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article imageEarmarks: Will Bush Issue an Executive Order?

By Susan Duclos     Dec 22, 2007 in Politics
"Can Bush issue an executive order to instruct all Federal agencies to ignore non-legislative earmarks tucked into committee reports and statements of managers?" If the answer is yes, then the question becomes, will he?
Let's start with The Examiner, Mark Tapscott's article, which caught my eye, showing that a number of groups sent an open letter to the president, citing a December 18, legal opinion of the Congressional Research Service (CSR) "because the language of committee reports do not meet the procedural requirements of Article I of the Constitution -- specifically, bicameralism and presentment - they are not laws and, therefore, are not legally binding on executive agencies."
The rushed way in which Congress passed the omnibus - one of the largest pieces of legislation ever considered - made a mockery of our legislative process, and Congress itself bears the responsibility and shame for that. But you have the power to send a message both to Congress and the American people that the waste and corrupting influence of earmarks will not be tolerated. A December 18 legal analysis by the Congressional Research Service concluded that "because the language of committee reports do not meet the procedural requirements of Article I of the Constitution -- specifically, bicameralism and presentment - they are not laws and, therefore, are not legally binding on executive agencies... Given both the implied legal and constitutional authority as well as the long-standing accepted process of Presidents, it appears that a President can, if he so chooses, issue an executive order with respect to earmarks contained solely in committee reports and not in any way incorporated into the legislative text."
The signatories of that letter were:
Alabama Policy Institute
American Conservative Union
American Values
Americans for Prosperity
Americans for Tax Reform
Calvert Institute for Policy Research
Citizens Against Government Waste
Club for Growth
Commonwealth Foundation
Eagle Forum
Evergreen Freedom Foundation
Family Research Council
Freedom Works
Illinois Policy Institute
Larry Kudlow, Kudlow & Company, LLC
The National Tax Limitation Committee
National Taxpayers Union
Porkbusters.org
Taxpayers for Common Sense
In President Bush's December 20th, 2007, press conference, he said " Another thing that's not responsible is the number of earmarks that Congress included in a massive spending bill. Earmarks are special interest items that are slipped into big spending bills like this one -- often at the last hour, without discussion or debate. Congressional leaders ran in the last election on a promise that they would curb earmarks. And they made some progress and there's more transparency in the process, but they have not made enough progress. The bill they just passed includes about 9,800 earmarks. Together with the previously passed defense spending bill, that means Congress has approved about 11,900 earmarks this year. And so I'm instructing Budget Director Jim Nussle to review options for dealing with the wasteful spending in the omnibus bill."
Who is the CSR and how serious can their "legal analysis" be taken? From their website we find this out.
In 1914, Congress passed legislation to establish a separate department within the Library of Congress. President Woodrow Wilson signed the bill into law, and CRS, then called the Legislative Reference Service, was born to serve the legislative needs of the Congress.
With the Legislative Reorganization Act of 1970, Congress renamed the agency the Congressional Research Service and significantly expanded its statutory obligations. The services provided today by CRS are a direct result of congressional directives and guidance.
The Congressional Research Service (CRS) serves shared staff to congressional committees and Members of Congress. CRS experts assist at every stage of the legislative process — from the early considerations that precede bill drafting, through committee hearings and floor debate, to the oversight of enacted laws and various agency activities.
According to the Washington Post, a vast majority of earmarks are included only in conference reports rather than in the appropriations bill itself. Although traditionally honored, language in such reports is not legally binding.
Most earmarks are not written into the actual appropriations bills that are signed into law. Rather, they are included in conference reports, which are explanatory statements that accompany the legislation to the President's desk. Because they are not technically part of the bill, the Executive Branch is not legally bound to implement conference reports. The President could simply direct agencies to ignore the earmarks listed in the conference reports. The funds would still be spent, but the agencies would have the discretion to distribute the funds by merit rather than congressional diktat. (Source)
The National Taxpayers Union names just a couple out of the 9,000-plus earmarks that were "airdropped" into the bill but are not written into the actual appropriations bill nor considered by either chamber.
"Congress's procrastination led to a reprehensible free-for-all," said Moylan, who noted that over 300 of the 9,000-plus earmarks in the final omnibus package had never been previously considered by either chamber. Some of the earmark lowlights include a $1.95 million project honoring Rep. Charles Rangel (D-NY) to help build the "Charles B. Rangel Center for Public Service" at City College of New York. The bill also includes $213,000 for olive fruit fly research in France, and $200,000 for a hunting and fishing museum in Pennsylvania.
They also claim that although some of the earmarks in the latest omnibus bill are "embedded in statutory language", many others can be canceled with an executive order.
Bush has allowed far too much pork in bills during his terms, angering fiscal conservatives that want less corruption and waste from our government and more accountability for where and how tax dollars are being spent.
He and the Republican party have promised to get back to fiscal conservatism and now is the time to either do so or stop talking about it.
The question at the beginning of this article is the one we end it with, will President Bush sign an executive order regarding earmarks that were air dropped into conference but are not written into the appropriations bill itself?
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