Oh, THAT kind of "cataclysmic fight to the death!" NOW I get it!
by Kagro X
Fri Jan 04, 2008 at 01:54:50 PM PDT
Right-wing blogworld is abuzz with something we here haven't heard a great deal about: the possibility that George W. Bush may issue an executive order directing federal agencies not to execute spending directives designated as "earmarks" in the recently-signed omnibus appropriations bill. The idea appears to have surfaced first, perhaps unsurprisingly, at the Heritage Foundation.
The vehicle of the executive order got a brief mention a day later in the Washington Post's coverage of Bush's general (alleged) dissatisfaction with the number and cost of those earmarks, but it's not entirely clear from what the White House has said whether or not they believe an executive order is necessary to do this.
Calling Congress irresponsible for lumping 11 spending bills into a single, 1,400-page measure nearly three months into the fiscal year, he added, "Another thing that's not responsible is the number of earmarks that Congress included." While Congress "made some progress" curbing pet projects, he said that "they have not made enough progress."
Bush said he asked Jim Nussle, director of the Office of Management and Budget, to draft possible actions to take, but he would not elaborate. One option, aides said, would be to ignore the vast majority of earmarks that are included only in conference reports rather than in the appropriations bill itself.
As with most of this Congress' exercises of "power," this "administration's" first instinct is simply to ignore it, and for the "unitary executive" to exercise its "inherent power" to just direct the agencies not to spend the money as outlined by Congress. Can they do that? Well, in their world, of course, they can and will do anything they want until some larger force makes them stop.
But what about in the real world? Here's what the Congressional Research Service (CRS) has to say (PDF):
Most of these earmarks, however, are included in the Senate and House Appropriations Committees’ reports explaining a measure as reported. These earmarks are also frequently included in the managers’ joint explanatory statement (or managers’ statement) that accompanies the conference report. Committee reports and managers’ statements do not have statutory force; departments and agencies are not legally bound by their declarations. These documents do, however, explain congressional intent and frequently have effect because departments and agencies must justify their budget requests annually to the Appropriations Committees. [Emphasis added.]
Note that this is something we addressed in a slightly different context back in July, when we were looking at how effective a hypothetical defunding of the Iraq occupation might be. Another CRS report, "A Defense Budget Primer" (PDF) told us:
In a strict legal sense nothing requires DOD to adhere either to the recommendations in congressional reports or to its own program budget proposals in spending money appropriated by Congress at the line item level.
That's pretty much true of most earmarks and applicable to the other agencies as well. But if they're not binding, what makes them stick under normal circumstances? The first CRS report cited above (titled "Earmarks and Limitations in Appropriations Bills") tells us the agencies comply because they must justify their budget requests to Congress each year. The "Defense Budget Primer" puts it in more concrete terms:
A failure to spend funds in accordance with the detailed justification materials and committee reports, however, could cause Congress to lose confidence in the requests and might result in reduced appropriations or in line item appropriations acts.
George W. Bush, of course, does not give a shit about what happens to next year's appropriations. And frankly, I can't imagine that he'd be all that worried about the agencies being punished by Congress even if he weren't on his way out of office next year, because no one on Capitol Hill has given him any reason to expect any kind of serious, constitutional-level pushback on anything, anyway.
It's also worth noting that we've been down this road before, so it can't come as a complete shock. NRO's Phil Kerpen notes that this move has precedent. And, surprise! It comes from the Reagan administration. So this sort of power-grabbing, it appears, doesn't really just go away forever when we elect a Democratic president. It just goes into stasis to be revived by the next Republican. The result of that standoff, by the way?
Appropriators and other members of Congress predictably were outraged, and they used every lever of power available to retaliate. (They even threatened to de-fund Miller’s Office of Management and Budget.) Reagan, who had his hands full with Iran-Contra, ultimately backed down.
Another tick mark in the long and growing count of reasons why aggressive, forceful push-back from Congress across the board is absolutely critical to the effective exercise of power. But don't get me started.
So if most earmarks aren't legally binding, what's the attraction of the executive order? Well, for one thing, as the CRS report on earmarks and limitations notes, there are many different kinds of things included under the broadest definition of "earmarks," and that includes some that actually are included in the text of appropriations bills, and therefore are legally binding. Further, as the Heritage Foundation's memo notes:
The appropriations bills' texts contain several sections stating that a certain amount of a program's budget "shall be available for projects and in the amounts specified in the explanatory statement described in section...." This may effectively make many of the earmarks in the conference reports legally binding.
The attraction of the executive order, then, is its ability to (possibly) overcome the binding language in the bill.
Would Bush do it? There are very few political reasons for him not to. He certainly has no reason to believe the Congress is prepared to vindicate its prerogatives against him (see our long and ongoing discussion of Congressional "subpoena power"). And any punishment exacted on the agencies in next year's appropriations is someone else's problem.
Besides, consider the optics of a Democratic Congress finally roused to go to war with this president... over earmarks. Yes, it's the practical incarnation of the "power of the purse," and even defensible as a method (under normal circumstances) of insisting on Congressional spending priorities over the president's. But earmarks are also most familiar to the voting public by its more vulgar name: "pork."
So it should come as no surprise that Bush just may be testing the waters in a backhanded fashion as we speak:
Senator Byron Dorgan (D-ND) authored a provision that scrapped the pilot program allowing Mexican long-haul trucks into the United States. It was included in the Omnibus Budget Bill that was signed by President Bush just before the Christmas break.
So far so good, right?
Well, last week the Department of Transportation announced it will continue the pilot program anyway. And this, my friends, is called breaking a federal law.
The DOT, is trying to get around this bipartisan mandate by saying the law says that funds will not be used to establish a pilot program. "Well," they say, "we don’t need to establish a pilot program; we already have one ... So keep em rolling!"
The DOT, it should be noted, may indeed have a point. Dorgan's provision may well have been poorly drafted, leaving them enough wiggle room to pull this end-around. But the subtext here may be an effort to gauge Congressional resolve when it sees its "power of the purse" tested, first on grounds justifiable with creative legal interpretations, and later, just maybe, in an outright frontal assault.
And if those earmarks are now in danger after all, now would be the time to recall what Appropriations Chairman David Obey suggested in mid-December:
A $522 billion omnibus spending bill had been scheduled for a House vote Tuesday, but House Appropriations Committee Chairman David Obey (D., Wis.) abruptly announced he won’t file it tonight and recommended substantial revisions before a floor vote. Obey said he is prepared to cut billions from domestic programs and eliminating all home-state projects or spending "earmarks" favored by lawmakers in both parties.
"I’m not in the business of trying to pave the way for $70 billion or $90 billion for Iraq for $10 billion in table scraps," Obey said. "We asked Bush to compromise. He has chosen to go the confrontation route."
"I want no linkage what-so-ever between domestic [spending] and the war. I want the war to be dealt with totally on its own. We shouldn’t be trading off domestic priorities for the war."
That bill, as we all know, did indeed get pared down on the earmark side, and the way was in fact paved for $70 billion for Iraq.
How "politically savvy" and "realistic" is that strategic retreat looking now?
As our friend occams hatchet put it, "What part of 'cataclysmic fight to the death' did you not understand?"
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