Professor Bainbridge...on law, politics, religion, culture & food

The Imperial Presidency

W has made a breathtaking assertion of Presidential power:

President Bush this week declared that he has the power to bypass four laws, including a prohibition against using federal funds to establish permanent US military bases in Iraq, that Congress passed as part of a new defense bill.

Bush made the assertion in a signing statement that he issued late Monday after signing the National Defense Authorization Act for 2008. In the signing statement, Bush asserted that four sections of the bill unconstitutionally infringe on his powers, and so the executive branch is not bound to obey them.

“Provisions of the act . . . purport to impose requirements that could inhibit the president’s ability to carry out his constitutional obligations to take care that the laws be faithfully executed, to protect national security, to supervise the executive branch, and to execute his authority as commander in chief,” Bush said. “The executive branch shall construe such provisions in a manner consistent with the constitutional authority of the President.”

I find myself in complete accord with Mark Kleiman:

The Constitution specifies (Art. 1, Sec. 9) that

No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law.

The Constitution does not, of course, give the President any authority to “protect national security.” That phrase does not occur in the text, although the Preamble says that one of the purposes of the government is to “Provide for the Common Defense.” Nor does it give him any authority to “supervise the Executive Branch,” as opposed to specific powers to appoint officials and require written opinions from them and a general duty to “take Care that the Laws be faithfully executed.”

If the President can spend funds to do something for which the Congress explicitly didn’t appropriate them, why does he need an appropriation in the first place? As Commander in Chief, why can’t he simply appropriate as much money as he sees fit for whatever “national security” purpose he sees fit?

I speak subject to the correction of experts in Constitutional law, but this, even more than the rest of Mr. Bush’s signing statements, strikes me as truly revolutionary, a raw grab for power that anyone who calls himself a conservative or a friend of limited government should reject with horror.

If Congress appropriated ex-number of dollars for defense, and then put a restriction in the conference report accompanying the appropriations bill, I don’t think that would be binding on the present.  Hence, for example, I think Bush is quite correct in asserting that he can properly refuse to spend allocated money on the earmarks about are contained in the legislative history of the bill.

As I understand the law, however, an express exercise of Congress’ power of the purse by statute trumps the president’s powers as commander in chief.  Indeed, as I wrote on my blog some time ago, if Congress pulled the plug on the Iraq war by denying spending, Bush would have to comply.

Indeed, the point was conceded by an august group of conservative legal scholars, which notably included John Yoo, who wrote in a March 20, 2007, letter to the Congressional leadership that:

We do not deny that Congress has the power to cut off all supplemental funding for the war, and that it has many other constitutional powers relating to war. ...

Congress may: (1) reduce the overall size of the standing army, navy, or air force; (2) end funding for ships, aircraft, or other weapons systems; (3) refuse to confirm military commanders who share the President’s plans for achieving victory; or (4) refuse to enact supplemental appropriations that would be used to fund extended engagements abroad.

The bill banning the use of funds for permanent bases in Iraq seems on all fours with #2. Surely Congress can end funding for a military base, if it can end funding for a weapons system.

Strikingly, the legal scholars specifically opined that:

The Commander-in-Chief power can no more be defined by Congress than the President can unilaterally define what the Congress’s spending power means (e.g., by issuing line item vetoes or impounding funds that are otherwise lawfully appropriated).

Isn’t the President trying to “unilaterally define what the Congress’s spending power means “?

It’s one more data point among many that George Bush is no conservative when it comes to notions of limited government.