President Obama may not realize that the people who work for him are required to ignore hundreds (thousands?) of Congressional earmarks. The President has the ability to stop them from doing so. I hope that he will not.

Thanks go to former OMB General Counsel Jeff Rosen for pointing this out.

An Executive Order is a document signed by the President that establishes how he organizes and manages the Executive Branch. This power is derived from the first sentence of Article II, Section 1 of the Constitution: “The executive power shall be vested in a President of the United States of America.”

Some Executive Orders are time limited. Others remain in place until they are modified or repealed. Executive Orders span Presidential terms, so any Executive Order issued before President Obama’s term began that has not yet “sunset” is still legally binding upon the Executive Branch. President Obama can unilaterally modify or repeal such an E.O., but until he does, Executive Branch employees are legally required to continue implementing it.

On January 29, 2008, President Bush signed Executive Order 13457, “Protecting American Taxpayers From Government Spending on Wasteful Earmarks.” This E.O. has no sunset date. It continues to be legally binding until modified or repealed by our current President.

On March 11, President Obama publicly stated his own principles on earmarks, but he has not modified or or repealed E.O. 13457.

Let us therefore look at the current policy of the Executive Branch regarding implementation of earmarks. I have seen no public indication that anyone in the Executive Branch is following these requirements, or is even aware of them. Here is the key language from the Executive Order.

Section 1 – 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.

Section 2 implements this requirement by requiring “Agency Heads” (Cabinet Secretaries and others who run sections of the government) to do certain things. The language is easy to understand:

Section 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 … 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 …

(ii) agency decisions to … expend funds for any earmark are based on authorized, transparent, statutory criteria and merit-based decision making

(iii) no oral or written communications concerning earmarks shall super-sede statutory criteria, competitive awards, or merit-based decisionmaking.

This language is formally telling Executive Branch employees “If an earmark is not in the law, you must ignore it.” Use your merit-based decisionmaking process, even if the committee report that accompanies the bill says “we think you should spend money on project X,” and even if you get a phone call from a Member of Congress or Congressional staffer.

As a reminder, we define an “earmark” like this:

(T)he 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.

Let’s look at the report that accompanied the omnibus appropriations bill that President Obama signed into law on March 11. Here are four earmarks from the committee report.

The first is by Rep. Rosa DeLauro (D-CT). It’s $600,000 of “Byrne Discretionary Grants” from the Department to Justice support an Evidence Response Training Center at the Henry C. Lee Institute of Forensic Science in West Haven, CT. You can find it on page 268 here.


Here is another, by Rep. Howard Berman (D-CA). It’s $200,000 of Byrne Grants for a Tattoo Removal Violence Prevention Outreach Program at the Providence Holy Cross Foundation in Mission Hills, CA. You can find it on page 283 here.

earmark_tattoo We also have $1.791 M for Swine Odor and Manure Management Research at Ames, IA, sponsored by Sen. Tom Harkin (D-IA).you can find it on page 77 here.


To show that this is bipartisan behavior, here is one from Rep. Bill Shuster (R-PA) and Sen. Arlen Specter (R-PA) for $713,625 for the Juniata Hybrid Locomotive. You can find it on page 263 here.


Although all four of these earmarks are in the report language, they have different legal statuses. The first two are pure report language earmarks. There is nothing legally binding about them, and they are therefore subject to E.O. 13456. The third and fourth (swine odor research and the hybrid locomotive) are “incorporated by reference” into the law, so the Executive Branch would be breaking the law if they tried to ignore them. I will write about incorporation by reference in the future.

Now according to E.O. 13456, Attorney General Eric Holder, as the “Agency Head” for the Justice Department, has been directed to not allocate of Byrne Discretionary Grant funds based on the inclusion in the conference report of the earmarks for CSI: West Haven or Mission Hills tattoo removal. That does not mean that those institutions may not be funded. It means that if they are funded, DoJ must determine that they deserve funds “based on authorized, transparent, statutory criteria and merit-based decisionmaking.” And DOJ is not permitted to allow a phone call from Mrs. DeLauro or her staff, or from Mr. Berman or his staff, to supercede those criteria.

The process point is important in earmark reform. There are certain earmark recipients that could win funding in a competitive or merit-based decision making process. Relying on such a process ensures that funds will be allocated on merit rather than political power.

One of two scenarios can now play out. I will rank them in my order of preference:

  1. The Executive Order stays in place and unmodified. Budget Director Orszag issues an implementation memo parallel to the one issued by Director Nussle last October on the FY 09 continuing resolution. Throughout the Executive Branch, Agency employees are required to ignore earmarks that are not in the law.
  2. The President repeals or modifies E.O. 13456.

If the first scenario plays out, I will heartily congratulate the President for being as strong as he says he is on earmark reform.

If the second scenario plays out, then the President will have weakened the earmark rules put in place and implemented by his predecessor.

If the Executive Order is not modified and no apparent action is taking place to comply with it, then I believe Agency Inspector Generals have an obligation to make certain that the E.O. is being implemented within their respective agencies.

The President said on March 11,

I ran for President pledging to change the way business is done in Washington and build a government that works for the people by opening it up to the people.  We eliminated anonymous earmarks and created new measures of transparency in the process.

All the President has to do now to change earmarking for the better is make certain this Executive Order is enforced.