February 5, 2008

We’ve all seen cartoon scenes similar to the following:

A character takes an object of frustration, smashes it on the ground, and jumps all over it.

That’s what a recent Presidential Executive Order does to the separation of powers.

I don’t know if this has been covered in any depth, but I haven’t seen any major dissection of it, so I thought I’d post.

On January 29, 2008, President Bush issued an innocuously-named Executive order. He seems to be a man of few talents, but he has raised the naming of bills with innocuous sounding names to high art. Like a master magician’s sleight-of-hand, this administration’s sleight-of-word is phenomenal.

Follow me below the fold to learn how he turned a reduction in spending into the end of Government oversight with nothing more than his magician’s pen…

First, here’s the executive order. Its name says it’s supposed to save us money. What it does, however, is save us from democracy.

It’s long, so feel free to scroll…

Protecting American Taxpayers From Government Spending on Wasteful Earmarks

By the authority vested in me as President by the Constitution and the laws of the United States of America, it is hereby ordered as follows:

Section 1. Policy. It is the policy of the Federal Government to be judicious in the expenditure of taxpayer dollars. To ensure the proper use of taxpayer funds that are appropriated for Government programs and purposes, it is necessary that the number and cost of earmarks be reduced, that their origin and purposes be transparent, and that they be included in the text of the bills voted upon by the Congress and presented to the President. For appropriations laws and other legislation enacted after the date of this order, executive agencies should not commit, obligate, or expend funds on the basis of earmarks included in any non-statutory source, including requests in reports of committees of the Congress or other congressional documents, or communications from or on behalf of Members of Congress, or any other non-statutory source, except when required by law or when an agency has itself determined a project, program, activity, grant, or other transaction to have merit under statutory criteria or other merit-based decisionmaking.

Sec. 2. Duties of Agency Heads. (a) With respect to all appropriations laws and other legislation enacted after the date of this order, the head of each agency shall 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.

(b) An agency shall not consider the views of a House, committee, Member, officer, or staff of the Congress with respect to commitments, obligations, or expenditures to carry out any earmark unless such views are in writing, to facilitate consideration in accordance with section 2(a)(ii) above. All written communications from the Congress, or a House, committee, Member, officer, or staff thereof, recommending that funds be committed, obligated, or expended on any earmark shall be made publicly available on the Internet by the receiving agency, not later than 30 days after receipt of such communication, unless otherwise specifically directed by the head of the agency, without delegation, after consultation with the Director of the Office of Management and Budget, to preserve appropriate confidentiality between the executive and legislative branches.

(c) Heads of agencies shall otherwise implement within their respective agencies the policy set forth in section 1 of this order, consistent with such instructions as the Director of the Office of Management and Budget may prescribe.

(d) The head of each agency shall upon request provide to the Director of the Office of Management and Budget information about earmarks and compliance with this order.

Sec. 3. Definitions. For purposes of this order:

(a) The term “agency” means an executive agency as defined in section 105 of title 5, United States Code, and the United States Postal Service and the Postal Regulatory Commission, but shall exclude the Government Accountability Office; and

(b) the term “earmark” means funds provided by the Congress for projects, programs, or grants where the purported congressional direction (whether in statutory text, report language, or other communication) circumvents otherwise applicable merit-based or competitive allocation processes, or specifies the location or recipient, or otherwise curtails the ability of the executive branch to manage its statutory and constitutional responsibilities pertaining to the funds allocation process.

Sec. 4. General Provisions. (a) Nothing in this order shall be construed to impair or otherwise affect:

(i) authority granted by law to an agency or the head thereof; or

(ii) functions of the Director of the Office of Management and Budget relating to budget, administrative, or legislative proposals.

(b) This order shall be implemented in a manner consistent with applicable law and subject to the availability of appropriations.

(c) This order is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity, by any party against the United States, its agencies, instrumentalities, or entities, its officers, employees, or agents, or any other person.

GEORGE W. BUSH

THE WHITE HOUSE,

January 29, 2008.

Let’s break this down:

…executive agencies should not commit, obligate, or expend funds on the basis of earmarks included in any non-statutory source, including requests in reports of committees of the Congress or other congressional documents, or communications from or on behalf of Members of Congress, or any other non-statutory source, except when required by law or when an agency has itself determined a project, program, activity, grant, or other transaction to have merit under statutory criteria or other merit-based decisionmaking.

Here the President tells all agencies (CIA, DOE, NASA, GSA, EPA, etc…) of the government that they may do their work ONLY if a LAW is passed pre-allocating the funds to do that work.

This would prevent any agency from doing almost any work that had not been conceived of prior to its need. For example, they would not be able to do new research or research on a new topic to help Congress make decisions about the potential efficacy of a proposed bill, unless Congress passed, and the President signed, a law okaying the funding for the research.

Heck, the way it’s worded, the Government Printing Office might not even be allowed to cover the cost of paper and printing expenses to print up pre-existing reports requested by Congress if the request for those reports hasn’t been made by passing a law, which of course must in turn be signed by the President – who might just not want Congress to have those reports.

It turns the President into a filter for any and all actions of any agency of government, enabling him to prevent Congress and others – including other agencies, and possibly the courts – from receiving any information from or requesting any actions by those agencies.

For example, If a Congressperson were to order the General Accounting Office to provide a report to the Senate Intelligence committee about the dispensation of funds provided to certain entities on a certain date, the GAO could be prevented from taking any action on that order if doing so required funds that are not already included in a law, or those funds don’t meet the, um, fungible, criterion of “having merit under … merit-based decisionmaking.”

Since it’s not defined, the definition of “merit” is anyone’s guess, but we can rest assured that this President has a definition in mind, and it’s unlikely to involve the agency cooperating with the request.

(b) An agency shall not consider the views of a House, committee, Member, officer, or staff of the Congress with respect to commitments, obligations, or expenditures to carry out any earmark unless such views are in writing, to facilitate consideration in accordance with section 2(a)(ii) above. All written communications from the Congress, or a House, committee, Member, officer, or staff thereof, recommending that funds be committed, obligated, or expended on any earmark shall be made publicly available on the Internet by the receiving agency, not later than 30 days after receipt of such communication, unless otherwise specifically directed by the head of the agency, without delegation, after consultation with the Director of the Office of Management and Budget, to preserve appropriate confidentiality between the executive and legislative branches.

This ensures that the President is made aware of any funding that he hasn’t signed off on. Essentially the President has just told all agencies that they may not keep any conversations with members of Congress or their staff confidential, if that conversation involves agency activities that would cost any money not already allocated in the budget.

Let’s take a look at a hypothetical situation under which this little tid-bit might come into play:

1) Say there’s a hypothetical corrupt executive office holder who might have treasonously outed an undercover operative as political payback, and that there are, perhaps 5 million hypothetical emails that were sent from the executive branch around the date in question, and that those emails are buried on hypothetical hard drives of servers deep in the bowels of a hypothetical IT department.

2) Congress wants copies of those hypothetical emails (which are required by actual statute to be retained), and needs the related agency to do forensic data recovery on the hypothetical hard drives.

3) In order to produce the hypothetical emails, the agency will need funds not already in their budget (forensic data recovery is expensive).

4) Congress says – we’ll give you the money, you do the work.

5) The agency hypothetically posts this fact publicly, as required by the new, hypothetical executive order.

6) Coincidentally, right after the hypothetical executive is tipped off by the posting that his hypothetical goose is about to be cooked, the hypothetical hard drives meet with some very powerful hypothetical magnets. Also coincidentally, the hypothetical hard drives are stored in a room where there’s a subsequent hypothetical fire. Sadly, all the data on those drives are hypothetically converted into a mass of molten metal and plastic.

This basic scenario (attempt to investigate, public tip-off, coincidental elimination of evidence) could play out, hypothetically, for any investigation of any kind, into any government activities (like war profiteering, or funneling nuclear technology to Turkey, or massive voter fraud, or … ).

Nah….

Of course, investigations aren’t the only casualties.

For example: If climate study isn’t specifically in NASA’s budget under statute, then NASA’s climate research has just been shut down. Poof! We know that the administration does not consider climate change research to have any merit. If this is the case, then the only way to restart it is to pass a law adding climate study to NASA’s charter, which should be really easy – until the second it lands on the President’s desk. Then it’s DOA. Ooops!

Note: I do not know if funding for climate study is included in NASA’s budget by statute, but the point isn’t to discuss NASA specifically, it’s to describe the type of scenario that may now unfold at myriad government agencies.

(b) the term “earmark” means funds provided by the Congress for projects, programs, or grants where the purported congressional direction (whether in statutory text, report language, or other communication) circumvents otherwise applicable merit-based or competitive allocation processes, or specifies the location or recipient, or otherwise curtails the ability of the executive branch to manage its statutory and constitutional responsibilities pertaining to the funds allocation process.

The executive branch HAS NO constitutional responsibilities pertaining to the funds allocation process. (I haven’t enough information to know if the President has any such statutory responsibilities.) Constitutionally, allocating funds is the Congress’ job.

The President’s SOLE responsibilities are commander of the armed forces; ensuring that the laws passed by Congress are executed AS WRITTEN (or to veto and request a rewrite); and to signing treaties IF they’re ratified by the Senate.

On the plus side:

(b) This order shall be implemented in a manner consistent with applicable law and subject to the availability of appropriations.

Methinks Congress should specifically forbid the appropriation of any funds in support of this executive order… Someone needs to find applicable law that can relegate this piece of [fill in the blank] to the junk heap of usurpation history.

Anyway, that’s my take on it.

ACTION:

Call, write, fax, or otherwise pester the bejeebers out of your Congressional delegation – tell them NOT to appropriate funds for the implementation of this executive order. Heck, tell them to specifically DENY funds for the implementation of this order.

Daily Archives: February 5, 2008

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The Day Bush Eliminated Congress