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Earmarks and the Executive
Bush has the constitutional authority to take a bold, unilateral stand on earmarking.


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Phil Kerpen

President Bush signed a massive omnibus appropriations bill last week, calling the $550 billion monstrosity “reasonable and responsible.” Leading fiscal conservatives aren’t so sure. The bill is littered with pork-barrel earmarks, which Bush, to his credit, has denounced. But this talk needs to be followed with action: If the president is to help restore fiscal discipline in Washington he must issue an executive order to prevent these 9,000 or so earmarks from being funded.

There is excellent precedent for this. President Ronald Reagan took on earmarks back in 1987, denouncing that year’s omnibus appropriations bill for being stuffed full of pork projects. When he asked his staff to determine how the power of his office could be used to address the problem, his budget director, Jim Miller (who is on my organization’s board of directors), found a solution where too few D.C. insiders ever look: the U. S. Constitution. Miller checked with attorneys and legal scholars and discovered that committee report language, which is where earmarks appear, should not be treated as law since it fails to meet the requirements of the Presentment Clause of the Constitution.

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Acting in accord with the Constitution, Miller told executive agencies to comply with the law and spend money on accounts for which it was appropriated. Meanwhile, he instructed agencies to treat report language properly — in other words, as not binding — and to disregard earmarks in committee reports. Spending decisions would thus be merit-based and not subject to political manipulation.

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.

In a déjà vu of sorts, President Bush recently instructed his own executive staff to investigate what he can do unilaterally on earmarks. A new report from the Congressional Research Service, requested by Sen. Jim DeMint, confirmed that the option first attempted back in 1987 remains viable.

In his State of the Union Address last year Bush pledged to work with Congress to cut earmarks in half. Instead, Congress quadrupled earmarks to near-record levels. Obviously, the time to work with Congress on this issue is over. And since Congress is already hostile to the president’s agenda, there would be no unique reprisal risk should Bush take a bold, unilateral stand on earmarking.

As soon as possible, perhaps in this year’s State of the Union, President Bush should announce that his administration will adopt via executive order a clear policy requiring agencies to disregard earmarks that appear only in committee report language. That would equate to a nearly earmark-free 2008, since the vast majority of earmarks do not appear in the text of the law. In the future, earmarks would be forced to appear in bill texts, where they would be subject to much greater congressional debate and public scrutiny.

The grassroots are energized and eager to end earmarking as we know it. Out on the campaign trail at least three of the leading GOP contenders have stated that their administrations would not permit earmarking. Presidential campaigns don’t take such strong policy positions unless public opinion is clear, and on earmarks it is: The public wants an end to pork-barrel earmarking. But the time is now.

President Bush can start the New Year right with a resolution to end unconstitutional earmarks.



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