Tag: Executive

President Donald Trump may be preparing to issue an Executive Order (E.O.) purporting to dissolve the U.S. Agency for International Development (USAID) and fold some or all of its functions into the State Department, according to reporting that emerged on Friday, Jan. 31. Senators Chuck Schumer (D-NY) and Chris Murphy (D-CT), among others, immediately objected that the president does not have the authority to dismantle USAID without an act of Congress. As of Sat., Feb. 1, the USAID website appeared to have gone dark. Dissolving USAID would be a final assault on the foreign aid agency, where the administration already has issued a stop-work order for huge swaths of development assistance and other aid, abruptly put at least 56 of its senior career staffers on administrative leave, and laid off several hundred contractors working directly for the agency. 

Such an action, however, likely would go far beyond the executive branch’s actual legal authority. The bottom line: while some functions delegated from the president to the secretary of state, and in turn to the administrator of USAID, could likely be pulled back by executive action alone, wholesale dissolution of the agency or formal transfer of functions provided by Congress would require legislation. Let’s unpack why.

Can the President Dissolve USAID Without An Act of Congress?

No, not lawfully. In 1961, USAID was created by an E.O. issued by President John F. Kennedy (E.O. 10973), based in part on authority provided in the Foreign Assistance Act of 1961. But a later act of Congress (The Foreign Affairs Reform and Restructuring Act of 1998, 22 U.S.C. 6501 et seq.) established USAID as its own agency. In a section titled “Status of AID” (22 U.S.C. 6563) it states:

(a) In general

Unless abolished pursuant to the reorganization plan submitted under section 6601 of this title, and except as provided in section 6562 of this title, there is within the Executive branch of Government the United States Agency for International Development as an entity described in section 104 of title 5. (emphasis added)

The key language here is “there is within the Executive branch of Government [USAID]” (see sections 6562/6563). Those are the words Congress uses to establish an agency within the executive branch. It would take an act of Congress to reverse that – simply put, the president may not unilaterally override a statute by executive order.  

The 1998 statute also transfers only certain functions of USAID to the State Department, and in essence requires USAID to handle all other pre-existing USAID functions described in the Foreign Assistance Act. This means that, at a minimum, Congress asserted a role for itself in such transfers of functions as well as early as 1998. 

Also in the 1998 Act, Congress gave the president a near-term, time-limited opportunity to reorganize these departments (22 USC 6601). Specifically, the Act provides, among other things, that within “60 days after October 21, 1998,” the president may, in a “reorganization plan and report” to be provided to Congress:

“(1) … provide for the abolition of the Agency for International Development and the transfer of all its functions to the Department of State or (2) in lieu of the abolition and transfer of functions . . . provide for the transfer to and consolidation within the Department of the functions set forth in section 6581 of this title; and may provide for additional consolidation, reorganization, and streamlining of AID . . .”  

President Bill Clinton submitted the statutorily-envisioned report to Congress on Dec. 30, 1998, within Congress’ specified 60-day window. In that report, the Clinton administration explicitly chose to retain the independence of USAID as its own agency (while providing for certain forms of coordination and resource sharing). It stated: 

(d) United States Agency for International Development. Effective April 1, 1999, the United States Agency for International Development shall continue as an independent establishment in the Executive Branch.

Congress provided the president the opportunity to modify or revise that plan (6601(e)) until the effective date of the reorganization plan, which the 1998 Act specified as no later than April 1, 1999 with respect to some USAID functions, and Oct. 1, 1999, with respect to the opportunity for abolition of the agency (6601(g)(2)). No prospective modification or reorganization authority was granted to the president beyond those effective dates. 

Finally, a much more recent provision of law – section 7063 of the FY24 State and Foreign Operations Appropriations Act (SFOAA) – explicitly requires both congressional consultation and notification to Congress for reorganizations, consolidations, or downsizing of USAID. Absent consultation and notification, actions to “eliminate, consolidate, or downsize” USAID or “the United States official presence overseas” would not be lawful.  

In short, Congress established USAID as its own agency and asserted its role in transfers of functions between USAID and State. It authorized the president to abolish or reorganize USAID for a moment in time, in accordance with the plan it authorized the then-president to provide in 1998. That reorganization occurred, with USAID’s independence retained. And there is no additional authority granted by Congress to the president to abolish USAID as an agency. 

Is There Scope for Real Reform?

As even the brief overview above demonstrates, USAID and the State Department are deeply connected agencies, and there may be legitimate policy reasons to seek to reorganize or restructure their relationship in some ways. Some of those measures could be undertaken unilaterally within the executive branch (like ensuring USAID activities hew closely to the State Department’s country strategies at posts in the field, or even transferring certain presidentially-delegated functions as noted above). At the same time, there are also compelling policy reasons for USAID to retain its own, independent leadership structure, which is the choice made by Congress, and by the presidency when given an opportunity by Congress to decide this issue in the past. 

If the Trump administration wishes to engage in a process with Congress to justify its view that USAID should no longer exist as its own agency, and seek legislation to effectuate that policy, it can do so. But wholesale dissolution of USAID, without an act of Congress, should not be confused with real, policy-oriented reform. It should instead be understood as another component of the Trump administration’s broadside against foreign assistance and U.S. government institutions writ large.

USAID has ongoing activities in more than 120 countries, with dozens of field offices around the globe. It works in the poorest countries, in countries affected by conflict, and in geopolitically strategic areas for advancing U.S. interests. Especially in light of the Trump administration’s already deeply damaging freeze on foreign aid, impacting everything from counter-trafficking and counter-narcotics assistance programs, to programs aimed at conflict prevention and stabilization, strengthening democratic governance, improving global health and food security, and more, the consequences of this action could be devastating to U.S. national security interests and to the well-being of some of the world’s most vulnerable populations.

What Will Happen Next if Trump Purports to Dissolve USAID by E.O.?

Litigation and congressional oversight are certain to follow, but the question is how effective either will be in the immediate term at stopping the most damaging impacts for USAID’s programs and its employees. The details of the E.O. will shape how specific challenges to the action unfold, but expect to see at a minimum suits brought by beneficiaries of USAID programs, impoundment act challenges, and more. 

Editor’s note: This piece is part of the Collection: Just Security’s Coverage of the Trump Administration’s Executive Actions

IMAGE:  The front of the U.S. Agency of International Development (USAID) headquarters building is seen on September 15, 2014, in Washington, DC. (Photo by J. David Ake/Getty Images)