The Federal Reserve and the Treasury Department may have to return to Congress to reopen emergency loan programs, setting up a complicated legal puzzle for the incoming Biden administration over securing help for struggling businesses and localities.

On Tuesday, key policymakers suggested to Fed Chairman Jerome Powell and Treasury Secretary Steven Mnuchin that they would have to ask Congress for reauthorization of any new programs after nine of the Fed’s 13 liquidity facilities expire on December 31.

Several facilities set to wind down cover loans to small- and medium-sized businesses and state and local governments, with others backstopping the markets for asset-backed securities and corporate bonds.

“If some terrible thing were to happen to threaten the viability of our financial markets then the Treasury and the Fed should come back to Congress and ask for the appropriate facilities at that time,” said Senator Pat Toomey (R., Penn.).

Toomey is in line to succeed Senator Mike Crapo (R., Idaho) as the head of the Senate Banking Committee, making him a powerful voice in the debate over the Fed and Treasury response to the COVID-19 crisis.

Powell and Mnuchin testified to the Senate Banking Committee for the first time since their public spat over the expiry dates. Powell has since agreed to return over $400 billion in unused money from the Coronavirus Aid, Relief, and Economic Security (CARES) Act passed in March, but reminded Congress that the facilities helped “keep organizations from shuttering” and allow employees to stay on payroll.

Mnuchin and Powell agreed that the Treasury Secretary has the sole authority to end the programs and rescind the funds from the Fed facilities. Mnuchin added that the Treasury has “no discretion” over use of that money beyond returning it to the Treasury’s general fund.

“My decision not to extend these facilities was not an economic decision,” Mnuchin told the committee.

What will the Biden administration do?

But Toomey’s assertion that the Fed and Treasury would have to return to Congress to reopen its facilities remains an open legal question. And Mnuchin’s interpretation over the use of the clawed-back funds could be different under the next Treasury Secretary, which, pending Senate confirmation, would be former Fed Chair Janet Yellen.

Neil Barofsky, a former special inspector general of the $700 billion Troubled Asset Relief Program (TARP), told Yahoo Finance last week that Mnuchin was “making it up” on his interpretation of the CARES Act. He suggested that the Biden administration could undo Mnuchin’s move by shifting the funds from the General Fund into the Treasury’s Exchange Stabilization Fund.

The ESF, which still has under $80 billion available at the moment, could then be tapped to restart liquidity facilities. The question is if a Yellen-led Treasury wants to square off with Congressional Republicans over a legal reading of the Trump administration’s legislation.

For his part, Powell has said the economy will need more help going forward, with millions still out of jobs.

“We can both acknowledge the [economy’s] progress and point out just how far we have left to go,” Powell told the lawmakers. “The lion’s share of the credit should go to fiscal policy."

Brian Cheung is a reporter covering the Fed, economics, and banking for Yahoo Finance. You can follow him on Twitter @bcheungz.

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