Good News/Bad News on Defunding

by Kagro X

I'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.

Comments

[Semanticleo]

The situation seems hopeless. What would the mechanics of Bush
spending without Congressional authorization be? He can mobilize
the National Guard and the Pentagon through War Powers, but that
military hardware has already been purchased and inventoried.

What is the conduit for new cash? GAO? What? Find that Agency and file injunctions, or am I being simplistic?

[ab initio]

Kagro

We know what Cheney is going to do if (and that is a very big if) the House decides to not bring forth an appropriations bill say to fund the OVP or the occupation. He's just going to inform Congress to go Cheney themselves!

These guys don't believe in the Constitution and they know the other side will always play by the rules and they know the corporate media and Murdoch will play along with them and they know the other side does not have the political will to take it to the mat; as a result they know they can get away if they fight by hitting below the belt.

The real question is what are the true patriots going to do? When its beyond any ambiguity (as it is now) that we have a rogue Administration.

[Mimikatz]

Please see my post from yesterday. Sometime in Sept-Oct it appears that the debt ceiling is going to have to be raised by Congress or the Treasury is going to lose the ability to sell debt instruments. The debt ceiling is $8.965 trillion, and the cumulative debt is $8.897,854 trillion and counting. Paulson, like Snow and Rubin before him, can borrow from pension funds for a bit, but if Congress doesn't raise the debt ceiling, we can't borrow.

Normally, this is a big minus for the party in power, because the other side uses it to show a lack of fiscal responsibility. The GOP had planned to blame the Dem Congress (tax and spend!) But now the debate it will be caught in the whole debate over Iraq funding and the budget as a whole. Who spent us into disaster? Who caused the debt limit to have to be raised five times? Who has nearly doubled the debt as it stood on the day that Bill Clinton left office?

This debate couldn't come at a worse time for someone who has just hit 25% in a recent poll, with 71% disapproval. You can't dig coal with bayonets, and we are neither can you issue Treasuty bills and notes.

[Mimikatz]

Sorry, that last sentence got a bit garbled. It is one thing to just spend the money and hope Congress later apporpriates it. But to sell debt instruments, there need to be buyers, and they tend to get a little concerned about the legalities. We may finally be dealing with people Bush/Cheney can't bully.

[Semanticleo]

That's GOOD news. The timing couldn't be better (Sept/Oct).

Is anyone else talking about the Debt Ceiling? Don't think so.

Hat-Tip, Kat.

[Semanticleo]

"We may finally be dealing with people Bush/Cheney can't bully."

You know they have to be gettin' nervous. They are stone-cold pragmatists. What's the US FICO score?

[Kagro X]

Yes, I read your post yesterday, and it's a really incredible piece of information. I couldn't really integrate it into this piece without completely losing control of it, though.

It's really a recipe for disaster, and I'm not sure what to make of it yet. Especially if you consider the possibility that foreign (and not necessarily friendly) governments may be willing to finance the continued sale of even questionable debt (at correspondingly higher interest rates, of course). If they do, will they be acting as "rational investors," or as malevolent agents?

[P J Evans]

re the US FICO score: are negative numbers possible?

[ab initio]

Mimikatz

That's a good discussion to have in the country - about the perilous nature of our finances and the mountains of debt we will bequeath our children and what choices we make about spending. Should we spend $12 billion/month for an occupation that's only bringing back body bags and maimed soldiers and destroyed completely Iraqi society and where we'll eventually have to leave?

My questions following Kagro's line of thinking is what will Paulson do if Cheney orders the Treasury to sell T-Bills and T-Notes despite the debt limit exceeded? And what will Bernanke do if Cheney orders the Fed to buy these Treasury debt instruments? Maybe Cheney makes a deal with the Chinese - we'll let you take over Taiwan just keep buying our worthless paper?

[Jodi]

My great worry is this war in Iraq which my family has participated in and where my brother still stands tall for his country.
Next is the many lives that have been lost because of a run amok President.

But there is also the lost treasure of this favored land to consider. I am an independent voter, but I always a conservative first. And we should not spend what we don't have except in the times of greatest need. For famine. For natural catastrophe. For great health disasters like the flu epidemic that DemFromCT prepares for. For war that is imposed upon us like by the AQ and the TAliban in Afghanistan.

Not for stupidity. Not for a juvenile President who wishes to play with toy soldiers.

Our boys, our men are NOT toy soldiers.

[John B.]

hey, a seemingly reasonable post from whom must not be named...

[BillE]

I think the Bushies will ignore both congress and the courts no matter what decisions are rendered. Andy Jackson blew off the Supremes and it took a very long time for the CW to embrace the notion of the basis for SC supremacy. It may seem like an unlikely thing even crackpot but with the existing EOs and control of the MSM does it seem possible they will allow an election next year? Their own personal jeopardy is at stake, not just ideology. Big Time will do anything including sinking the Maine again to prevent rolling back anything he has done or be held accountable for.

And the decider, he reminds me of the crackpot president in Escape from LA ( who was president for life and a born again religious nut. ) He would like nothing less than to be Cliff Robertson's real like character. Imagine Decider for Life ....

So spending money they aren't authorized to is nothing against untold dead and maimed. Debt ceiling is just an inconvenience. There are certain marks in economic statistics that fortell large inflationary actions. Only way for them to blow up the debt ceiling is thtough inflation (Print your own money) That could only be described as the beginning of the next great depression. Can they order the independent Federal Reserve to do that?

[timmm]

Col Rosen knows:

To the president's immediate advantage is the fact that the only sure means of directly stopping such unconstitutional conduct is [well... you know].

Does Reid know?

[Mimikatz]

It took a great deal of looking, but it now appears that the May Budget Resolution did contain an increase in the debt ceiling to $9.8 trillion, so the Dems have given away another of their chips in "return" for not being trashed by the GOP as big spenders. Great. It was very hard to find, as the media doesn't report such things. I finally found it at the OMB Watch site.

[scarecrow]

Don't forget Bush's statement that Congress has no right to tell him what to do; its job is only to appropriate the money to pay for it. He was not just making a statement about Congress' authority; he was asserting a duty on Congress' part to fund whatever he decides to do in a war. This isn't even close to what Justice Jackson had in mind. Once again, the only solution still stares us in the face, and it will not go away.

[Kagro X]

Mimikatz... d'oh! I mean, what do you even say to that?

[mainsailset]

Just to oversimplify here, as long as we allow Bush to comfortably rest his argument in the humanitarian, spread of democracy rhetoric with regards to the budget for Iraq we're allowing the argument to slip in the no-bid contracts...bear with me here...if the argument is turned on its head so that we instead put funding the no bid contracts first, our troops are there to give Blackwater infrastructure who in turn give the 160,000 contractors and their corp kings free reign, the budget $ take on a different
perspective. It's one thing for Dems to agree to a budget that talks up humanitarian needs but it's high time to walk that back to who's getting what and for what purpose.

[Sailmaker]

The debt ceiling is $9.8 trillion. The national debt is $8.9 trillion. Bush & Friends are spending about 1/2 a trillion a year more than they bring in. At that rate, with the ceiling as high as it is, there will be enough money to last through Jan, 20, 2009. Drat. We not only failed to defund, we actively funded the war, right up until we get the whole pile of poop placed in our laps. Congress can tell them how to spend the money, but who has faith in that? The definition of exit (with equipment or with out? with Iraqi facilitators/translators or not? fight to Kuwait or heliocopters?) is going to be very interesting.

[Dismayed]

Well, son of a biscuit. They raised the debt limit without a peep. Seems to me that last time that happened it was all over the news. Numerous stories all about it.

And we think the Dems really want to stop this war and create accountability why?

Mimi, you've got a whole post there. Needs to hit all the major blogs.

[greenhouse]

You say that the Dems are a bunch a dumbass!

[ab initio]

Mimikatz - you are a real sleuth.

Dems disarm and prostrate before the fight!

Now we know why they have a hard time fighting the meme of wimps. In many respects they are co-enablers of the trashing of the Constitution.

With no real limits let's see how far Cheney goes.

[marksb]

This reminds me of a Danish beer commercial I saw while living in Stockholm...
Two Danes, an America, and a Swede are shown in various phases of building a startup business...the Danes and the American are constantly coming up with new and exciting ideas, while the Swede is always asking, "Can we do that?" "Is that legal?" "Is that allowed?"

I think Dems have to get over asking "Can we DO that?", and Just Do It. Take a risk. In fact, risk everything, just like our founders did.
----
But seriously, one GOP plan (other than that martial law thingy) has got to be to start blaming the Democratic President and Congress pretty much around Feb 1 2009 for the spending obligations that will require new revenue (tax) and the spending to create a successful withdrawal of American forces and contractors from Iraq (and spend). So we get the Tax & Spend Democrats, the full blame for the resultant economic depression, and our legislative hands tied on spending to meet the climate and health care crisis. Unless we do something radical and powerful NOW that firmly fixes blame where it lies and creates a Nixon-like iconic failure in the public and media's mind.

[JohnJ]

Super point marksb:

The NYT today is saying that the latest pol shows rising support for the war from the latest lies coming out of the WH. A large part of the country makes it's opinions based on, at most, the first 4 or 5 words of any sound bite. If we don't start playing that the way the Repuglicants have done so masterfully, taking back our country will be short lived. We need to show the attention deficit class something they can actually understand and retain. Nixon's impending impeachment worked a bit; people still think the trouble was only about the Watergate break in. It's just too much info for the general, lethargic public to retain. Ask any random person about Iran-Contra and all you'll get is a blank stare.

I think this argues to doing something .... POLITICAL!

[marksb]

Ah, there's the poll.
Inching up indeed.
In a New York Times/CBS News poll conducted over the weekend, 42 percent of Americans said taking military action in Iraq was the right thing to do, while 51 percent said the United States should have stayed out of Iraq.

Support had been at all time low in May, when only 35 percent of Americans said the United States’ involvement in Iraq was the right thing and 61 percent said the United States should have stayed out.
Still in the dumpster, but something to look out for.

[Mimikatz]

I've had other things to do today so still haven't fully got the picture on the debt ceiling. The Budget Resolution passed in May definitely contains the higher debt limit, as this Hill article speculated it would, but it may be that this is directory language that has to pass in the Budget Reconciliation Bill. The budget process is explained here. Using a Reconciliation Bill (it reconciles specific agency budgets with the overall Budget Resolution, not Reps with Dems) precludes a Senate filibuster, which is one thing that makes it attractive to the majority. It would allow the debt ceiling to be raised officially as part of a massive Budget Reconciliation Bill without being subject to a filibuster. But the Dems may be in different territory by Sept-Oct-Nov, and may want anothger strategy, particularly if Bush desperately needs the debt ceiling raised.

So although it looks like there was an agreement, it may take one more actual vote to make it happen, in or out of the reconciliation bill (if there is one).

It seems once again a tug of war between the Dems' desire to look like they can govern in an abstract way and their (or our) desire to see something done about the war and Bush's usurpation of Congress' powers. Got to run again.

[Marky]

About impeachment: it occurs to me that if Conyers could get his 3 more Reps to start impeachment, he would be shrewd to start hearings during recess.
If a committee can be convened to examine evidence of impeachable offenses, doing so during the normal recess would show extra seriousness, in my opinion, but best of all, it would be a HUGE FU to Bush, whose vacation would be ruined. That factor shouldn't be underestimated, in my opinion. Seeing a pissy, dismissive Bush react to news of impeachment with ill grace would help it get to a good start.

[Semanticleo]

"it would be a HUGE FU to Bush,"

HUZZAH!, Marky. Pee in his Cheerios and watch him get
'resolute'. Nothing would piss him off more than missing
his ReaganPhotoOps cuttin' brush.

[...]

the wording is noticeably different for those 2 poll results.. 42 percent of Americans said taking military action was the right thing to do << verses >> 35 percent of Americans said the United States’ involvement in Iraq was the right thing << that is a very different question being asked by the pollister.. but, it being all politics - playing with words to get the desired results seems to be what so much of this admin is about... reminds me of the previous article on hiring that agency to sell the war.. it looks like they have already begun!

[Sara]

One quite easy thing Congress could do to limit the latitude Bush has in spending is to insert in Appropriations Bills restrictions on reprograming of funds within Departments and Agencies without going back to Congress for approval. This was a tactic used in the end days of Vietnam, it prevented Nixon and then Ford from taking savings in the DOD budget made by the return of US Units to their home base, and shifting them to the S. Vietnamese without Congressional approval. At that time we didn't forbid reprograming, rather we required Congressional approval -- And we discussed it as an effort to respect the appropriations process.

[big brother]

Mimi Katz.. the recess impeachment action prevents appointments and other not so good stuff that the Admin is planning from occurring. This is a War for Democracy of We the People versus corporate power grab from us. We have to asks Dems for 200% effort now. Appropriations bill restriction and Using a Reconciliation Bill for fight on the debt limit all seem like ideas from Fighting Dems! Great Work. Hillary's committe to investigate DOD spending may help too.

[Peter in St. Paul]

Perehaps the answer to defunding is funding. Why not ask Congress, the Administration and the American people to fully pay for this war now. Let's make support the troops a meaninful expression. If we aren't willing to pay for them, then the rest is lip service.

I think being confronted with asking the current generation to pay for this war instead of passing on the debt to our children and grandchildren would slow the surge for war.

[John Lopresti]

Reading the article by Rosen, Presidential Power of the Purse, again I am reminded of the recess concept. When the Brits blasted the ship Chesapeake, congress was in a recess from June thru October; so Jefferson bought arms to be on the safe side until Congress could discuss the threat. Rosen even quotes Laurence Tribe article in a law review 1988 in footnote 624 addressing the zenith-nadir paradigm in the Youngstown steel plant takeover attempt by Truman. My take at first skim is Rosen is looking for arguments to support the unitary executive; so he avoids instances like the Barbary War of 1802 which was a problem for Jefferson, but one in which a little executive bold action created a desired effect, and the pirate problem subsided somewhat when the young nation demonstrated its vigorous intentions to be independent even in far seas. I would read more Tribe, less Rosen; but it is worthwhile to have the Rosen article in the library now.

[Anon]

Kagro X,

Thanks for the article. I think you're misreading the JAG comment. Try it this way [Added]:

"the President can [a] spend the money in the absence of an appropriation; and [b] hope either that Congress ratifies the action or that he has adequate capital to withstand the resulting political maelstrom.

If Congress does not ratify the action, the President has illegally spent money. Nice job, but the JAG's article isn't protection, merely a sign of how despreate the PResident must be.

A President's "capital" to "survive" isnt' relevant: It's illegal. He can be prosecuted outside Congress. That the Senate has "enough" votes to block a conviction in now way blocks any prosecute from proseucting this sitting President outside Congress outside impeachment.

Also, Article 1 SEction 9 prohibits spending money on illegal things.

Other than that, good job.

[Rick B]

Considering the Presidents option to spend the funds without authorization, what would happen if Congress were to defund an office or a program, and attach an addition proviso that any funds from any other source spent for that purpose would likewise be immediately defunded from whatever source they were acquired? It seems to me that if any funds were automatically removed from the budget if they were intended to be spent on the defunded items, then they could not be spent and the programs they were to be taken from would also be defunded by those amounts.

Then add to that a provision that spending funds from any source, government nor non-government, would be felony theft from the government and automatically be a crime by the President and anyone in the chain of command from the President on down who authorized or enabled the spending in any way.

Then add that even in the event of a Pardon, such a person would immediately cease to be employed by the government (making receipt of any pay or benefits after that moment into theft from the government, immediately reimbursable with penalties) as of the moment they took the prohibited action and would be barred from any further employment by the government forever. That would eliminate their power to spend government money. This provision would also automatically make the President among others resign simply by attempting to violate the law. It's hard to see how such a resignation for committing a crime would not be considered completely voluntary.

Then, if any of the individuals are Pardoned, require them to testify fully before Congress and name the names of everyone they came into contact with in the process. The Pardon would remove any right to the Fifth Amendment. Anyone they testified about who had spent a paycheck afterwards or used health benefits would also have violated the law.

Obviously I am not a lawyer, but it seems that traps of that sort could be built into a defunding act to make it especially difficult to get around.

The legal expenses alone would severely injure the Republican Party, even if they got around the various restrictions.

[John Lopresti]

KX, There is an interesting way of looking at your funding equations topic, but it might take some more research. I was looking at the wierd Scotus decision in the Bowsher v Synar matter, which is available at Findlaw and Justicia but too old for archival at Scotus' traditional site, though, having taken place in 1986, being well advanced into the real decline in Reagan alertness. In his signing statement December 15, 1985 on Gramm-Rudman, that tacky bit of accounting legerdemain otherwise known as the balanced budget act, Reagan signs his advisor's rambling statements about how the CBO and Comptroller may be unconstitutionally assigned budget regulatory affairs oversight in the Gramm-Rudman implementation. Meese is leaving it up to the courts. Meanwhile Iran Contra is underway as a conduit of illicit arms trade and warmaking against congress' specific rulemaking, but congress as well already had the beginnings of an investigation started that early. There is a lot of caselaw since 1985-1986 in these loosely related matters, but I would expect the kind of shenanigans apparent in that signing statement as one avenue current administration people would try to evade congressional pursestring control of defunding legislation if enacted. What encouraged me to check this was yet another vantage sometimes held by Christopher Kelley in his presidential governance researches, which, because the former president is still alive and engaged in political activities Kelley treats fairly deferentially, namely, the setting of the Rosen article's launching. I suspect, but would have to investigate, that Rosen's work was to draw the military's lines in the sand on behalf of then c-in-c Clinton; the timing appears correct, about mid 1990s. It seems obvious Rosen worked a goodly amount of time developing his thorough report. It was a timeframe when Clinton had gone from Whitewater, to the Gingrich revolution, but had yet to face the personal attacks of the morality charges; and Yugoslavia was disintegrating but Kosovo was still looming on the horizon, and it was to take a sliver of Yankee ingenuity to devise a tale sufficiently enticing to Nato to have that entity take the nominal fore in Kosovo, and Clinton was seeking every possible way to commit troops, given the strident ad hominem tenor of congressional public relations in the mid 1990s directed at hamstringing whatever Clinton sought to do; in a way, the rough sort of politics practiced by Republicans then forced the executive to seek unitary ways to accomplish what more comity would have achieved through usual channels instead of having a president cornered by a raucous minority party newborn to majority rule House-style. So, my theory would proceed, Clinton asked the military to reason out their best rationales for the limits of c-in-c use of force without infringing upon constitutionally prerogatives reserved to Congress. I have yet to review the ABA summer 2006 study of signing statements, which is thorough in its methodical way, though, its being of committee-authorship, the ABA work tends to couch realizations in abstruse technical terms. At least, these are my first thoughts on the history context of what defunding Iraq would encompass.

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