress.gov/118/plaws/publ47/PLAW-118publ47.pdf) This begins on page 281.
Side note, Page 291 is problematic in my view, it looks like Congress allocated $6 billion for USAID to train foreign military via a “FOREIGN MILITARY FINANCING PROGRAM”. So there are some real valid problems with USAID, but given the following restrictions, this is not the way. We could tell Trump to phone his congress person, as the typical response would be to you or I.
But here the rub. On page 385, section 7063 states that funds used may not be used to implement a reorganization, redesign, or other plan described in subsection (b)
”(b) DESCRIPTION OF ACTIVITIES.—Pursuant to subsection (a), a reorganization, redesign, or other plan shall include any action to— (1) expand, eliminate, consolidate, or downsize covered departments, agencies, or organizations, including bureaus and offices within or between such departments, agencies, or organizations, including the transfer to other agencies of the authorities and responsibilities of such bureaus and offices; (2) expand, eliminate, consolidate, or downsize the United States official presence overseas, including at bilateral, regional, and multilateral diplomatic facilities and other platforms; or (3) expand or reduce the size of the permanent Civil Service, Foreign Service, eligible family member, and locally employed staff workforce of the Department of State and USAID from the staffing levels previously justified to the Committees on Appropriations for fiscal year 2024.”
So there is a case to be made here, did the President change the way the funds were being allocated under the lastest budget bill? If the funds haven’t been used for any items in section (b) then there’s the loop hole. A real question of legality exits and hopefully the courts can sift through this better than I can.
So, while it seems clear to me that the Executive can oversee the agency and appoint heads of agencies, sometimes with Congressional approval. This means the agency head can control the operations of that agency, it does not appear that the Executive can simply roll this group into the State Department.
If widespread changes were to be made by the Executive, Congress will have to pass a New Reorganization Act, specifically granting that power. Barring that, this move appears to be contrary to the law.
Something not talked about.
If the entire reason for these rapid sweeping actions was to reduce government fraud. Then how about we discuss some ideas that could prevent such a thing in the future. We could create an open-source accountability system, specially for government. All things government, where the public can easily review the funds allocated and distributed on an a public ledger?
This would instantly create a hive mind public oversight committee, which could churn out the data and information for a far superior accountability. We have a united interest to root out fraud and corruption so, we the people can do a better job at investigating than the watchers themselves. This is also 10th Amendment concepts, ultimately the people retain the right to audit the government, this isn’t specifically enumerated, or is it?