Tuesday, January 29, 2008

Those Hidden Earmarks

Here's an interesting tidbit that may not have sprung out at you as you dutifully watched President Bush's State of the Union address last night: the President said that he will, today, issue an executive order instructing federal agencies to ignore earmarks that aren't actually included in legislation.

The sound you hear is wailing, gnashing of teeth, and hell generally breaking loose on capitol hill. If the President gets away with this, it will be a big change in how things get done.

Of course, the real mystery is how earmarks have survived so long without being legislated. The way things have traditionally worked, it often happens that the actual text of appropriations legislation just specifies a lump sum for a general activity, and the "earmark" of a particular amount for something like a bridge to nowhere is included, not in the text of the law, but in a committee report accompanying the law.

Committee reports are not actually binding. The law is binding. Why do agencies follow committee reports at all? Presumably, they're afraid of what will happen to them the following year if they don't do what the committee wanted. But the executive officially answers to the law, not to a committee.

So I would say the President is on solid legal ground on this one. But politically, he's asking for more trouble than Bill Clinton could cause in a whole room full of White House interns. Considering what a low political ebb Bush is at, I'm surprised he's taking it on.


Anonymous said...

Do you think an independent agency could be forced to follow this order?

I'm not sure what the absolute limits of the power of an executive order are. Youngstown Steel would seem to apply; so, I would guess the relevant question is: does the President have to power to control independent agencies despite Congress's saying otherwise.

Jon Siegel said...

The President's powers over independent agencies are one of the murkiest areas of administrative law. I'm guessing that President Bush will limit his order to the executive agencies. If an independent agency chose to spend funds as directed by earmarks in committee reports, I can't see the President making an issue of it. So practically speaking, I would say they won't be forced to obey this order.