Can the President Spend Money on Something Congress “Defunds”?

I’ve always thought that when it came to turf wars between the executive and legislature, Congress held the trump card of the “power of the purse.” But here’s what happened back in 2011 when Congress voted to defund several “czar” positions, positions that upset people on both sides of the aisle because they can be an end-run around the appointments clause (requiring a Senate vote) for high-level government officials:

On Friday night, Obama declared that he intends to ignore that part of the budget legislation, issuing a relatively rare “signing statement” after he inked the budget deal in which he argued that the legislative effort to eliminate those positions was an unconstitutional infringement on the executive branch.

“The President has well-established authority to supervise and oversee the executive branch, and to obtain advice in furtherance of this supervisory authority,” Obama wrote in a message to Congress. “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,” he added. “Therefore, the executive branch will construe [the law as to] not to abrogate these Presidential prerogatives.” Put aside that the president broke his campaign promise not to use signing statements to thwart Congress.

How can the executive branch spend money on, say, the climate czar in the face of a law specifically banning funds from being used for that purpose? Could President Reagan have avoided the Iran-Contra scandal (at least the part involving sending money from the arms sales to the Contras) simply by issuing a “signing statement” claiming that the Boland Amendment, banning aid to the Contras, interfered with executive authority and therefore he was free to ignore it?

UPDATE: It turns out that I blogged about this in 2011, raising the same concerns. I not only didn’t remember blogging this issue, I didn’t remember the issue itself arising, I came across it (again!) yesterday. Apologies for the repetition, but hopefully it’s new to many of you.

Obama just renamed the positions in question, which I suppose complied with the technical letter but not the spirit of the legislation. What’s more troubling is the broad principle the president apparently was asserting, that the question of whether a “senior advisor” is actually an official needing confirmation is solely within the discretion of the president, such Congress cannot canoot constitutionally defund the position in protest of what it sees as a workaround of the Senate’s advise and consent power.

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