Bench Memos

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Force of Law? What Force of Law?


Commenting on an e-mail list about the president’s State of the Union address the other night, Marty Lederman of Georgetown Law and the Balkinization blog notices this interesting use of the passive voice in the speech:

“[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 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.”

They’re treated as if? That is to say, earmarks do not have the force of law, since “committee reports” are not part of the statutes passed. So who exactly treats them as though they were legal mandates? Why, the executive branch agencies whose funds Congress is appropriating in each spending bill. In other words, the officials who (in general) answer to the president in actually spending the money Congress appropriates-they’re the ones who are treating nonstatutory earmarks “as if they have the force of law.” Which they don’t have.

Could the president then take unilateral action to ignore earmarks and spend the appropriated funds on other agency purposes consistent with each agency’s statutory authorizations? It sure looks that way. What keeps presidents from doing this is not any constitutional principle supporting the earmarks practice (and by the way, when did “pork barrel” become “earmarks”? can we call them “pigs’ ears”?). It’s relationship maintenance between the branches of government, loftily called “comity,” which presidents are loath to violate. And agency heads especially hate the idea of ticking off members of Congress.

But it would be nice to see a president call Congress’s bluff. President Bush, however, might have issued an invitation to make things worse. His speech continued: “The time has come to end this practice. So let us work together to reform the budget process, expose every earmark to the light of day and to a vote in Congress, and cut the number and cost of earmarks at least in half by the end of this session.”

The end Bush seeks may be frustrated by the means he has recommended. If every earmark gets a vote in Congress, it gets put in the text of the spending bill, and henceforth has statutory protection from executive nullification, since there is no line-item veto, and there won’t be one any time soon. If, on the other hand, the president undertook to spend every dollar appropriated on executive-branch priorities in each agency, ignoring all nonstatutory earmarks, then after the howling died down we might well see some reduction in the magnitude of the practice.


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