Stripping Congress of its Power of the Purse?

Via Althouse, I learn the following from Jake Tapper:

One rider [to the bill] – Section 2262 — de-funds certain White House adviser positions – or “czars.” The president in his signing statement declares that he will not abide by it.

“The President has well-established authority to supervise and oversee the executive branch, and to obtain advice in furtherance of this supervisory authority,” he wrote. “The President also has the prerogative to obtain advice that will assist him in carrying out his constitutional responsibilities, and do so not only from executive branch officials and employees outside the White House, but also from advisers within it. Legislative efforts that significantly impede the President’s ability to exercise his supervisory and coordinating authorities or to obtain the views of the appropriate senior advisers violate the separation of powers by undermining the President’s ability to exercise his constitutional responsibilities and take care that the laws be faithfully executed.”

Therefore, the president wrote, “the executive branch will construe section 2262 not to abrogate these Presidential prerogatives.”

This raises an extremely serious constitutional question: if Congress has refused to fund the “czars,” where exactly does President Obama get the authority and funding to pay them?

Remember Iran-Contra? The problem for the Reagan Administration there was that Congress banned the president from allocating money to the Contras. The Administration, quite illegally in my view, tried to get around that ban by using funds from arm sales to Iran to subvert the Congressional ban.

At least the Reagan Administration had the decency to do this secretly, knowing that it was acting unconstitutionally. Moreover, the Reagan folks at least were able to claim that they technically weren’t violating the Congressional ban, because they weren’t using Congressionally allocated funds, but the proceeds from arms sales.

The Obama Administration, by contrast, seems to be brazenly violating the Constitution. As I tell my constitutional law students, Congress’s ultimate power is the power of the purse. If Congress objects, for example, to military action engaged in by the president, it can simply refuse to allocate funds.

But the Obama Administration’s position seems to be that so long as it issues a signing statement refusing to abide by restrictions on funding that it deems to interfere with executive prerogatives, it can simply create the funding out of thin air. If there is no statutory funding for the czars, where exactly is the money coming from?

This is a very dangerous position for the Executive branch to take, and I hope even Obama partisans will recoil at this. Imagine if a future Republican president gets the U.S. involved in a deeply unpopular war. A Democratic Congress passes a military spending bill that specifically denies the president authority to spend any additional money on that war after a 60 day period to get the troops out. The president signs the bill, but with a signing statement that says that the bill’s ban on war funding violates the separation of powers and therefore “the executive branch will construe the relevant section not to abrogate these Presidential prerogatives.” Democrats, and anyone concerned with the Constitution for that matter, would be up in arms, and rightly so.

If Obama had such serious constitutional objections to Section 2262, he had only one constitutionally proper move to make, and that was to veto the bill.

UPDATE: A commenter points out that the signing statement doesn’t explicitly state that Obama would/will fund “czars” against a Congressional ban on such funding. I read “legislative efforts that significantly impede the President’s ability to exercise his supervisory and coordinating authorities … violate the separation of powers” to mean such, but I suppose it’s possible the administration wouldn’t take it that far. Apparently, also from the comments, the administration is claiming that the defunding language won’t have any practical impact, so I guess we won’t find out.

I would hope, however, for a clarifying comment from the White House that it is NOT asserting the authority to fund positions/actions when Congress has passed a bill signed by the president specifically banning such funding.

Also, I’m not asserting that funding a secret war and paying presidential advisors is on the same level of practical malfeasance. As a matter of simple policy, the former is obviously more important.

What I am arguing is that the principle that Obama seems to be asserting, that the president can allocate money from budgetary funds even when the law says he can’t, goes beyond the constitutional sins of the Reagan Administration. Under Reagan, when Congress refused to allow funding for the Contras from normal budgetary funds, Reagan didn’t say, “this violates the separation of powers, so I’m going to spend the money anyway.” Rather, he authorized a secret operation to use funds from arm sales to Iran to fund the Contras. That was itself, in my view, illegal and otherwise problematic, but it still paid fealty to the idea that the president cannot spend funds budgeted by Congress in a way that Congress has explicitly prohibited. Unless we get a contrary clarification from the Obama Administration, its signing statement threatens to become a precedent that erodes or even eviscerates that principle. The long-term endpoint would be that the president, once he ariculates separation of powers concerns, could simply take money that’s been allocated for one thing and spend it not just on something else, but on something else specifically prohibited by law. And I don’t want ANY president, Republican or Democrat, to have such authority.

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