by Kagro XI'll start with the good news. I found a very informative article in the Military Law Review, written in 1998 by a Colonel in the Army JAG Corps, that makes a pretty thorough study of the questions involved and concludes just what we all knew he must: that the president has no independent spending authority.
Colonel Richard D. Rosen is now retired from a 26-year military career, during which he served as Commandant (essentially the Dean) of the Army's JAG school and Deputy Legal Advisor to the Chairman of the Joint Chiefs of Staff. His paper, "Funding 'Non-Traditional' Military Operations: The Alluring Myth of a Presidential Power of the Purse," (PDF) is an excellent resource for reviewing the history, mechanics and outcomes from numerous examples in which military operations have created conflicting funding questions in the past. As such, I think it makes a similarly excellent resource in any effort to define the outer boundaries for the questions I have about defunding Iraq operations.
Colonel Rosen's own restatement of the good news, which for him was apparently bad news:
In preparing this article, I had hoped to identify a sound legal basis for advising military decision-makers to rely on an inherent presidential authority -- at least when a President finds an operation essential to national security. Much to my chagrin, however, neither the Constitution nor the nation's experience supports such a conclusion. Congress' power to appropriate -- while not plenary -- is certainly exclusive. This article examines arguments propounded in support of an independent presidential spending power, exploring whether they are sustainable in light of the Constitution's text, the intent of the Constitution's Founders, the body of custom developed under the Constitution, and the decisions of the courts. It concludes that these arguments are incorrect: the President does not possess an independent power of the purse.The bad news is in the next paragraph:
Finally, the article considers the President's options when no statutory funding authority exists to sustain an operation and concludes that his choices are four-fold: (1) the President can seek Congressional sanction for the operation; (2) the President can abandon the operation; (3) the President can direct the use of a reimbursable funding mechanism, or; (4) if national security interests are sufficiently critical, the President can spend the money in the absence of an appropriation and hope either that Congress ratifies the action or that he has adequate capital to withstand the resulting political maelstrom.Seems to me the critical inquiry, then, is into this part:
[T]he President can spend the money in the absence of an appropriation.Unless I read the defunding argument incorrectly, the linchpin of the whole strategy is the assumption that the President cannot do this.
Rosen identifies two distinct lines of argument for presidential latitude: (1) "that Congress may not unduly fetter the President's constitutional activities (usually foreign or military affairs) by imposing restrictions on appropriations or by refusing to appropriate the funds necessary to carry out the activities," and; (2) "the even bolder argument that, apart from anything Congress may or may not do to obstruct the President's constitutional activities, the President has an autonomous, constitutionally based authority to expend public moneys." Not all commentators, Rosen notes, are willing to expound both theories. And it is by no means clear that the Bush "administration" has yet made the second one.
I took note, however, of Rosen's next comment, in light of Bush's unique history with signing statements:
To the extent presidents assert the power to disregard unconstitutional laws, these arguments certainly serve as a predicate for presidential spending without Congressional sanction.This president certainly has asserted that power, and to an extent far in excess of any of his predecessors.
Ultimately, the success or failure of defunding rests on the president having a healthy respect for the rule of law. Though Congress has legal power over the purse, it is the "unitary executive" that is in possession of that purse. Has a president ever made unauthorized and illegal expenditures from the public Treasury on his own authority? Well, that depends on which part of the question you'd like to answer first. The answer is yes, if you're asking whether any president has ever simply ordered expenditures in the absence of an appropriation from Congress. And the answer is no if you're asking whether or not there really was any "authority" in the president for doing so. But the fact is, the money got spent, and the president's purposes were achieved.
Who did it? George Washington, in suppressing the Whiskey Rebellion. Thomas Jefferson in 1807, in responding to the capture of the American frigate Chesapeake by the British warship H.M.S. Leopard. Abraham Lincoln, at the outbreak of the Civil War. Calvin Coolidge in 1926, to provide relief from a hurricane to farmers in Florida. None claimed the expenditures were authorized in any way, shape or form. But all made them, on their own orders, with the Treasury's compliance.
It's these actions that led Col. Rosen to include that fourth option among the president's choices in the face of a refusal by Congress to fund his operations. There's more at work here than legality. There are issues of physical control. Hence, his conclusion on the subject:
[I]f a situation is sufficiently grave and an operation is essential to national security, the President has the raw, physical power -- but not the legal authority -- to spend public funds without congressional approval, after which he or she can either seek congressional approbation or attempt to weather the resulting political storm. To the president's immediate advantage is the fact that the only sure means of directly stopping such unconstitutional conduct is [well... you know]. Congress could, however, certainly make a President's life miserable through other means, such as denying requested legislation or appropriations, delaying confirmation of presidential appointments, and conducting public investigations into the President's actions.
While a lawyer's natural tendency is to turn to the judiciary in the event of such unconstitutional behavior, the courts represent little more than "speedbumps" to a President determined to ignore the law. Other than moral suasion, federal courts are powerless to stop a President intent on disregarding their judgments....
The political, not the judicial, is the ultimate check on a President intent on violating the Constitution; in the end, Congress must protect its own constitutional turf. Writing in dissent in Korematsu v. United States, Justice Jackson recognized the limits of judicial power:But I would not lead people to rely on this Court for a review that seems to me wholly delusive.... The chief restraint upon those who command the physical forces of the country, in the future as in the past, must be their responsibility to the political judgments of their contemporaries and to the moral judgments of history.