President cannot lawfully close USAID - Just Security

Can the President Dissolve USAID by Executive Order? - Just Security

 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.