June 1, 2020

Can President Trump Defund the WHO?

Zachary Price Professor of Law, University of California Hastings College of Law

He probably can—but only because existing appropriations laws give him the authority to do so.

After delaying payments to the World Health Organization (WHO) last month, President Trump sent the WHO a letter two weeks ago cataloguing alleged failures in the organization’s response to COVID-19 and threatening to make the temporary freeze “permanent and reconsider [U.S.] membership in the organization” unless it “commit[s] to major substantive improvements in the next 30 days.”  Then on Friday (well before the 30 days had elapsed), President Trump declared, “Because they have failed to make the requested and greatly needed reforms, we will be today terminating our relationship with the World Health Organization and redirecting those funds to other worldwide and deserving, urgent global public health needs.”

It is not clear to me whether by “terminating our relationship” the President means simply to withdraw support or to take some more drastic step like ending U.S. membership.  As always, it is also unclear whether his administration will follow through on his statements.  In this post, I will analyze just one issue raised by the President’s escalating threats:  Assuming the United States remains a member in some form, can the President just end U.S. funding for the WHO on his own?

As I explained in this article on Congress’s power of the purse, the President has no constitutional authority to deny international aid if Congress mandates the aid by statute.  For better or worse, however, current appropriations laws do seem to give the administration some flexibility over WHO funding.  Congress could choose to eliminate that flexibility and mandate WHO contributions, but until it does so it looks to me like the administration has authority to withhold some or all of the U.S. contribution.

Constitutional Background

Let me start with the constitutional background. As discussed in my article and this earlier blog post, Congress has authority to control foreign aid through its so-called “power of the purse,” that is, its authority over federal expenditures.

Unlike certain other foreign affairs functions, such as recognizing foreign governments and communicating diplomatic positions, providing aid is not something the President can do on his own; he depends entirely on congressional appropriations to provide funds for it.  For that reason, any presidential authority to provide aid is “resource-dependent,” as I put it in the article.  Only Congress can appropriate funds for the aid, and accordingly Congress has authority to dictate the terms and conditions on which the funding is available.

In this case, that means that Congress can mandate funding for the WHO, just as it could mandate expenditures on, say, AIDS treatment in Africa, foreign aid to allies, or—just hypothetically—Ukrainian military defenses.

President Trump’s impeachment of course actually centered on delayed assistance to Ukraine, and I’ll return to that example shortly.  Amid debates over the impeachment, some argued, and the administration itself hinted, that the President has preclusive authority to withhold aid if he chooses.  This view is wrong.  It is at odds with the constitutional text, which empowers Congress to appropriate funds by statute and then obligates the President to “take Care” that all federal laws, including appropriations statutes, are faithfully executed.  In addition, although Presidents have claimed on occasion that they have a foreign-affairs prerogative to withhold mandated aid, I am aware of no significant pattern of actual executive behavior based on this theory.

Before 1974, Presidents did regularly “impound,” or decline to spend, appropriated funds when they felt the spending was unnecessary.  But Congress repudiated this presidential authority in the Impoundment Control Act of 1974 (ICA).  As a result, with limited exceptions defined by the Act, Presidents are now obligated to spend funds that Congress has appropriated.  As then-Judge Kavanaugh observed in a D.C. Circuit decision, “a President sometimes has policy reasons . . . for wanting to spend less than the full amount appropriated by Congress for a particular project or program.  But in those circumstances, even the President does not have unilateral authority to refuse to spend the funds.”

Current Appropriations

So what do current appropriations laws say about WHO funding?  The United States in the past has not only paid its required annual dues to the WHO, but also provided extensive voluntary funding for particular programs.  I will focus here on the required annual dues, which are obligatory for member states under international law.

Applicable Statutory Language

For the current fiscal year, Congress made no specific appropriation for WHO dues, but instead made a general appropriation of $1,473,806,000 for all dues to international organizations.  Specifically, the statute provided that this sum was made available “to meet annual obligations of membership in international multilateral organizations, pursuant to treaties ratified pursuant to the advice and consent of the Senate, conventions, or specific Acts of Congress.”

With respect to defunding the WHO, then, the key question is whether the administration could spend the full balance of this appropriation, less any sums it has already provided to the WHO and other organizations, on “annual obligations of membership” in organizations other than the WHO.  Although I have not seen any precise tabulation of the relevant amounts, I suspect that it can, in part because the United States has often failed to pay its full dues in the past and thus often owes substantial arrears to international organizations.  For some perspective on the numbers, the United States has already paid $60 million towards its $120 million WHO assessment this year, but as of October last year the United States owed the United Nations some $381 million in unpaid dues from earlier years; in December, we apparently covered this debt and then some with a $563 million payment, but still owed some $674 million in arrears from 2019.  (The United States also owes billions in arrears for peacekeeping missions, but those are typically covered by a separate appropriations account.)

Assuming the administration can find such alternative ways to spend the money, the statutory language appears to give the administration discretion to prioritize other organizations’ dues over the WHO’s.  Administration sources in fact floated this interpretation of the appropriations language to reporters, and unless I am missing something it appears to me to be essentially correct.

It is true that in the 2019 fiscal year, the conference committee report accompanying similar appropriations language indicated that the conferees “assume[d] the payment of the full United States assessment at each respective organization funded under this heading.”  This year’s conference committee, however, did not include such language, which in any event was not legally binding.  This year’s explanatory statement indicated that Congress meant to “provide[] not less than $67,397,000 for a United States contribution to the North Atlantic Treaty

Organization (NATO) for fiscal year 2020.”  By indicating which organization the President should prioritize, the committee arguably implied that the President in fact has prioritization authority in the first place—authority the administration is now apparently employing to halt funds to the WHO.

The Ukraine Analogy

The House Appropriations Committee spokesperson has indicated that by withholding funds from the WHO, the President “is violating the same spending laws that brought about his impeachment.”  That does not seem quite right to me.

President Trump was impeached over allegations that he delayed mandatory military assistance to Ukraine in hopes of inducing the Ukrainian government to dig up dirt on his political opponent Joe Biden.  The Government Accountability Office concluded in a legal opinion that the Ukraine spending delays violated the Impoundment Control Act, even though the money was ultimately released within the same fiscal year, because the delays amounted to a “deferral” under the Act.

Under the ICA, a deferral is the “withholding or delaying” expenditure of appropriations “provided for projects or activities” or “any other type of Executive action or inaction which effectively precludes the obligation or expenditure of budget authority.”  The ICA allows deferrals only if certain procedures are followed, and it does not allow the President to make them based on policy disagreement with Congress’s funding choices.  Instead, the statute allows deferrals only “(1) to provide for contingencies; (2) to achieve savings made possible by or through changes in requirements or greater efficiency of operations; or (3) as specifically provided by law.”  In addition, the GAO has understood the statute to allow “programmatic” delays when an agency is doing its best to implement a program, but “because of factors external to the program” money cannot immediately be spent.  The GAO concluded in the Ukraine case that the delay was an unlawful deferral because it was made for reasons of policy, rather than any reason allowed by the ICA or because of a programmatic delay.

In the WHO example, as with the Ukraine funds, the administration’s reasons for withholding WHO funds might be matters of policy rather than programmatic implementation.  But it is not clear to me that the administration has made a deferral at all if it is continuing to spend the full appropriation for purposes consistent with the statutory language.  The appropriation for Ukraine applied only to Ukraine.  The appropriation here covers spending for all international organizations.  Hence, diverting money away from the WHO to other organizations does not necessarily delay or preclude any activity Congress has specifically funded.

Trump’s Impeachment

For its part, the House of Representatives impeached President Trump not for violating the Impoundment Control Act as such, but instead for acting with the abusive and corrupt purpose of harming a political opponent.  That theory also does not seem squarely applicable here.  The President may have political reasons for picking a fight with the WHO, but Presidents have political reasons for nearly everything they do, and this would hardly be the first time that politics led to bad policy.  The President’s actions with respect to Ukraine were corrupt and abusive in a much more specific sense.

That said, the President’s letter is vague about what exact reforms the administration is seeking from the WHO in exchange for continued funding.  The President’s duty ultimately is to faithfully execute Congress’s funding choices, and the President could breach that duty by pursuing foreign policy goals fundamentally at odds with Congress’s policy in providing the funding.  (In a somewhat analogous context, for example, I have argued that executive officials should not presume authority to conditionally waive requirements in regulatory statutes so as to impose different requirements at odds with the statutes’ particular features.)

Absent more specific appropriations language, however, or at least more information about the President’s negotiating objectives, it is hard to say that the President has yet breached this limit.  Congress might wish to provide money no questions asked, but the appropriations law it passed instead gave the administration at least some discretion over how to allocate funds for international organizations.  In that context, employing that discretion to seek improvements in the WHO’s effectiveness, as the administration is at least ostensibly aiming to do, does not seem clearly out of bounds.

The Bottom Line

To sum up, then, failing to pay our WHO dues could be bad policy, and it could carry international-law consequences, such as loss of voting rights at the WHO, but for better or worse it appears to me to be permissible under this year’s appropriations.

As I noted at the outset, all my analysis presumes that the size of the governing appropriation is small enough to give the administration wiggle-room over which organizations it funds and in what amounts.  If I am wrong about that assumption, then my bottom-line answer would change as well.  Although the applicable appropriations statute grants some authority to “reprogram” funds from one account to another, this power is limited; emergency authorities such as those the President used to divert funds for his border wall would not obviously provide a lawful means of diverting these funds; and the general ICA restrictions on deferrals and other types of impoundments limit any non-payment of appropriated funds.  Given, however, the extent of U.S. obligations and arrears for other organizations, I expect that the administration can find ways to spend the money here even if it fails to pay its full dues to the WHO.

What To Do?

What, then, can those who disagree with the President do?  If Congress wishes to ensure continued WHO funding, there is an easy fix:  Congress can mandate payment of WHO dues in the next annual appropriation, with or without the conditions the President is trying to impose.

Because annual appropriations require Presidents to come back each year seeking new funding for their priorities, Congress holds leverage each year to override or modify presidential choices—and it should use that leverage here and in other areas to keep unilateral presidential policy-making in check.  Congress should also exercise oversight to compel greater transparency from the administration about its legal theories and foreign policy goals.  As Eloise Pasachoff has suggested, it might also consider reforms to reinforce congressional authority over appropriations and improve the transparency and accountability of executive decisions.

But on the WHO issue specifically the ball is in Congress’s court.  If I am right about the discretion afforded by current appropriations, then Congress will need to decide whether to limit this discretion in future years.  If it does, then the President will lack constitutional authority to defy Congress’s mandate—and he should not be allowed to claim otherwise.

Executive Power, Separation of Powers and Federalism