What about defunding?

by Kagro X

I've been pretty unfortunate in having been proven correct in my prediction, made just over 14 months ago, that the Congressional subpoena power we were being promised was coming with a Democratic majority would be frontally attacked by the Bush "administration's" refusal to prosecute contempt charges.

Was it really that good of a prediction, though? Not really. After all, all I did was ask questions about the assumptions we were making regarding the subpoena power. Specifically, what were the mechanics of it? So I did a little Googling, and found this at what was, at the time, the Wikipedia page for contempt of Congress:

In order to be convicted of contempt of Congress, the congressional committee subject to the contempt first reports a resolution that the affected individual is guilty of contempt. This takes a majority vote of the committee. The full United States House of Representatives or United States Senate then must approve the resolution, which sends the matter to a federal attorney, who may call a grand jury to decide whether to indict the affected individual, and prosecute if the grand jury affirms an indictment.

Right away, I knew so long as the power to actually punish contempt rested in the hands of the executive, that this "administration" would not permit such charges to go forward. I suppose the only "prediction" involved was that at the time, nobody was talking about the rampant politicization of the US Attorneys' offices, and very few of us were talking about the hints they were dropping about defying judicial orders.

But the point is that all it really took to figure this out was asking myself what had to happen procedurally in order for this "subpoena power" thing to work. As soon as I did, the problems began to present themselves. From then on, it was just a waiting game -- waiting for the "administration" to demonstrate for more eyes what I originally suspected they would do.

So I thought it might pay to turn to another issue with the same sort of questions: the proposals to end the occupation of Iraq by "defunding" it. (To be clear, I do consider them separate issues, though the interests behind them can overlap. I have never been an Iraq impeacher, though I fully understand the motivations of those who are. My interest in seeing Bush impeached arose originally from the NSA spying revelations. So in no sense have I ever considered impeachment and defunding to be competing methods to the same ends.)

The idea most commonly suggested involves the Congress refusing at some future point to consider any new Iraq funding bills, the advantage being that there's no bill to veto, and it requires no affirmative votes -- just the commitment of the requisite number of House or Senate members not to support any effort to bring such a bill to the floor against the will of the leadership (assuming they were on board with the defunding idea).

There seems to be no doubt that this would work, as far as it goes. But how far does it go? That's where we need to be asking questions about the mechanics of funding Defense Department operations. And here's what I found when I did ask: a report by the Congressional Research Service entitled, "A Defense Budget Primer" (PDF)

What does it tell us? Well first, it reminds me that there's more to the budgetary process than Congressional authorization and appropriations. What we really need to find out about is what happens after the Congress says, in this case, that the "administration" is not authorized to spend money on this.

Page 41 seems informative. Under the section describing continuing appropriations resolutions (what Congress passes to keep the federal government operating in the event that the regular appropriations bills are delayed or otherwise left unpassed or unsigned), the report outlines the basics of what happens in the event that no continuing resolution is passed either, and the government is forced into a shutdown:

If Congress fails to pass regular appropriations acts by the beginning of the fiscal year on October 1, DOD (and other affected agencies) can be left with no money to pay personnel, fund daily operations, or execute new contracts. Standing law allows essential government activities, including national security-related functions, to continue even in the absence of funding, but non-essential programs may not continue, and day-to-day agency operations are disrupted.

Can anybody envision this "administration" declining to classify Iraq operations as national security-related?

Does that mean standing law would allow the occupation to continue even in the absence of funding? I don't know the answer to that. But dollars to donuts the "administration" has an answer they want you to believe is definitive, should it become necessary to spring it on us.

Page 39 has more of interest:

While the [appropriations] acts themselves do not specify funding by line item, committee reports on the defense appropriations acts do specify levels of funding at the line item level. Moreover, the military departments provide detailed budget information on programs in "justification" materials presented to Congress, and if appropriations reports do not specifically change the request, Congress assumes that DOD will carry out the programs as requested. In a strict legal sense nothing requires DOD to adhere either to the recommendations in congressional reports or to its own program budget proposals in spending money appropriated by Congress at the line item level. A failure to spend funds in accordance with the detailed justification materials and committee reports, however, could cause Congress to lose confidence in the requests and might result in reduced appropriations or in line item appropriations acts. As a result, DOD procedures require officials to act in accordance with congressional intent, as expressed in the committee reports. [Emphasis added.]

That's something, I guess. But I could see the Pentagon not having any tremendous fear that Democrats are going to cut Defense appropriations in the face of the Worldwide Terra Threat^TM. What do you think?

The third question I have is not directly addressed by the CRS report, and will require more research. But basically it comes down to this: While Congress has the "power of the purse," who actually holds the purse Congress has this power over? It seems to me that in a political atmosphere that supports both the "unitary executive" theory and assertions by the executive of their right to be free of all interference from all other branches of government in exercising the "inherent powers" of the "Commander in Chief," that the conditions are ripe for the assertion that since the Department of the Treasury is a part of that "unitary executive," then the president may well believe he has the "inherent power" to order disbursements in direct defiance of Congressional instructions to the contrary.

Again, I don't know "the answer," but does anyone have confidence anymore that George W. Bush knows how far is too far?

Comments

[Markinsanfran]

So we are well and truly fucked. Getting rid of this runaway president is therefore the only answer, but that will not work due to the supermajority required in the senate to convict. Splendid.

[Dismayed]

Kargo,

I have no doubt that Bush would continue to fund in any manner which he could argue no matter how thin the argument. He would direct the treasury to borrow from Chase-Manhattan to fund this war if push came to shove.

I have considered another ploy he may use. He may immediately suspend payment of military family saleries - then promply point the finger at congress saying. "they abandoned the troops without pay in a foreign land." He would do that to the troops, no doubt in my mind.

In any event, you can be sure that Chairman Bush and Vice Chairman Cheney would not simply shut down the Iraq branch office.

[Semanticleo]

Defunding also seems a thicket of procedural unknowns.

Are the Dems researching these options through competent
counsel? Should I have to ask that question?

[SiliconValleyBrit]

The last time a war got defunded, it was funded by selling missiles to Iran and begging money from the Saudis. Given that almost everyone involved in that caper is still serving in the current administration, I think the answer to the question is obvious.

[Rick]

These Bastards are not going to be reluctant to do whatever it takes to continue doing whatever they want. Hell, I'm not even convinced they will leave office on 1/20/09...voluntarily. Remember Iran-Contra? That was the Reagan/Bush41/Neo-Con response to the Bolland Amendment, the congressional act which prohibited any funding for the Contras? And the same crew is running this war, thanks to Daddy Bush's use of the traditional family tool - the Presidential Pardon. Defunding will be no more successful this time. Cheney/Bush and their congressional vassals are playing hardball...Democrats play slow-pitch softball. Suckers.

It's past time for the Democrats to get a spine...and grow a pair. Congressional collegiality is dead. The Republicans don't play nice....they go to war...by the Rove, Delay, Gingrich rules.

Desperate times require serious measures. The Democratic congressional leadership must return to the old rules...NOW.... Inherent Contempt... NOW....HJC Impeachment Inquiry...NOW....Republican filibusters must be of the original form...hold the floor 24/7...no exceptions...no respite...no August vacations. America can't tolerate this continuing Constitutional crisis. The American Republic is in jeopardy...act like it...defend it...rurthlessly....NOW!

[james k. sayre]

You've got fascism. You've got fascism. Some of the more conscious Americans are finally beginning to wake up to the fact that we have been living under a corporate oil-nazi dictatorship run by Cheney and Bush since 12 Dec. 2000. That was the day that 5 Supreme Republican idiots on our highest Court stopped the Presidential election vote count in Florida, on the absurd notion that to continue to count the votes would some interfere with the "rights" of the very sore loser, G. W. Bush. It would seem that American democracy might interfere with a Royal Bush dictatorship... And its been all down hill since…

[Ace Armstrong]

What if they gave a war and nobody came?

[lespool]

... I keep waiting for our US troops who are transferred or deployed in Iraq to proudly come out of the closet (--- irregardless of their sexuality).

[Taechan]

I seem to remember a recent(last coupla weeks) report that DOD can't account for BILLIONS, and the context was outside of the clustered mess in Iraq itself- I am wondering how much could be socked away that way- not that it makes a difference as SVB and Rick astutely note.

[Beppu50]

Kargo, Bush reminds me so very much of Adolph Hitler. First, he uses any device necessary to get his way; second, he thinks he is a brilliant military strategist and ignores the advice of his generals and third, he never admits being wrong nor allows the evidence of his failure to be presented. And, as Hitler did with the German troops at Stalingrad, Bush would stall and delay the removal of our troops from Iraq and ultimately abandon them. The one and ONLY answer is impeachment.

[Fernando]

Are you working contingency theories Kagro X? Congress has the upper hand here.

The executive branch is blocked from any privilege when they are criminal.

[Jodi]

Kagro X,

1. Oversight (Congressional Hearings),
2. Subpoenas (from Congress)
2. Perjury trials (after lying before Congress)
3. Stop the War
4. Good Governing (that from DemFromCT , God bless him.)
5. To not do what Bill Frist did and allow consensus legislation to be voted on.

all these were Buzz Words to enthuse the voters, the blogs, get money, etc.

And the Democrats did get two majorities, but little else.

I find it hard to believe that Senator Harry Reid wouldn't let the Senate vote on a compromise bill along the lines of the Iraq Study Committee report.
The Democrats complained so much about Frist's one sided Senate Rule, and here they are doing the same.

If the Democrats are willing to work with the Republicans they can press President Bush further into isolation. To him it looks like the Republicans are backing his plan because they refuse to go along with the Democrats all or nothing plan strategy. Bush feels like they are backing him.

[windansea]

Fight Over Documents May Favor Bush, Experts Say
Contempt Charge Precedents Cited in Firings Case

By Dan Eggen and Amy Goldstein
Washington Post Staff Writers
Saturday, July 21, 2007; Page A03

The Bush administration's vow this week to block contempt charges from Congress could prove to be a successful strategy for protecting White House documents about the multiple firings of U.S. attorneys, Democratic legal scholars and legislative aides said yesterday.

The experts cautioned that complaints by Democratic lawmakers about the administration's legal stance are undercut by a Justice Department legal opinion issued during the Clinton administration. It contended, as the Bush administration did this week, that Congress has no power to force a U.S. attorney to pursue contempt charges in cases in which a president has invoked executive privilege to withhold documents or testimony.

[Mimikatz]

A similar question came up the last time that Congress had to raise the debt ceiling. At that point, Congress raised the debt ceiling to $9 trillion. The national debt is now over $8,897,854,000,000. Unless Congress raised it further (which I have not been able to find), we are getting very close to that limit. This would mark the fifth time that the debt ceiling has had to be raised under Bush, and would mean that the federal debt has gone from $5,807 trillion when Clinton left office to over $9 billion, and would probably double while Bush is in office. Spending $12 billion a month on a worthless war will do that to you. Raisding the debt limit yet again is political treasure for the Dems, and is going to be a huge issue for some Republicans. It will get some added traction because it is basically Ron Paul's issue among the GOP.

Last time Congress didn't raise it before the limit was hit, Treasury Secretary Snow, like Robert Rubin before him, borrowed from pension funds for a time. But those eventually run out.

As a practical matter, the gov't is funded, in addition to tax receipts, by quarterly sales of T-notes in varying denominations (3-6-9-12-28-24 months, IIRC) and T-bills (2-5-10-30 year). The short-term notes especially have to be rolled over every time they come due, because we don't have the funds to actually pay down the debt. The next treasury refunding is in early August, then November, by which time we will surely be over the debt limit. The riskiere the papaer, the higher interest that buyers will demand.

Ultimately, we depend on the kindness of the buyers of Treasury bills and notes, many of whom are foreigners. The debt limit is thus one more thing to factor into the mix.

When I am not depressed, I see this playing out as a multi-level chess game, with Bush/Cheney in a strong position, but with waters of various kinds eroding the sand on which their tower sits. Each bit of defiance, on Iraq, on subpeonas, on spying etc costs him support because it ups the price which the GOP is going to pay for defending him. The fiscal issues are going to be a particularly bitter pill for them to swallow.

The House Dem leadership surely sees all this, and is factoring it into their strategy. Another metaphor might be a tightening noose.

Maybe Bush/Cheney will attack Iran as a diversion and nation-rallyer, but I think it will fail, and the costs to the country's fiscal position are as bad as the costs militarily and in terms of world opinion. So maybe the bond buyers and Wall Street will try to exercise some restraint.

In any event, these guys are truly playing chicken, with their own party, the Congress and the country, and fewer and fewer are going to stay with them for the whole ride off the cliff.

[Jodi]

Mimikatz

there is a certain freedom in nothing left to lose.

[Neil]

Shit stain, Your wallet is wounded, and buried alive, and only has 4 billion left, and this guy knows where it is, but won't talk, and just laughs about it, what do you want to do?

[Jodi]

Neil sometimes you are funny. But I know it is unintentional.

: )

[John Lopresti]

Kagro, you recall March 2007 the former secretary of defense invoked the 1861 law called Feed and Forage, basically a neo-Shermanian guarantee that after congress would tighten the purse-strings, for a grace period of one year following, the military would have an executive issue exemption allowing raids for subsistence without culpability before international tribunals. In our days, this is ameliorated somewhat as a mechanism for a guaranteed continuum of funding if congress were to start to micromanage accounts within the overall budget of the DoD. We know congress has tried in the past three decades to utilize their lineitem control in regard to military budget. I thought the argumentation about the always technologically difficult vertical takeoff and landing experimental aircraft budget a classic exercise in the ongoing tensions between the legislature and the executive illustrative of the broad requirement for comity in modern efficient government in the US. And surely the administration would be constrained to find more evasions if congress were to shut off the tap. It would be nice to find a CRS report on Feed and Forage, more expansive than OMB Watch's short paper there. 41USC11 is a mere 2 paragraphs, written in difficult times at the outset of the US North-South hostilities.