Even though President Bush complained about the 11,000 or so earmarks in the recently passed omnibus appropriations bill soon to become law, his lawyers have been searching for a legal opinion that allows the administration to virtually ignore thousands of these projects.
According to a letter released by the Congressional Research Service, the special projects earmarked by lawmakers in committee reports do not have the force of law because the line items do not actually appear in the legislation.
"It appears that the President possesses the necessary legal and constitutional authority to issue such an executive order" to ignore spending money on earmarks contained in report language, the CRS said in a letter released Saturday by Sen. Jim DeMint (R-S.C.), one of the most vocal anti-earmark crusaders in Congress.
Yet in the same breath, the non-partisan CRS essentially advises the president not to start such a war over earmarks with Congress. Traditionally, the executive branch has honored the language contained in committee reports.
"Practical political considerations as well as notions of comity between the legislative and executive branches, however, may serve to encourage compliance with these directives, despite the fact that as a matter of law they are not binding," the CRS says.
If Bush decides to start ignoring earmarks just because they are contained in non-binding report language, it would be another example of his administration's willingness to test the outer limits of executive power.
And in addition to starting an all-out war with Congress over constitutional spending authorities, it might just encourage lawmakers to put all those earmarks directly into the binding portions of the spending laws.