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WARNING: SPOILERS.
In the third season of "House of Cards," President Frank Underwood attempts a clever scheme to fund his $500 billion America Works jobs program.
Kevin Spacey's character plans to declare unemployment an emergency and use this as justification for seizing money from the Federal Emergency Management Agency (FEMA)— an agency normally concerned with natural disasters — and he kicks thing off by getting the mayor of D.C. to declare on emergency on a municipal level.
Simultaneously, he tries to convince Congress to cut Social Security drastically. The fictional president aims to reallocate all that money to fund the biggest jobs program since Roosevelt's New Deal.
Leaving aside whether this is a good idea, we wanted to know if it would be possible. The answer we got from a number of legal experts was surprising.
Could FEMA fund a jobs program?
FEMA, for its part, doesn't seem to think so.
Not so fast: The Stafford Act, which established many of the rules for FEMA, leaves things open.
"The Stafford Act is probably one of the broadest grants of discretion afforded to the president," says ex-FEMA lawyer William Cummings. "It is completely discretionary ... no one would have standing to sue him."
Cummings, who founded a nonprofit that analyzes emergency management and homeland security issues after retiring from FEMA, explained that an economic emergency like the fictional one declared in the nation's capital could in fact be used to re-appropriate FEMA funds, the same way a terrorist attack or an environmental disaster commands immediate funding.
As the act reads:
"Emergency" means any occasion or instance for which, in the determination of the President, Federal assistance is needed to supplement State and local efforts and capabilities to save lives and to protect property and public health and safety, or to lessen or avert the threat of a catastrophe in any part of the United States.
Underwood's crazy plan is looking good so far, even if doing this would be extremely controversial.
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How about tapping Social Security?
Gutting Social Security and using the money for a jobs program would require Congressional support, and the show gets that much right. It would be difficult to get that support — but it would be possible.
Laurence H. Tribe, a Constitutional law professor at Harvard and a devoted fan of the show, explains how hard this would be:
If money for a program like Social Security has been appropriated by a Congressional enactment, there is only one Constitutional way for the Treasury Department, under the direction of the President, to spend it on some different program, like the hypothetical “America Works” of the imaginary Underwood administration in House of Cards.
However essential and worthy a program like “America Works” might be, the only Constitutionally permissible way to divert any of the Social Security money to that new program would be for Congress to pass a new law (whether labeled an amendment to the Social Security Act or bearing some other name) expressly authorizing the redirection of the money – and then to appropriate the desired sum for the new program.
Neither the House of Representatives acting alone, nor the Senate acting alone, nor the two acting together by a mere concurrent resolution (i.e., a resolution not presented to the President for signing), or a Committee of either House, nor a bicameral joint Committee, nor the President by Executive Order or otherwise, can constitutionally accomplish the result that President Underwood accomplished on "House of Cards "— of which, by the way, I’m a devoted fan.
Even if Underwood got Congress to play along, the action could face judicial checks, though it could survive those, too.
"If the deed is done before the courts can get around to ordering the hypothetical President Underwood to cease and desist and put the money back in the federal piggy bank, then any lawsuit over the matter … would become technically moot,” Tribe says. "In practical political terms, if the President’s violation of the Constitution is sufficiently popular, the prospects of impeachment and conviction are obviously slim to none."
Of course, this action wouldn't exactly be popular.
"Congress has tried to put Social Security in a 'lockbox,'" Charles Tiefer, professor at the University of Baltimore School of Law, told Business Insider. "In theory, it can pass a statute cutting benefits and shifting funds non withstanding the 'lockbox.' In reality, the 'lockbox' raises the visibility of such an action, and, if it had any life in the first place, utterly dooms it anyway."
But the upshot is that seizing Social Security money — as with FEMA money — for a giant jobs program is possible.
Thankfully, Underwood isn't real.
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How about tapping Social Security?
