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 Others remain in place until they are modified or repealed.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 It continues to be legally binding until modified or repealed by our current President.
On March 11, President Obama publicly stated his own principles on earmarks, but he has not modified or or repealed E.O. 13457.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) […]