The Funding Power Belongs Exclusively To The Congress

By Big Tent Democrat, Section War In Iraq
Posted on Mon Jul 23, 2007 at 11:39:08 AM EST
Tags: (all tags)

Share This: Digg!

KagroX finds a military law review article that states in no uncertain terms that the Congress is exclusive holder of the funding power. The article comprehensively reviews the history of Anglo-American law on the subject, including discusions of the British Parliament and the Monarchy, the Federalist Papers, the Constitution, Supreme Court decisions and custom. Not surprisingly, Kagro tries to shoot holes in the comprehensive argument, relying on the examples cited by the law review author of extraconstitutional emergency expenditures by Washington during the Whisky Rebellion and Lincoln during the Civil War. But the conclusion of the author is without ambiguity:

When, in some cases of urgent necessity, they ventured to act without law or against law, they boldly took a responsibility; they ran the risk of the law, sometimes the risk of their fortune in damages; then they hastened to acknowledge on the records of the legislature that they had done a thing, meritorious indeed, but illegal; and asked the legislature to cover them with an indemnity.

Washington and Lincoln were not availed of the opportunity to seek the funding PRIOR to acting. That was their principal argument for why they did what they did and the Congress subsequently ratified their actions. Here, not funding the Iraq Debacle will follow years of public debate and would be an express rejection of the President's requests. The situations are not comparable. More.

The law review article states in conclusion:

[T]he notion that the President is constitutionally empowered to spend public funds without congressional authorization is fantasy. . . . Nothing in the text, history, practice, or judicial construction of the Constitution leads to any other conclusion. To be sure, emergencies may arise that so threaten U.S. interests as to make immediate action-including spending without congressional authority-imperative. In such situations, the President may find it essential to direct spending without an appropriation made by law. But the President, and those who advise the President, should recognize that such expenditures contravene the clear and explicit terms of the appropriations clause and are patently unconstitutional. When emergencies necessitate spending without prior congressional approval, the President must be prepared to seek subsequent congressional ratification or face the political consequences of the unlawful conduct.

Impeachment proponents could want no better grounds. IF Bush were to act in the manner KagroX contemplates, and it is not at all clear HOW he would go about doing this (the expenditure of 10 billion dollars a month would have to come from somewhere. I simply do not see that Bush can even do it if he wants to), one would expect even the Washington Post editorial board would call for his removal.

What becomes increasingly clear is that impeachment proponents, if they believe Bush will act in the manner KagroX describes, should be urging defunding of the Iraq Debacle, as no other act would so galvanize the country to demand impeachment and removal from office of the President.

< Pelosi on Contempt of Congress, Impeachment and Ending the War | Weekly Standard 's Implicit Slam Of Slackers Bush/Cheney/Gingrich, Etc. >

Legal

Nothing on this site should be construed as legal advice. TalkLeft does not give legal advice.

TalkLeft is not responsible for and often disagrees with material posted in the comments section. Read at your own risk.

The Funding Power Belongs Exclusively To The Congress | 31 comments (31 topical)

Readers Must Login or Create an Account to Comment

Regarding (5.00 / 3) (#1)
by taylormattd on Mon Jul 23, 2007 at 11:49:22 AM EST

where the money will come from, this is the only thing I could get out of him.

Well (5.00 / 3) (#2)
by Big Tent Democrat on Mon Jul 23, 2007 at 11:53:27 AM EST

The reality is he can't. Kagro confuses what Bush may want to do with the practical realities of what he can do.

But the most remarkable part is there would be no stronger argument for impeachment than this.

Why won't impeachment proponents embrace this in order get removal from office?


Why won't impeachment proponents embrace this? (5.00 / 1) (#4)
by Edger on Mon Jul 23, 2007 at 11:58:34 AM EST

Exactly.

Kagro says there "It is my contention... that Bush may begin that direction".

So the surest way for Kagro to build support for impeachment is to first build support for defunding the occupation.

He seems though to be a little, shall we say, nervous about the obvious logical conclusion of his own arguments....


i have long supported defunding and (5.00 / 1) (#5)
by conchita on Mon Jul 23, 2007 at 12:20:12 PM EST

recognized the connection to impeachment. texdem too. i'll have to dig into his comments, but i believe this morning that he is saying the same thing - that the two are not mutually exclusive and that defunding (if ignored by bushco), like inherent contempt, is very likely a lead up to impeachment.

i haven't followed the "debate" between you and him closely, but this post seemed more like a concession than another point to be argued to me.


"Lead up to" (5.00 / 1) (#6)
by Big Tent Democrat on Mon Jul 23, 2007 at 12:38:37 PM EST

being the key phrase.

A partial concession but still insisting that Bush will fund "somehow."


fyi, re lead up (5.00 / 1) (#7)
by conchita on Mon Jul 23, 2007 at 12:50:14 PM EST

i just hung up with conyers' office. was about to send out an email blast re his "statement" that if three more rep co sponsored 333 he would go ahead impeachment, and thought it best to get a confirmation from his office first. sadly, his statements were misconstrued. howevever, the consolation prize is that statutory contempt for miers and bolton will be voted on in committee on wednesday. not sure when it will go to the house. they are not ruling out inherent contempt but have decided to use the less explosive legal remedy first and see if bush defies that.


I think (none / 0) (#8)
by Big Tent Democrat on Mon Jul 23, 2007 at 12:56:48 PM EST

that is smart because the only Bush statement on it was in the WaPo off the record. Probably a trial balloon. Let them make it official.


: i don't disagree. can see the rationale behind (none / 0) (#11)
by conchita on Mon Jul 23, 2007 at 01:48:40 PM EST

both methods. but i do hope it does not get tied up in the courts forever. i also wonder about the appropriateness of a political remedy as opposed to a judicial remedy. bottomline, i'm glad to see them act quickly and do something. i'll just have to hope it is the right thing and that well informed thinkers/strategists who see the law clearly are making the decisions.

Despite Bush position (none / 0) (#10)
by magster on Mon Jul 23, 2007 at 01:29:06 PM EST

The DC District Attorney General decides, and that guy's oath is to the Constitution no matter what Sara Taylor says.

TPM says this guy is too conflicted to make this decision (not that that would stop him). But, at any rate, the DAG can, in theory, overrule Bush based on their loyalty to their oath, and a "Saturday Night Massacre" reprise is then conceivable.


Thank you for calling conchita (none / 0) (#15)
by Militarytracy on Mon Jul 23, 2007 at 02:24:23 PM EST

;)


HUGE confusion between want to do (none / 0) (#16)
by Militarytracy on Mon Jul 23, 2007 at 02:30:30 PM EST

and practical realities.


Of course, I haven't even heard (5.00 / 1) (#3)
by andgarden on Mon Jul 23, 2007 at 11:57:23 AM EST

Kucinich--who wants to impeach (Cheney) and defund--suggest that the President would usurp the spending power. He understands, as you do, that the efficacy of defunding is predicated on the inability of the President to legally churn out C notes in his basement.

Everyone except for Kargo X and his supporters seems to recognize that this would work.

I thought that diary (none / 0) (#9)
by Stewieeeee on Mon Jul 23, 2007 at 01:28:08 PM EST

was pretty informative.

i'd like to know more specifics about lincoln and the run up to the civil war.

an ad hoc situation like the whiskey rebellion makes sense to me because it was an event linked to a very specific time and place. could washington and congress have seen it coming?

it's harder for me to imagine that nobody could have seen the civil war coming. that it just sort of surprised lincoln and there was never any chance for lincoln to run it by congress in the way of funding. my suspicion is that lincoln may have been smart enough to realize doing so would embolden opposition. to just not deal with congress until the situation had escalated and then justified the course of action described above. do it. build a case retro-actively.

what i think is important to most people who aren't constitutional scholars and great historians is that, yes:

there should be a method by which a president can fund a national security operation without an appropriations bill simply because national security will often not wait for congress to deliberate. as far as emergency sessions are concerned, yes, they exist, but not to provide a forum for debate, but just to get that base covered. a base that most people i think could be covered retro-actively. if the case for that military action is sound.
that there should be a method by which a president can be stopped from using no. 1 above to justify an ongoing war that no longer has (and never had) a legitimate national security interest.

the bush administration believes they are capable of anything. that if they thought they could do so, they'd just wait for congress to end their session, and go get the money somewhere claiming that a situation and strategy in iraq has emerged by which no. 1 above would apply.

congress: "you went and stole the money, now we will impeach."

bush admin: "the precedent exists by which a president can use monies to pursue a national security policy without an appropriations bill and then make the case retro-actively."

they may not make that case as far as the american public is concerned.

but it's obvious they don't care what the american public thinks anymore. at that point, all they will be concerned with is a legal defense for impeachment.

Lincoln was just barely (none / 0) (#12)
by Big Tent Democrat on Mon Jul 23, 2007 at 01:50:30 PM EST

in office.Literally a matter of weeks.

What would you have had him do?


Actually,,, (none / 0) (#17)
by desertswine on Mon Jul 23, 2007 at 02:35:05 PM EST

South Carolina had already seceded by the time Lincoln took office.

20 Dec 1860 - SC secedes
4 Mar 1861 - Lincoln inauguration


Yes (none / 0) (#19)
by Big Tent Democrat on Mon Jul 23, 2007 at 02:51:51 PM EST

But the attack on Ft. Sumter was in April 1861


: Yeah, (none / 0) (#20)
by desertswine on Mon Jul 23, 2007 at 02:53:44 PM EST

he didn't have a lot of options.

If that's the case (none / 0) (#21)
by Stewieeeee on Mon Jul 23, 2007 at 03:02:35 PM EST

Then maybe he could have waited for Congress to deliberate on the issue.

My point is that the run up to the civil war required an agenda, a policy, and played out over a time period that was not as immediate and as finite as, say, the whiskey rebellion.

I really don't know what battle it was that was funded without an appropriations bill. I really don't know what congress was deliberating over at that time.

Whatever it was, Lincoln would have to establish, presumably, that the course of action he took, the monies he used to fund that course of action, could not have waited.

But even though I don't know the particulars, I don't believe whatever that course of action was, it was not an AD HOC military mission, but the enactment of a policy that led to the entire civil war.


Ft. Sumner was under attack (none / 0) (#28)
by Big Tent Democrat on Mon Jul 23, 2007 at 04:42:46 PM EST

The Congress was scattered all over the country.

What are you talking about?


Wha????... (none / 0) (#30)
by desertswine on Mon Jul 23, 2007 at 05:31:50 PM EST

: in the precedents set (none / 0) (#31)
by scribe on Mon Jul 23, 2007 at 06:02:48 PM EST

by Washington (Whiskey Rebellion) and Lincoln (immediate procurement of something like $2 mil of stuff), Congress was out of session at the time the emergencies arose, and likely scattered out to their various districts. Whether it could have been called back in and done anything within the constitutionally-allotted time is a question now unanswerable.
Go see my comment (issue 2(d) therein, about halfway down) for a comparison of the factual complexes of those two precedents.

Well, a non-trivial percentage (none / 0) (#13)
by andgarden on Mon Jul 23, 2007 at 01:57:06 PM EST

of the membership of Congress had just walked out.


There is a method by which the (none / 0) (#18)
by Militarytracy on Mon Jul 23, 2007 at 02:37:23 PM EST

President can move quickly on national security issues. The War Powers Resolution allows a president to commit troops to combat for up to 90 days before he has to get statutory authorization or a declaration of war from Congress. He is still checked by Congress though after 90 days. It is an awesome power to hold too that a President can unleash what used to be America's military upon someone without any authorization for 90 days. 90 days is up on Iraq, the American people want out!


Not Going to Happen (none / 0) (#14)
by jarober on Mon Jul 23, 2007 at 02:21:09 PM EST

You can advocate for this all you want, but it won't happen. Why not?

Simple: Reid and Pelosi know that what would air continuously between the de-funding and the election would be "last helicoptor out of Baghdad" shots, along with cable news images of the increased slaughter. They know this, and they know that it would not help them win the next election.

What you haven't figured out yet is this: Reid and Pelosi don't care about ending the war. What they care about is winning in 2008. Which is why everything is political theater and unreal.

What they don't realize is even simpler: their base (people like you) hate this kind of thing. It looks like "do nothing" to independents, and Republican loathing grows greater by the second. This is why the approval rate for Congress is so low: they've managed to torque everyone off.

Four months ago, I assumed 2008 was the Democrats to lose. Now? I'm not so sure. The Republicans are not in a good position, but they are blessed with a politically suicidal opposition.

Ah ... (none / 0) (#22)
by chemoelectric on Mon Jul 23, 2007 at 03:04:59 PM EST

... what you are describing at the end is my kind of thinking: pushing Bush into either backing off or bringing the ire of the nation against him.

I think this is one of those situations where you need a painful surgery now so you don't wind up even worse off down the road. In this case, the 'surgery' is standing up to the playground bully and accepting any battles that may follow.

You guys are conflating issues again. (none / 0) (#23)
by scribe on Mon Jul 23, 2007 at 03:21:18 PM EST

Let's break this out. There are a number of different issues at play here and we need to tease them out from being entangled in each other - so we can think straight, present clearly, and act sensibly. Therefore:

Issue 1. What is the extent of the Congress' Spending power?
Short answer: All government activity must be paid for with money appropriated by Congress. It is a crime (violating the Anti-deficiency act)to expend money not appropriated by Congress. The President has no appropriating authority, but is stuck with the appopriations passed by Congress. If he refuses to sign or vetoes an appropriation, it either becomes law without his signature (if the pocket veto kicks in when he refuses) or there is no appropriation.

Issue 2. To what extent may the President act to do things requiring the expenditure of government money?
Short answer: Because subordinate Executive Branch officials are bound, by their oaths of office and law, to follow the lawful orders of the President, they will be required to (or, declining to say "that's an unlawful order" and risk being wrong, go along with) obey the President's orders and do whatever it is he tells them to do. This obedience would be without regard to whether the particular activity were appropriated for or not. But, I'd hazard that this might start breaking down after a month or so, when the Government can't buy consumables or can't meet payroll.

Issue 2(a). To what extent may the President act legally to do things requiring the expenditure of government money?
Short answer: See answer to #1 - he may only spend money and do things which are properly appropriated.

Issue 2(b). To what extent may the President act within the bounds of the constitution to do things requiring the expenditure of government money?
Short answer: Same as #1 and 2(a).

Issue 2(c). Can the President act outside the bounds of the Constitution and/or Laws to spend government money?
Short answer: Yes. And, as to the comment about being unable to crank out C-notes, remember that the Bureau of Engraving and Printing is part of Treasury, right down the Street from the Washington Monument, and they work for him. They can crank out C-notes until they run out of paper and ink. Of course, as the author of the law review article says:

Does the President have the authority to levy the taxes or incur the debt required to fulfill his "minimum" responsibilities?
Charles I and his judges believed the executive had such authority, but Charles was beheaded and his judges were impeached defending the
principle.

BTW, Charles I and his judges lost that debate when our Constitution was framed, too.

Issue 2(d). Are there any historical examples of Presidents acting outside the bounds of the Constitution and/or Laws to spend government money? If such exist, how do their particular factual situations compare to the present one, and what guidance, if any, can be drawn from any such precedents?
Short Answer: Yes. The Washington/Whiskey Rebellion and Lincoln/Civil War precedents.
These two present, effectively, the same factual complex as precedent:

(1) Open rebellion under way in the United States;
(2) Congress out of session and unable to be called back in time to meet the exigency;
(3) Presidential use of funds already on hand for the purpose of meeting the insurrection;
(4) immediate Presidential report to Congress, in full detail, upon Congress' return to session, as to the events, coupled with a request that Congress meet the expenditure with an appropriation;
(5) no Presidential claim that the conduct was lawful or constitutional.

It needs be noted that these events took place before Congress added criminal penalties to the Anti-Deficiency Act in 1905.

Watch for Bushie to try to shoehorn his behavior into the mold of those events, more likely through b'sing and spin than actual fact.

Contrariwise, in footnote 486, he notes President Hayes having vetoed an Army appropritation bill which included a prohibition on using troops to enforce the new Fifteenth Amendment and voting rights laws. Hayes vetoed the bill knowing full well it would cut off all money for the Army.

Issue 3. What is the course of action most likely to garner a two-thirds' majority in the Senate to convict Bush of charges brought through impeachment. Said another way: In an impeachment, how can Bush be charged - and with what offenses - that is the most likely to yield a two-thirds' majority in the Senate?
Short Answer: put him in a position where he must either sign a bill requiring him to return all US troops from Iraq (via the Spending Power and the anti-deficiency act) or commit a crime by leaving them there without funds. In the event he abandons his soldiers in the field without funds, he is to be impeached for that, too.

Issue 4. What is the course of action most likely to garner a two-thirds' majority in the Senate to convict Cheney of charges brought through impeachment. Said another way: In an impeachment, how can Cheney be charged - and with what offenses - that is the most likely to yield a two-thirds' majority in the Senate?
Short Answer: Deadeye Dick is an entirely different kettle of fish, though adopting my suggestions in sections 3-5 of my diary on the Presidential Accountability Act of 2007 and then tying him up when he violates the reorganization in that Act would do.
-
Note that, when you get into the law review article, down about footnote 125, John Yoo shows up (and then keeps showing up) for something he wrote about the original intent behind the war powers....

Um (none / 0) (#25)
by Big Tent Democrat on Mon Jul 23, 2007 at 03:29:54 PM EST

Have you read my posts? I like your comment but I fail to see where you say anything I have not the past few weeks and months.


BTD - I went and read the article (none / 0) (#26)
by scribe on Mon Jul 23, 2007 at 04:35:08 PM EST

all hundred-fifty or so pages of it (though I skimmed a lot of the original intent stuff, ratification debates, and so on), with an eye towards teasing out the historical examples and their factual similarities.

I started that earlier comment earlier in the thread, when there were about 8 comments.

The points I drove at were (A) the comparison of the Washington and Lincoln precedents to the current one and (B) a look at Charles I. Bushie, in his behavior, resembles no one so much as Charles I. He is, quite literally, trying to undo the last 400 years of Anglo-American history to create a Texas-WASP monarchy, fueled by oil, preserved by Gitmo.

I read your stuff. But your sudden conversion the other day on contempt told me you're not necessarily doing independent thinking but rather are getting fed talking points from someone inside and all of a sudden the wind changed. Not that such is a bad thing .... But, if you're just taking up a cudgel to start or continue a feud with KagroX, you need to get back on the objectives we should all be aimed at.

I'm trying to do independent thinking and find a way through this mess to a reaffirmance of the Constitution and the balance inherent in the it. And that includes three objectives:

(1) removal of the Bush-Cheney junta;
(2) destruction of the Republican party, as currently constructed;
(3) destruction of the careers in public service of the second, third, and fourth-level Bush appointees, lest we have to deal with the most ruthless survivors in 10, 20 or 30 years.

Peter Rodino was reputed to have said that he was proudest of having avoided impeachment of Nixon. And, in his running the process, Rodino insisted on a lot of bipartian comity and so on. It seems a lot of Dem Congresscritters are looking to Rodino's example positively. Avoid trouble - shiver.

I don't. I thought at the time that impeaching, convicting and removing Nixon was the right and only way to go, and that his resignation should have changed nothing. For Rodino's bipartisanship and care, we got Bush I running the Reagan WH (in part), Iran-Contra and secret wars in all sorts of places, support for Sadaam Hussein, school in the Reagan administration for all sorts of appointees (Roberts and Alito spring to mind) in government, and the Bush I and II administrations. And all the rest.

In other words, at least two generations of Rethugs selected through the sieve of "Nixon was right" and chosen for adherence to the party line, ruthlessness and amorality.

What we see today is Bush 41's "New World Order" - autocratic government by the few, perpetual war, and propaganda.

We need to, in the words of the phrase: "grasp the nettle". Sadly, there are a lot of Dems out there who do not comprehend that.

Frankly, I could care less about Bushie qua Bushie - he's a fool, an idiot and a liar and history will judge him harshly. I could even care less about Deadeye Dick. The point is, removing them is only removing one or two cells from the cancer which is inhabiting the body politic - not the most productive use of time. What concerns me more is that allowing them to continue will set a precedent for the future, which the new generation of thugs they're raising today will see fit to exploit. So in that regard, and as I've been saying for well over a year now (here and elsewhere) - if the conduct of Bush and Cheney is not sufficient grounds for impeachment, then there never will be(unless some future President gets caught being fell*ted under the Oval Office desk by a 21 y/o girl from Beverly Hills). And, for the sake of precedent, we must.

After all, seen from today's perspective, Rodino's backing off in the face of the Nixon resignation seems pretty, uh, stupid.

Don't you agree?


You obviously do NOT read me (none / 0) (#27)
by Big Tent Democrat on Mon Jul 23, 2007 at 04:40:44 PM EST

You write:

I read your stuff. But your sudden conversion the other day on contempt told me you're not necessarily doing independent thinking but rather are getting fed talking points from someone inside and all of a sudden the wind changed. Not that such is a bad thing ....

You think I am taking talking points on defunding?1?!?! That I am a sudden convert?

No offense, obviously you have not read me on it for the past 7 months if you think that.

That said, I liked your first comment and I think you get it and I agree completely with your comments.


: I said "sudden conversion on contempt" (none / 0) (#29)
by scribe on Mon Jul 23, 2007 at 04:58:35 PM EST

not on defunding. Don't be a Repug, tryng to change the subject.
And, I'm telling my reading of the situtation - whether it's accurate or not that I think you're getting the line from inside and the wind suddenly changed on contempt, I don't know. But, I read the situation to be that you are.

Milton Bradley Style 'Operation' (none / 0) (#24)
by squeaky on Mon Jul 23, 2007 at 03:23:37 PM EST

I think this is one of those situations where you need a painful surgery now

Yes, but going through the pain to no avail is senseless. Imagine waking up after the surgery, tumor intact and finding out that the surgeon had no knife and was sucking on the anesthesia by way of an extra hose. You get billed for the entire operation plus the surgeons fill of mind numbing gas but your insurance company balked at the bill cause it was elective surgery and not covered.