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The President, the Presentment Clause, and Earmarks
Posted By Conn Carroll On January 28, 2008 @ 10:58 pm In Ongoing Priorities | Comments Disabled
In addressing earmarks in the State of the Union, President Bush said, “I also asked you to stop slipping earmarks into committee reports that never even come to a vote. … [T]omorrow, I will issue an executive order that directs federal agencies to ignore any future earmark that is not voted on by the Congress. If these items are truly worth funding, the Congress should debate them in the open and hold a public vote.”
This is good policy, and it is a sign of how far we have drifted in interpreting laws that even the threat of an executive order on this count should be necessary. Committee reports simply are not law. They do not meet the requirements of bicameral passage and presentment to the President for signature found in Article I, Section 7 of the U.S. Constitution.
At best, committee reports reflect the views of the particular committee, not Congress as a whole. Indeed, it may be a bit much to assume that such reports have been adequately reviewed by members of the committee. Consider this famous exchange from the Senate floor concerning how familiar a committee chairman was with his own committee’s report:
Mr. ARMSTRONG. … My question, which may take [the chairman of the Committee on Finance] by surprise, is this: Is it the intention of the chairman that the Internal Revenue Service and the Tax Court and other courts take guidance as to the intention of Congress from the committee report which accompanies this bill?
Mr. DOLE. I would certainly hope so….
Mr. ARMSTRONG. Mr. President, will the Senator tell me whether or not he wrote the committee report?
Mr. DOLE. Did I write the committee report?
Mr. ARMSTRONG. Yes.
Mr. DOLE. No; the Senator from Kansas did not write the committee report.
Mr. ARMSTRONG. Did any Senator write the committee report?
Mr. DOLE. I have to check.
Mr. ARMSTRONG. Does the Senator know of any Senator who wrote the committee report?
Mr. DOLE. I might be able to identify one, but I would have to search. I was here all during the time it was written, I might say, and worked carefully with the staff as they worked….
Mr. ARMSTRONG. Mr. President, has the Senator from Kansas, the chairman of the Finance Committee, read the committee report in its entirety?
Mr. DOLE. I am working on it. It is not a bestseller, but I am working on it.
Mr. ARMSTRONG. Mr. President, did members of the Finance Committee vote on the committee report?
Mr. DOLE. No.
Mr. ARMSTRONG. Mr. President, the reason I raise the issue is not perhaps apparent on the surface, and let me just state it: …. The report itself is not considered by the Committee on Finance. It was not subject to amendment by the Committee on Finance. It is not subject to amendment now by the Senate.
… If there were matter within this report which was disagreed to by the Senator from Colorado or even by a majority of all Senators, there would be no way for us to change the report. I could not offer an amendment tonight to amend the committee report.
… [F]or any jurist, administrator, bureaucrat, tax practitioner, or others who might chance upon the written record of this proceeding, let me just make the point that this is not the law, it was not voted on, it is not subject to amendment, and we should discipline ourselves to the task of expressing congressional intent in the statute.
128 Cong.Rec. S8659 (daily ed. July 19, 1982).
Individual members cannot make a law by themselves, and neither can staffers or lobbyists who slip goodies into the committee reports which are not voted upon either by the committee or Congress as a whole. The President is right to acknowledge as much, but it shouldn’t take an executive order for Congress and the Executive alike to know that committee reports cannot legally bind the President to allocate funds for pork projects.
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