Okay, now I’ve had a few hours of shuteye and can properly address this.
The apportionment process is covered by the Anti-Deficiency Act and the Impoundment Control Act. The former has the thirty-day requirement, although I believe that was met for the first $125 million. After the Secretary of Defense certified Ukraine in May, the President needed to apportion the second $125 million and that’s where the problem comes in. It took him over 100 days where normally it only takes 30, so I’m saying that’s a deferral under the Impoundment Control Act. But the statutory procedures when deferring appropriated funds were not followed, and there lies the problem.
I’ll put details and cites in this spoiler.
[SPOILER]Of relevance is 31 U.S.C. § 1513 (b) which specifically says the President is personally responsible for making the apportionment by the later of “20 days before the beginning of the fiscal year for which the appropriation is available” or “30 days after the date of enactment of the law by which the appropriation is made available.” The President has chosen to delegate this responsibility to the Office of Management and Budget, but if they mess up, especially on his orders, it’s on him.
The point of bringing this up is that the apportionment process is a quick one. By statute it must be achievable within thirty days of the apportionment law’s passage.
In this case, the appropriation law was signed on September 28, 2018. Presumably the funds were apportioned (divided according to a plan, not necessarily expended) within the above time frame.
Now, it just so happens that the authorization law from August 13, 2018 conditioned some $125 million on the certification process. That didn’t happen until May of 2019, so presumably the initial apportionment over fiscal year 2019 only accounted for $125 million. This is supported by John Rood’s letter of certification which you can read at NPR. In that May document Mr. Rood informs Congress that the Department of Defense will start spending the other $125 million “no sooner than 15 days” later. The funds were not spent at all until September 11.
Technically September 11 is “no sooner than 15 days” after the end of May. It’s at least 103 days, which is more than 15. The problem is that a 103 day delay is most definitely a deferral of budget authority as defined by the Impoundment Control Act, 2 U.S.C. § 682 (1). That Act differentiates between two kinds of impoundment the President may effect, deferral (defined in § 682 as “withholding or delaying the […] expenditure of budget authority”) and rescission (described in § 683 as basically not spending all of the appropriated funds by the end of the fiscal year).
Rescissions require the President to ask Congress for approval, and this ask is automatically denied if Congress does not reply within 45 days (§ 683). The current case has a 103 day delay, so if it was in fact a rescission then the President still violated the law.
Deferrals also require Congressional approval although a 2012 CRS report seems to imply that the President can defer expenditure of appropriated funds for up to 45 days pending the resolution of a rescission request. Notably, § 682 says deferrals may not extend past the end of the fiscal year (that would be a rescission).
So holding funds up in the apportionment process for 103 days can’t be business as normal, which would be within thirty days at most. It can’t be a rescission because the funds were ultimately apportioned and released before the end of the fiscal year - even if it was, that is equally bad for the President. Therefore it must be a deferral, but the proper procedures were not met, and the president directed his officers to violate the law.[/SPOILER]
Certainly, if the Obama administration violated the law (and were still in office) I would support impeachment. I don’t think that’s a given, though.
The NDAA FY2016 has a provision you may have overlooked, 1250(b)(3), that conditions that lethal military aid on certification from the Secretary of Defense in coordination with the Secretary of State. It actually says the funds earmarked for lethal aid can be used for non-lethal aid if the Secretary certifies that it is not in our national security interest to provide lethal aid. PoliFact’s Russia expert cites concern about lethal aid escalating the situation as grounds for not sending it. If their reporting is accurate, I would be surprised to learn that the Obama administration repurposed those funds for non-lethal aid without sending the letter as required by statute and ostensibly justified by the circumstances. I could not find a copy of the letter online but if you suspect wrongdoing I recommend contacting your representative or filing a FOIA request.
~Max