The Funding Power Belongs Exclusively To The Congress
Posted on Mon Jul 23, 2007 at 11:39:08 AM EST
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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.
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