When is it Permissible for the President to Ignore Legislative Intent?

Marty Lederman

A: When that intent is reflected only in a committee report, and not in statutory language.

In his State of the Union address last year, President Bush said this:

[O]ver 90 percent of earmarks never make it to the floor of the House and Senate-they are dropped into committee reports that are not even part of the bill that arrives on my desk. You [Congress] didn't vote them into law. I didn't sign them into law. Yet, they're treated as if they have the force of law.

Notice the passive voice. Bush was complaining that earmarked spending "obligations" appearing only in committee reports, and not in enacted laws, "are treated as if they have the force of law." By whom are they so treated? By the President and the Executive branch agencies, which have historically acted in compliance with such "committee report earmarks." In other words, Bush had little to complain about then: He should have looked in the mirror. Like just about all Presidents before him, President Bush generally abided by report earmarks, even though he was under no legal obligation to do so. Why did he do it? Because it's long been part of the ordinary legislative/executive process of mutual accommodation, and he did not wish to unnecessarily make waves.

Well, this year President Bush has called Congress's bluff -- at least for the time being. In an Executive Order he issued today, Bush instructed federal agencies that, with respect to "all appropriations laws and other legislation enacted after the date of this order," the head of each agency must take "all necessary steps" to ensure that:

(i) agency decisions to commit, obligate, or expend funds for any earmark are based on the text of laws, and in particular, are not based on language in any report of a committee of Congress, joint explanatory statement of a committee of conference of the Congress, statement of managers concerning a bill in the Congress, or any other non-statutory statement or indication of views of the Congress, or a House, committee, Member, officer, or staff thereof;

(ii) agency decisions to commit, obligate, or expend funds for any earmark are based on authorized, transparent, statutory criteria and merit-based decision making, in the manner set forth in section II of OMB Memorandum M-07-10, dated February 15, 2007, to the extent consistent with applicable law; and

(iii) no oral or written communications concerning earmarks shall supersede statutory criteria, competitive awards, or merit-based decisionmaking.

This does not mean that an agency must wholly ignore the wishes of congressional committees or members: It can take those wishes into account, but apparently only for their persuasive value on the "merits" of the funding, rather than because of the identity of the person or committee articulating the earmark. The agency's funding decisions must be based on "statutory criteria" (which can themselves include a very wide range of funding discretion), and "merit-based decision making."

This is a fairly bold move, but it is not unconstitutional for the Executive branch to ignore report-language earmarks that are not statutorily prescribed: "[A] fundamental principle of appropriations law is that where 'Congress merely appropriates lump sum amounts without statutorily restricting what can be done with those funds, a clear inference arises that it does not intend to impose legally binding restrictions, and indicia in committee reports and other legislative history as to how the funds should or are expected to be spent do not establish any legal requirements on' the agency." Lincoln v. Vigil, 508 U.S. at 192.

Of course, just because something is constitutional does not make it wise, or consistent with the extra-constitutional accommodations that are the daily lifeblood of relations between Congress and the Executive: "[A]n agency's decision to ignore congressional expectations may expose it to grave political consequences." Id. at 193. According to the New York Times, "congressional leaders of both parties . . . said Mr. Bush would provoke a huge outcry on Capitol Hill if he ignored [such] earmarks. Lawmakers, including the House Republican whip, Roy Blunt of Missouri, have cautioned the White House that a furor over earmarks could upend Mr. Bush’s hopes for cooperation with Congress on other issues, including efforts to revive the economy." President Bush has shrewdly acted in the final year of his second term, however, so that those grave consequences will primarily fall on his successors, not on him.

What can Congress do about this, other than to make life hard on Executive branch agencies by withdrawing its own cooperation on various matters? Well, it can place the earmarks in the statutory language itself. Or, more modestly, it might simply incorporate the committee-report language by reference in the terms of the bill, instructing an agency to, for example, "provide funding to those projects specified in [name of committee report]." If Congress were to so act, the Executive branch would be obligated to make such expenditures, which would render the new Executive Order something of a formality.
Posted 11:20 PM by Marty Lederman [link]