You may not have noticed it, but tucked into President George W. Bush's State of the Union speech last night was a reference to an executive order he plans to issue today that sounds like an in-your-face invitation to a separation-of-powers battle with Congress.
Bush complained about congressional "earmarks," especially those that are snuck into committee reports that accompany legislation, rather than in the legislation itself. The president continued, "Tomorrow, I will issue an executive order that directs federal agencies to ignore any future earmark that is not voted on by Congress. If these items are truly worth funding, Congress should debate them in the open and hold a public vote." Our companion Influence blog discussed the anti-earmark effort here yesterday.
Bush's challenge seemed to mirror the controversy in recent years over his signing statements, in which Bush asserted his intention not to enforce certain parts of statutes he was signing. It even carried faint echoes of "impoundment," the presidential practice of outright refusing to spend appropriated funds, which got President Richard Nixon in such trouble with Congress. Does Bush's pronouncement portend a major courtroom clash between the executive and legislative branches? MSNBC's Chris Matthews ventured the guess on the air last night that Bush's move would be "extra-constitutional."
We asked Stanley Brand of Brand Law Group in D.C., one of the top go-to guys in the nation's capital for interbranch disputes such as this one. Brand, who was general counsel to the U.S. House of Representatives under Tip O'Neill from 1976 to 1983, said his initial judgment is that Bush's executive order falls within his powers.
"It could be the one instance of many efforts by President Bush to assert executive prerogatives where he is right," said Brand. "If an appropriation is not in the law, it's not part of the constitutional mandate" for the executive branch to spend it.
Brand explained that it has become common for members of Congress to express their specific preference for how an appropriation should be spent in a committee report, which does not have the same force of law that it would have if it were in the statute itself. Nonetheless, "agencies are subject to the will of their patron appropriators," Brand says, so they often take the committee reports as marching orders.
An executive order from the President will give agencies more backbone to refuse to spend earmarked money the way members wanted them to, says Brand, but in the real world "they will still be on the horns of a dilemma." But for now, Brand says, it does not appear that Bush's executive order will be "a litigable issue."