High level officials on Capitol Hill gave me two, lengthy legal memorandums that thoroughly analyzed the budget laws governing FAA's sequestration. Their conclusions: The FAA has some flexibility in making its budget cuts and that it has authority to transfer funds from one account to another to ease the impact of sequestration.
There are seven distinct programs under FAA authority and "the FAA retains discretion -- at least as a matter of sequestration law -- with respect to how to implement cuts within each of these seven activities, so long as the uniform percentage reduction for the overall activity is achieved," one memo concluded.
"The statutory requirement of uniformity, in other words, does not restrict the FAA's choices about how best to reduce spending levels for items within each of the budget activities consistent with its statutory responsibilities," the memo added.
A second legal analysis provided to me by senior GOP officials cited statutory appropriation laws and rulings from the Office of Management and Budget that furloughs should be considered only "as a last resort." Citing the congressional conference report governing federal pay provisions, this memo states:
"The conferees urge program managers to employ all other options available to them in order to achieve savings required under a sequestration order and resort to personnel furloughs only if other methods prove insufficient."
"Because furloughs would, as FAA has indicated, impede air traffic operations and threaten airspace efficiency in a highly intrusive and public manner, the FAA should do all within its power to avoid that disruption with OMB's priorities," the memo said.
As the slowdown worsened at our busiest airports this week, the White House made little if any pretense about what this fight was really all about: political payback for being forced to accept the sequestered spending cuts.
"We did everything we could to avert the sequester, and unfortunately Republicans decided as a political matter that it was a home run for them to inflict this upon the American people," said White House press secretary Jay Carney.
What Carney doesn't acknowledge is that the sequester language also was approved by the Democratic-controlled Senate and signed into law by the president.
There's another important point that has gotten lost in all of this, a senior House Republican official told me. "Even if they believe they have to resort to some furloughs, they obviously can make decisions about where the furloughs fall," the official said.
"Put in place a plan that would reflect where they would have the least impact on the public. Instead, they've chosen to implement these furloughs in the most careless way possible. Did they do any research about what is the most effective way to do this? Did they get any input from the airlines? What planning went into place here? Apparently none," he said.
In a blistering Senate speech Wednesday, Minority Leader Mitch McConnell pointed out that "the Obama administration knew about the sequestration for months. Yet it gave the traveling public and Congress only three days' notice before implementing the furloughs that are now being blamed for these delays."
The result: the airline schedules are in chaos, the FAA's budget decisions are being run out of the West Wing, and Obama is still playing "blood sport" politics on Capitol Hill.
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