The President, the Presentment Clause, and Earmarks

Conn Carroll / January 28, 2008

In addressing earmarks in the State of the Union, President Bush said, “I also asked you to stop slipping earmarks into committee reports that never even come to a vote. … [T]omorrow, I will issue an executive order that directs federal agencies to ignore any future earmark that is not voted on by the Congress. If these items are truly worth funding, the Congress should debate them in the open and hold a public vote.”

This is good policy, and it is a sign of how far we have drifted in interpreting laws that even the threat of an executive order on this count should be necessary. Committee reports simply are not law. They do not meet the requirements of bicameral passage and presentment to the President for signature found in Article I, Section 7 of the U.S. Constitution.

At best, committee reports reflect the views of the particular committee, not Congress as a whole. Indeed, it may be a bit much to assume that such reports have been adequately reviewed by members of the committee. Consider this famous exchange from the Senate floor concerning how familiar a committee chairman was with his own committee’s report: (more…)