Freedom First Society

Issue: H.R. 4667, Making further supplemental appropriations for the fiscal year ending September 30, 2018, for disaster assistance for Hurricanes Harvey, Irma, and Maria, and calendar year 2017 wildfires, and for other purposes. Question: On Passage.

Result: Passed in House, 251 to 169, 12 not voting. GOP scored.

Freedom First Society: The first part of H.R. 4667 would provide $81 billion in FY2018 emergency appropriations (almost double the administration’s request) to several federal agencies for another round of disaster assistance related to Hurricanes Harvey, Irma, and Maria; and wildfires that occurred in 2017.

Despite its current political popularity, federal disaster aid is unconstitutional. Even worse, this particular spending measure is fiscally irresponsible with no offsets to stay within budget, as permitted under emergency provisions.   Moreover, substantial non-emergency funding included in the other divisions was specifically exempted from budgetary limits, again with no offsets.

51 Republicans opposed the measure, receiving blue check marks. We do not score the Democrats on this one as many of the 118 who opposed it, opposed it for wrong reasons — they wanted to spend more and complained that they were not invited to negotiate the final bill.

We have assigned (good vote) to the Nays and (bad vote) to the Yeas. (P = voted present; ? = not voting; blank = not listed on roll call.)

Bill Summary: H.R. 4667 is comprised of four divisions (A, B, C, and D). For each, we quote from the Congressional Research Service Summary.

Division A — Disaster Assistance: “This division provides $81 billion in FY2018 emergency appropriations to several federal agencies for disaster assistance related to Hurricanes Harvey, Irma, and Maria; and wildfires that occurred in 2017. (Emergency spending is exempt from discretionary spending limits and other budget enforcement rules.)”

Division B — Disaster Recovery Reform Act. “This division amends the Robert T. Stafford Disaster Relief and Emergency Assistance Act to modify the Federal Emergency Management Administration disaster response and recovery programs.”

Division C — Other Matters.  “This division amends the Agricultural Act of 2014 to designate cottonseed as a covered commodity beginning with the 2018 crop year. (Producers of covered commodities are eligible for Department of Agriculture [USDA] price and income support programs such as the Price Loss Coverage program.)  It also amends the Federal Crop Insurance Act to remove the $20 million cap on annual expenditures for livestock producers under the federal crop insurance program.

Division D — Budgetary Effects. “This division exempts the budgetary effects of division B and each succeeding division of this bill from Pay-As-You-Go (PAYGO) and other budget enforcement rules.”

Analysis: For H.R. 4667, Rep. Rodney Freylinghuysen, GOP Chairman of the House Appropriations Committee submitted a Constitutional Authority Statement, as required by current House rules. As usual, it was a sham bow to the Constitution, relying on public ignorance of what was going on. Here is his statement (Congressional Record, page H10180):

“Congress has the power to enact this legislation pursuant to the following: The principal constitutional authority for this legislationis clause 7 of section 9 of article I of the Constitution of the United States (the appropriation power), which states: ‘No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law….’”

FFS: But this does not provide any authority, only a requirement. So the statement continues:

“In addition, clause 1 of section 8 of article I of the Constitution (the spending power) provides: ‘The Congress shall have the Power . . . to pay the Debts and provide for the common Defence and general Welfare of the United States….’ Together, these specific constitutional provisions establish the congressional power of the purse, granting Congress the authority to appropriate funds, to determine their purpose, amount, and period of availability, and to set forth terms and conditions governing their use.”

The implication that Article I, Section 8 provides Congress with general legislative authority was refuted by Alexander Hamilton in The Federalist, No. 83, by pointing to the Constitution’s enumeration of specific powers:

“This specification of particulars evidently excludes all pretension to a general legislative authority, because an affirmative grant of special powers would be absurd as well as useless if a general authority was intended.”

And, in 1987, Notre Dame Law School Professor Charles Rice clarified the misuse of the clause:

“The Constitution created a government of limited, delegated powers. The term ‘general welfare’ in Article I, Section 8, does not confer on Congress a general power to legislate and regulate for purposes beyond those enumerated in the remaining clauses of Section 8.”

And, of course, Mr. Freylinghuysen’s statement failed to cite any specific authority for federal disaster aid, and he could not do so, because it’s not in the Constitution.

No restraint on spending

With the GOP-led House passage of H.R. 4667, there was no attempt at offsets to control the impact on the deficit. We recall Senator Rand Paul’s statement regarding the October round of FY2018’s disaster aid:

From the Congressional Record (10-24-17):

Senator Rand Paul (R-KY) (Emphasis added):

“Mr. President, we currently have a $20 trillion debt.   Now, we might ask ourselves, whose fault is it, Republicans or Democrats? The easy answer is both. Both parties are equally responsible, equally culpable, and equally guilty of ignoring the debt, ignoring the spending problem, and really I think allowing our country to rot from the inside out.   This year, the deficit will be $700 billion, for just 1 year for our country, $700 billion. We borrow about $1 million a minute. Under George W. Bush, the debt went from $5 trillion to $10 trillion. Under President Obama, it went from $10 trillion to $20 trillion. It is doubling under Republicans and Democrats.

“Right now, we are in the midst of another spending frenzy. People will say: Well, we are spending the money for something good. We are going to help those in Puerto Rico, in Texas, and in Florida. My point is, if we are going to spend money to help someone in need, maybe we should take it from another area of spending that is less in need. I think that just simply borrowing it — even for something you can argue is compassionate — is really foolhardy and may make us weaker as a nation.

“Admiral Mullen put it this way. He said: The No. 1 threat to our national security is our debt. In fact, most people who follow world politics — while we do have problems around the world — don’t really see us being invaded anytime soon by an army or an armada, but people do see the burden of debt…. My request is very simple: We should pay for it…. We are set, in all likelihood, to have over $100 billion spent on these hurricanes. I simply ask that we take it from some spending item that seems to be less pressing. We could go through a list of hundreds and hundreds of items….”

And the the House “Debates” re H.R. 4667 displays a similar attitude that federal money grows on trees:

From the Congressional Record (12-21-17):

Mr. Rodney Frelinghuysen (R) (NJ-11) (Emphasis added):

“We must stand by our fellow Americans to get them the help and resources they need to recover. To this end, this legislation provides a total of $81 billion for crucial Federal programs that support ongoing relief, recovery, and rebuilding…. This includes … $12.1 billion for the Army Corps of Engineers to repair and rebuild infrastructure projects that help protect against future disasters, building in resiliency.   The bill also includes $3.8 billion for the Department of Agriculture, which will support critical agriculture disaster assistance for massive crop and livestock loss. “Congress has already provided $51.75 billion in two separate supplemental bills for these ongoing efforts. With this third tranche of emergency funding, it will bring the total funding for fiscal year 2018 emergency response to $132 billion.”

Mrs. Nita Lowey (Ranking Member of the Appropriations Committee) (D) (NY-17) (Emphasis added):

“Mr. Speaker, this legislation is a failure of both process and substance. When Congress received the paltry and insufficient disaster request from the administration, the House and Senate Appropriations Committees began a bipartisan and bicameral process to develop an emergency assistance package that would come closer to meeting the massive scale of need resulting from hurricanes and wildfires in the summer and fall 2017.   I sincerely regret that the majority leadership abandoned that process….   Despite some robust funding levels, this bill fails to fix a potentially calamitous Medicaid system situation for Puerto Rico and the U.S. Virgin Islands.”

Mr. John Culberson (R) (TX-7) (Emphasis added):

“I am one of eight subcommittee chairmen who held public hearings at the request of the chairman…. We are grateful for the funding that is contained here…. For example, we have got $12 billion here for the Army Corps of Engineers’ projects that is going to be prioritized [[Page H10386]] and targeted to areas that have suffered repeated floods over the last 2 years, to areas that have been declared disasters by the President…. That is going to help us get that third reservoir built in northwest Harris County.   This funding is also sufficient to fully pay for all federally authorized flood control projects in southeast Texas. That means we will have front-loaded funding for a critical project to finish out Brays Bayou, to build it to the 100-year flood protection standard.   The Army Corps of Engineers’ funding is also going to allow us to dredge the Port of Houston, the Port of Beaumont, and open up those ports to full capacity…. Mr. Speaker, we will also be able to rebuild churches and synagogues.” 

Mr. José Serrano (D) (NY-15) (Emphasis added):

“I rise to sadly oppose this disaster supplemental, which does not do enough to help Puerto Rico and the U.S. Virgin Islands…. It does not do enough to help States like New York and New Jersey and others that have generously opened their arms to our fellow citizens displaced by these storms.”

Mr. Peter DeFazio (D) (OR-4) (Emphasis added):

“Mr. Speaker, I rise in support of Division B of this bill, which has bipartisan, bicameral support of the leadership of the Committee on Transportation and Infrastructure of the House of Representatives and the Committee on Homeland Security and Governmental Affairs of the Senate….. While there are many good provisions in Division B, I will focus my comments on a few provisions that I believe will have the most impact in making the United States a leader in disaster recovery. Under Division B, the Nation will be on the right track to build stronger and more resilient communities and it will encourage better behavior before and after disaster strikes.”


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