Earmarks and Executive Prerogative

Written by Henry L. Chambers, Jr. on March 11th, 2009

In his post a few days ago, Bobby ably discussed earmarks from the congressional perspective.  There is no point in replaying that discussion.  However, it is worthwhile to note that a congresswoman can quite sensibly say, “If a $787 billion stimulus bill is going to be passed, a particular project in my district had better be a part of the appropriation or I will not vote for it.”   The relevant project can be a building project (school construction) or a program that will tend to direct a disproportionate share of funds to the congresswoman’s district (foreclosure relief).  Of course, programs tend to be thought of less as earmarks than building projects, but there is little reason why they should be given that they are focused efforts to bring a chunk of money back to one’s district.  That issue can be left to the side for now.

A different vision of earmarks focuses on its role in cabining executive prerogative.  At one extreme, Congress could provide appropriations bills with few or no strings attached.  Such a bill might provide $x billion “to run the Department of Health and Human Services for fiscal year 2010.”   Congressional priorities wouearmarkpig.gifld be nonexistent and presidential prerogative would be at its greatest. The president would only be required to spend money in certain areas based on preexisting legislation creating mandated spending.  At the other extreme, Congress could provide appropriations bills with nothing but strings attached.  Congressional prerogative would be at its greatest and presidential priorities would be somewhat irrelevant.  The bill might provide such minute spending detail that the president would have little room to exercise independent judgment regarding how appropriations should be spent.  Broad appropriations bills that include earmarks fall between the extremes.  When they are part of a bill rather than merely part of the legislative history, earmarks reflect congressional priorities broadly and they cabin executive prerogative.  Interestingly and not surprisingly, President Obama has suggested that he will reassert executive prerogative with respect to earmarks by having his branch review specific earmarks to determine if they are beneficial.  What remains to be seen is how Congress will react if the president overrides a significant percentage of earmarks.  Stay tuned.


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