Earmarks Executive Order: Legal Issues

Earmarks Executive Order: Legal Issues
February 13, 2008
Thomas J. Nicola and T. J. Halstead
Legislative Attorneys
American Law Division



Earmarks Executive Order: Legal Issues
Summary
On January 29, 2008, President George W. Bush signed Executive Order
13,457, “Protecting American Taxpayers from Government Spending on Wasteful
Earmarks.” The order states that it is the policy of the federal government “to be
judicious in the expenditure of taxpayer dollars.” In order “[t]o ensure the proper use
of taxpayer funds,” the order provides that the number and cost of earmarks should
be reduced, that their origin and purposes should be transparent; and that they should
be included in the text of bills voted upon by Congress and presented to the
President. For appropriations laws and other legislation enacted after the date of the
order, it directs executive agencies not to commit, obligate, or expend funds on the
basis of earmarks included in any non-statutory source, including requests in reports
of committees of Congress or other congressional documents or communications on
behalf of Members of Congress, or any other non-statutory source, except when
required by law or when an agency itself has determined that a project, program,
grant, or other transaction has merit under statutory criteria or other merit-based
decision-making.
In the context of the order, an “earmark” is defined as any
funds provided by Congress for projects, programs, or grants where the purported
congressional direction (whether in statutory text, report language, or other
communication) circumvents otherwise applicable merit-based or competitive
allocation processes, or specifies the location or recipient, or otherwise curtails
the ability of the executive branch to manage its statutory and constitutional
responsibilities pertaining to the funds allocation process.
There is a long tradition of congressional inclusion of, and agency compliance
with, spending directives that are delineated in committee report language or in joint
explanatory statements issued by conference committees. If applied rigorously, the
provisions of Executive Order 13,457 could significantly alter this traditional
dynamic. Accordingly, this report provides an overview of the provisions of the
order; addresses questions that have arisen regarding both the President’s authority
to control executive branch activity in this context and the effect of non-statutory
congressional spending directives; and considers and evaluates potential
congressional responses to the executive order. The report will be updated as events
warrant.



Contents
In troduction ..................................................1
Presidential Authority to Issue Executive Orders and
Their Legal Effect.........................................3
Consistency Between Executive Order and Existing Case Law
Regarding Report Language.................................7
Congressional Response to Executive Order.........................9
Conclusion ..................................................11



Earmarks Executive Order: Legal Issues
Introduction
On January 29, 2008, President George W. Bush signed Executive Order
13,457, “Protecting American Taxpayers from Government Spending on Wasteful
Earmarks.”1 The order states that it is the policy of the federal government “to be
judicious in the expenditure of taxpayer dollars.” In order “[t]o ensure the proper use
of taxpayer funds,” the order provides that the number and cost of earmarks should
be reduced, that their origin and purposes should be transparent, and that they should
be included in the text of bills voted upon by Congress and presented to the
President.2 For appropriations laws and other legislation enacted after the date of the
order, it directs executive agencies not to commit, obligate, or expend funds on the
basis of earmarks included in any non-statutory source, including requests in reports
of committees of Congress or other congressional documents or communications on
behalf of Members of Congress, or any other non-statutory source, except when
required by law or when an agency itself has determined that a project, program,
grant, or other transaction has merit under statutory criteria or other merit-based
decision-making.3
Under the executive order, an “agency” is an executive agency defined in
section 105 of title 5 of the United States Code and includes the United States Postal
Service and the Postal Regulatory Commission, but excludes the Government
Accountability Office.4 This section states that an “executive agency” means a
“department, a government corporation, and an independent establishment.” An
“independent establishment” is defined in section 104 of title 5.5
An “earmark” in the executive order means
funds provided by Congress for projects, programs, or grants where the purported
congressional direction (whether in statutory text, report language, or other
communication) circumvents otherwise applicable merit-based or competitive
allocation processes, or specifies the location or recipient, or otherwise curtails


1 Exec. Order 13,457, 73 Fed. Reg. 6417 (February 1, 2008).
2 Id. at § 1.
3 Id. at § 1.
4 Id. at § 3.
5 This provision defines an “independent establishment” as “an establishment in the
executive branch (other than the United States Postal Service or the Postal Regulatory
Commission) which is not an Executive department, military department, Government
corporation, or part thereof, or part of an independent establishment,” and “the Government
Accountability Office.” 5 U.S.C. § 104(1)-(2).

the ability of the executive branch to manage its statutory and constitutional6
responsibilities pertaining to the funds allocation process.
The executive order identifies four duties of agency heads relating to earmarks.
With respect to all appropriations laws and other legislation enacted after the date of
the order, it directs the each agency head to take all necessary steps to ensure, first,
that
(1) agency decisions to commit, obligate, or expend funds for any earmark are
based on the text of laws, and are not based on language in any congressional
committee report, joint explanatory statement of a committee of conference,
statement of managers concerning a bill in Congress, or any other non-statutory
statement or indication of views of Congress or a House of Congress,
committee, Member, officer, or staff thereof;
(2) agency decisions to commit, obligate, or expend funds for any earmark are
based on authorized, transparent, statutory criteria and merit-based
decisionmaking, in the manner set forth in section II of Office of Management7
and Budget (OMB) Memorandum M-07-10, dated February 15, 2007, to the
extent consistent with applicable law; and
(3) no oral or written communications concerning earmarks shall supersede8
statutory criteria, competitive awards, or merit-based decisionmaking.
Second, the executive order provides that an agency shall not consider the views
of a House of Congress, committee, Member, officer, or staff of Congress with
respect to commitments, obligations, or expenditures to carry out any earmark unless
such views are in writing, to facilitate consideration in accordance with the
requirement to base spending decisions on authorized, transparent statutory criteria
and merit-based decision making to the extent consistent with applicable law. All
written communications from Congress, a House of Congress, committee, Member,
officer, or staff thereof, recommending that funds be committed, obligated, or
expended on any earmark shall be made publicly available on the Internet by the
receiving agency, not later than 30 days after such communication is received, unless
otherwise specifically directed by the agency head, without delegation, after
consulting with the OMB Director, to preserve appropriate confidentiality between
the executive and legislative branches.9
Third, it requires that agency heads otherwise shall implement within their
respective agencies the policy set forth in § 1 of the executive order consistent with
any instructions that the Director of OMB may prescribe.10


6 Id. at § 4.
7 OMB Memorandum M-07-10 is available at Memoranda at [http://www.whitehouse.
gov/omb] by number and date, February 15, 2007.
8 Exec. Order 13,457, § 2(a).
9 Id. at § 2(b).
10 Id. at § 2(c).

The fourth duty is to provide to the OMB Director any information about
earmarks and compliance with the executive order that the Director requests.11
Executive Order 13,457 has some general provisions which state that nothing
in it shall be construed to impair or otherwise affect: (a) authority granted by law to
an agency or agency head;12 or (b) functions of the OMB Director relating to budget,
administrative, or legislative proposals.13 Moreover, it provides that the order shall
be implemented in a manner consistent with applicable law and subject to the
availability of appropriations.14 Finally, the order is not intended to, and does not,
create any right or benefit, substantive or procedural, enforceable at law or in equity,
by any party against the United States, its agencies, instrumentalities, its officers,
employees, or agents, or any other person.15
In his State of the Union address on January 28, 2008, the President explained
the reason for issuing the executive order:
The people’s trust in their government is undermined by congressional earmarks
— special interest projects that are often stuck in at the last minute, without
discussion or debate. Last year I asked you to voluntarily cut the number of
earmarks and the cost of earmarks in half. I also asked you to stop slipping
earmarks into committee reports that never come to a vote. Unfortunately,
neither goal was met. So this time, if you send me an appropriations bill that
does not cut the number or cost of earmarks in half, I’ll send it back to you with
my veto. And tomorrow, I will issue an executive order that directs federal
agencies to ignore any future earmark that is not voted on by Congress. If these
items are truly worth funding, Congress should debate them in the open and hold
a public vote.16
Presidential Authority to Issue Executive Orders
and Their Legal Effect
There is a long tradition of congressional inclusion of, and agency compliance
with, spending directives that are delineated in committee report language or in joint
explanatory statements issued by conference committees. If applied rigorously, the
provisions of Executive Order 13,457 could significantly alter this traditional
dynamic, raising questions regarding the President’s authority to control executive
branch activity in this context via executive order.
The President’s ability to issue and implement executive orders may stem from
both constitutional and statutory authority. In the constitutional context, presidential


11 Id. at § 2(d).
12 Id. at § 4(a)(I).
13 Id. at § 4(a)(ii).
14 Id. at § 4(b).
15 Id. at § 4(c).
16 The State of the Union transcript is available at [http://www.whitehouse.gov], see Newsm,
by date, January 28, 2008.

power to issue such orders has been derived from Article II, which states that “the
executive power shall be vested in a President of the United States,” that “the
President shall be Commander in Chief of the Army and Navy of the United States,”
and that the President “shall take care that the laws be faithfully executed.”17 The
President’s power to issue executive orders and proclamations may also derive from
express or implied statutory authority.18 Irrespective of the nature of the authority to
issue executive orders and proclamations, these instruments have been employed by
every President since the inception of the Republic, and Presidents have not hesitated
to wield this power over a wide range of often controversial subjects.19 Furthermore,
if issued under a valid claim of authority and published, these instruments may have
the force and effect of law, requiring courts to take judicial notice of their existence.20
While these principles establish the authority of the President to issue executive
orders generally, the question of whether a particular order comports with
constitutional and statutory provisions requires a more nuanced analysis. The
framework for analyzing the validity of an executive order was delineated in
Youngstown Sheet & Tube Co. v. Sawyer.21 There, the Supreme Court dealt with
President Truman’s executive order directing the seizure of steel mills, which was
issued in an effort to avert the effects of a workers’ strike during the Korean War.
Invalidating this action, the majority held that under the Constitution, “the
President’s power to see that laws are faithfully executed refutes the idea that he is
to be a lawmaker.”22 Specifically, Justice Black maintained that Presidential authority
to issue such an executive order “must stem either from an act of Congress or from
the Constitution itself.”23 Applying this reasoning, Justice Black’s opinion for the
Court determined that as no statute or Constitutional provision authorized such
presidential action, the seizure order was in essence a legislative act. The Court
further noted that Congress had rejected seizure as a means to settle labor disputes
during consideration of the Taft-Hartley Act. Given this characterization, the Court
deemed the executive order to be an unconstitutional violation of the separation of
powers doctrine, explaining “the founders of this Nation entrusted the lawmaking
power to the Congress alone in both good and bad times.”24
While Justice Black’s majority opinion in Youngstown seems to refute the
notion that the President possesses implied constitutional powers, there were five
concurrences in the case, four of which maintained that implied presidential authority


17 U.S. Const., Art. II, §1, 2, & 3.
18 See Youngstown Sheet and Tube Co. v. Sawyer, 343 U.S. 579 (1952).
19 See CRS Report RS20846, Executive Orders: Issuance and Revocation, by T. J. Halstead
(2001).
20 Armstrong v. United States, 80 U.S. 154 (1871); see also, Farkas v. Texas Instrument,
Inc., 372 F.2d 629 (5th Cir. 1967); Farmer v. Philadelphia Electric Co., 329 F.2d 3 (3rd Cir.

1964); Jenkins v. Collard, 145 U.S. 546, 560-61 (1893).


21 343 U.S. 579 (1952).
22 Id. at 587.
23 Id. at 585.
24 Id. at 586-589.

adheres in certain contexts.25 Of these concurrences, Justice Jackson’s has proven to
be the most influential, even surpassing the impact of Justice Black’s majority
opinion. Specifically, Justice Jackson established a tri-partite scheme for analyzing
the validity of presidential actions in relation to constitutional and congressional
authority.26
Justice Jackson’s first category focuses on whether the President has acted
according to an express or implied grant of congressional authority. If so, according
to Jackson, presidential “authority is at its maximum, for it includes all that he
possesses in his own right plus all that Congress can delegate,” and such action is
“supported by the strongest of presumptions and the widest latitude of judicial
interpretation.”27 Secondly, Justice Jackson maintained that, in situations where
Congress has neither granted nor denied authority to the President, the President acts
in reliance only “upon his own independent powers, but there is a zone of twilight
in which he and Congress may have concurrent authority, or in which its distribution
is uncertain.”28 In the third and final category, Justice Jackson stated that in instances
where presidential action is “incompatible with the express or implied will of
Congress,” the power of the President is at its minimum, and any such action may be
supported pursuant only the President’s “own constitutional powers minus any
constitutional powers of Congress over the matter.”29 In such a circumstance,
presidential action must rest upon an exclusive power, and the Courts can uphold the
measure “only by disabling the Congress from acting upon the subject.”30
With regard to President Truman’s order, Justice Jackson determined that
analysis under the first category was inappropriate, due to the fact that seizure of steel
mills had not been authorized by Congress, either implicitly or explicitly. Justice
Jackson also determined that the second category was “clearly eliminated,” in that
Congress had addressed the issue of seizure, through statutory policies conflicting
with the President’s actions.31 Employing the third category, Justice Jackson noted
that President Truman’s actions could only be sustained by determining that the
seizure was “within his domain and beyond control by Congress.”32 Justice Jackson
concluded that such matters were not outside the scope of congressional power,
reinforcing his declaration that permitting the President to exercise such “conclusive


25 Id. at 659 (Burton, J., concurring); Id. at 661 (Clark, J., concurring in result only); Id. at

610 (Frankfurter, J., concurring); Id. at 635 (Jackson, J., concurring).


26 Id. at 635-638.
27 Id. at 635, 637.
28 Id. at 637.
29 Id. at 637.
30 Id. at 637-638.
31 Id. at 638-639.
32 Id. at 640.

and preclusive” power would endanger “the equilibrium established by our
constitutional system.”33
Applying these principles to the case at hand, there does not appear to be any
discernible basis upon which it could be asserted that Executive Order 13,457 runs
contrary to constitutional or statutory precepts. While the potential centralization of
control over agency treatment of non-statutory earmarks raises significant policy
issues, E.O. 13,457 appears to fall within the accepted parameters of presidential
authority in the executive order context, particularly when viewed in relation to other
executive orders that have asserted similar and arguably more expansive
centralization authority.
For instance, in 1981, President Reagan issued Executive Order 12,291,
ushering in a new era of presidential control over agency rulemaking activity.34 E.O.
12,291 required cost-benefit analyses and established a centralized review procedure
for all agency regulations. E.O. 12,291 delegated responsibility for this clearance
requirement to the Office of Information and Regulatory Affairs, which had recently
been created within the Office of Management and Budget as part of the Paperwork
Reduction Act of 1980. The impact of E.O. 12,291 on agency regulatory activities
was immediate and substantial, generating controversy and criticism. Opponents of
the order asserted that review thereunder was distinctly anti-regulatory and
constituted an unconstitutional transfer of authority from the executive agencies.35
Despite these concerns, courts considering OMB involvement in agency rulemaking
under the executive order did not address the constitutionality of such review,36 and
Congress did not act to countermand the executive order. The review scheme
established in the Reagan Administration has been employed and modified by
subsequent Administrations in a manner that conveys a conception of presidential
authority consonant with that of the Reagan order.37 However, arguments against the
constitutionality of these executive orders have largely diminished, to the point that


33 Id. at 638, 640-645.
34 Exec. Order 12,291, 46 Fed. Reg. 13,193 (February 17, 1981).
35 For a thorough overview of the criticisms leveled at the Reagan order, see Richard H.
Pildes, Cass R. Sunstein, “Reinventing the Regulatory State,” 62 U. Chi. L. Rev. 1, 4-6
(1995); Elena Kagan, “Presidential Administration,” n.10, supra, at 2279-80. But see, Frank
B. Cross, “Executive Orders 12,2291 and 12,498: A Test Case in Presidential Control of
Executive Agencies,” 4 J.L & Pol. 483 (1988) (supporting constitutionality and utility of
review under the order).
36 In Public Citizen Health Research Group v. Tyson, 796 F.2d 1479 (D.C. Cir. 1986), for
instance, the court addressed the validity of a rule promulgated by OSHA governing
ethylene oixide, including a challenge based on the argument that a critical portion of the
proposed rule had been deleted based on a command from OMB. While stating that “OMB’s
participation in the rulemaking presents difficult constitutional questions concerning the
executive’s proper role in administrative proceedings and the appropriate scope of delegated
power from Congress to certain executive agencies,” the court nonetheless found that it had
“no occasion to reach the difficult constitutional questions presented by OMB’s
participation.” Id. at 1507.
37 See CRS Report RL32855, Presidential Review of Agency Rulemaking, by T. J. Halstead
(2005).

presidential review of agency rulemaking has become a widely used and increasingly
accepted mechanism by which a President can exert significant and sometimes
determinative authority over the agency rulemaking process.38
The implicit acquiescence of Congress and the courts regarding the
constitutionality of 12,291 and its successors indicates that a President may
successfully utilize executive orders to exert significant, centralized control over
executive branch activity that has traditionally been exercised at the departmental or
agency level. This rationale seems fully applicable to Executive Order 13,457,
particularly in light of the fact that non-statutory earmarks are not legally binding on
executive branch agencies.
Consistency Between Executive Order and Existing
Case Law Regarding Report Language
Art. I, sec. 9, cl. 7 of the Constitution states that, “No money shall be drawn
from the treasury, but in consequence of appropriations made by law.” With respect
to all appropriations laws and other legislation enacted after the date of the order, the
executive order directs each agency head to take all necessary steps to ensure that
agency spending decisions are based on the text of laws and not on language in
legislative history documents or other congressional communications to agencies and
otherwise to implement the policy that earmarks should be included in the text of
bills voted upon by Congress and presented to the President.
The Supreme Court in Lincoln v. Vigil39 unanimously acknowledged a premise
upon which the executive order appears to be based: Language in legislative history
documents does not legally bind agencies unless it is enacted in the text of a statute.
[A] fundamental principle of appropriations law is that where “Congress merely
appropriates lump sum amounts without statutorily restricting what can be done
with those funds, a clear inference arises that it does not intend to impose legally
binding restrictions, and indicia in committee reports and other legislative history
as to how funds should or are expected to be spent do not establish any legal
requirements on” the agency. LTV Aerospace Corp., 55 Comp. Gen. 307, 309
(1975); cf., American Hospital Assn. v. NLRB, 499 U.S. 606, 616 (1991)
(statements in committee reports do not have the force of law); TVA v. Hill, 437
U.S. 153, 191 (1978) (“Expressions of committees dealing with requests for
appropriations cannot be equated with statutes enacted by Congress.”) Put
another way, a lump sum appropriation reflects a congressional recognition that
an agency must be allowed “flexibility to shift ... funds within a particular ...
appropriation account so that” the agency “can make necessary adjustments for
‘unforeseen developments’ and ‘changing requirements.’” LTV Aerospace Corp.,
supra, at 318 (citation omitted.)” ... Of course, an agency is not free simply to
disregard statutory responsibilities: Congress may always circumscribe agency


38 Id.
39 508 U.S. 182 (1993).

discretion to allocate resources by putting restrictions in the operative statutes40
(though not, as we have seen, just in the legislative history).
A year later in Shannon v, United States,41 the Court emphasized this point
when it observed that, “We are not aware of any case ... in which we have given
authoritative weight to a single passage of legislative history that is in no way
anchored in the text of a statute.... We agree with the D.C. Circuit that “Courts have
no authority to enforce [a] principl[e] gleaned solely from legislative history that has
no statutory reference point.”42
The Court in the Lincoln case quoted from LTV Aerospace Corp., a decision of
the Comptroller General, who heads the Government Accountability Office (GAO),
formerly the General Accounting Office. In that decision, the Comptroller General
said that
with respect to appropriations, there is a clear distinction to be made between the
imposition of statutory restrictions or conditions which are intended to be legally
binding and the technique of specifying restrictions or conditions in a
nonstatutory context.
In this regard, Congress has recognized that in most instances it is desirable
to maintain executive flexibility to shift around funds within a particular lump
sum so that agencies can make necessary adjustments.... This is not to say that
Congress does not expect that funds will be spent in accordance with budget
estimates or in accordance with restrictions detailed in committee reports.
However, in order to preserve spending flexibility, it may choose not to impose
those particular restrictions as a matter of law, but rather to leave it to the
agencies to “keep faith” with the Congress.... There are practical reasons why
agencies can be expected to comply with these congressional expectations....
On the other hand, when Congress does not intend to permit agency
flexibility, but intends to impose a legally binding restriction on an agency’s use43
of funds, it does so by means of explicit statutory language.
The Comptroller General added that
as a general proposition, there is a distinction to be made between utilizing
legislative history for the purpose of illuminating underlying language and
resorting to that history for the purpose of writing into law that which is not
there....
An accommodation has developed between the Congress and the executive
branch resulting in the appropriation process flexibility discussed above. Funds
are most often appropriated in lump sums on the basis of mutual legislative and


40 508 U.S. at 192-193.
41 512 U.S. 573 (1994).
42 512 U.S. at 583, quoting from International Brotherhood of Electrical Workers v. National
Labor Relations Board, 814 F.2d 697, 712 (D.C.Cir.1987)
43 LTV Aerospace Corp., 55 Comp. Gen. 307, 325 (1975) (footnote omitted).

executive understandings as to their use and derive from agency budget
estimates and testimony and expressions of intent in committee reports. The
understandings reached generally are not engrafted upon the appropriation
provisions enacted. To establish as a matter of law specific restrictions
covering the detailed and complete basis upon which appropriated funds are
understood to be provided would, as a practical matter, severely limit the44
capability of agencies to accommodate changing conditions.
Both the Supreme Court and the Comptroller General have indicated the
consequence for an agency if it disregards directives in legislative history documents.
The Court in the Lincoln case said that, “And, of course, we hardly need to note that
an agency’s decision to ignore congressional expectations may expose it to grave
political consequences.”45 Referring to a passage which indicated that Congress
sometimes places restrictions in legislative history documents rather than in statutory
text to permit agencies to accommodate changing conditions when allocating funds,
the Comptroller General stated that, “This does not mean agencies are free to ignore
clearly expressed legislative history applicable to the use of appropriated funds. They
ignore such expressions of intent at the peril of strained relations with the Congress.
The executive branch ... has a practical duty to abide by such expressions. This duty,
however, must be understood to fall short of a statutory requirement giving rise to a
legal infraction where there is a failure to carry out that duty.”46
Congressional Response to Executive Order
The above sections have reviewed the elements of Executive Order 13,457, the
legal basis for the President to issue executive orders and their legal effect, and the
consistency between the substance of the order and case law which acknowledges
that earmarks in legislative history documents but not in statutory text do not legally
bind agencies to fund them. A primary purpose of the executive order appears to be
to limit the discretion of individual executive agency heads to fund earmarks that
appear only in legislative history documents and other nonstatutory sources; it
expresses a uniform policy throughout the executive branch that they generally
should not be funded and that agency heads should base funding decisions on
“authorized, transparent, statutory criteria and merit-based decision-making.”
Congress has a number of options to respond to this executive order. It can
choose to operate within the new legal milieu that it appears to formalize or take
steps to countermand it. One option to operate within it, of course, would be for
Congress expressly to include each earmark in the text of a statute and thereby place
it beyond the agency decision-making process that the executive order requires for
nonstatutory ones. To become law, each earmark in a bill would have to pass the
House and Senate and be presented to the President and, if the bill were vetoed, pass
by two-thirds of each House to override a presidential veto. Another form of express
incorporation would be for Congress to include language in a statute to the effect


44 Id. at 325-326 (Emphasis supplied.).
45 508 U.S. at 193.
46 55 Comp. Gen. at 326.

that, “Earmarks in a joint explanatory statement in House Report No. 110-XXX shall
be effective as if enacted into law.”
Another option would be for Congress to incorporate by reference in the text of
a statute each earmark that appears in legislative history documents in such a way
that Members and Senators voting on the incorporating textual language and the
President to whom the language is presented would be made aware of the earmarks
involved. An example is a provision of the Revised Continuing Appropriations
Resolution, 2007,47 which provides that, “The Office of National Drug Control Policy
shall expend funds for ‘Counterdrug Technology Center’ by Public Law 109-115 in
accordance with the joint explanatory statement of the committee of conference
(H.Rept. No. 109-307) within 60 days after the date of enactment of this section.”48
The unambiguous language of a directive of this type — “shall expend” —
would appear legally to bind an agency to expend funds in accordance with the joint
explanatory statement to which the directive refers. In Chevron, U.S.A. v. Natural
Resources Defense Council, Inc.,49 the Supreme Court held that
[w]hen a court reviews an agency’s construction of a statute, it is confronted with
two questions. First, always, is the question whether Congress has directly
spoken to the precise question at issue. If the intent of Congress is clear, that is
the end of the matter, for the court, as well as the agency, must give effect to the50
unambiguously expressed intent of Congress.
A passage in the policy section of the earmarks executive order may
acknowledge this principle. It states, in relevant part, that “[f]or appropriations laws
and other legislation enacted after the date of this order, executive agencies should
not commit, obligate, or expend funds on the basis of earmarks included in any non-
statutory source, including reports of committees of the Congress or other
congressional documents ... except when required by law.”
If Congress should choose to attempt to countermand the executive order, it
could seek to enact language stating that it should have no force and effect. Another
congressional option would be to seek to deny funds to the Office of Management
and Budget to enforce the order. As noted above, § 4(b) of the order states that it “...
shall be implemented in a manner consistent with applicable law and subject to the
availability of appropriations.” There is precedent for Congress enacting a statute to
revoke an executive order. During the Administration of President William J.
Clinton, Congress enacted a provision of the National Institutes of Health
Revitalization Act of 1993, which stated that the provisions of Executive Order


47 P.L. 110-5, 121 Stat. 8 (2007).
48 Id., chap. 10, § 21057(b), 121 Stat. at 55.
49 467 U.S. 837 (1984); reh. denied, 468 U.S. 1227 (1984).
50 467 U.S. at 842-843.

12,806,51 “... shall not have any legal effect.”52 This executive order, which had been
issued by President George H.W. Bush the previous year, directed the Secretary of
Health and Human Services to establish a fetal tissue bank. Given the highly
speculative basis of any asserted constitutional authority for the President to issue
such an order, there appears to be little doubt as to the legitimacy of this
congressional revocation.53 However, any congressional attempt to revoke the
earmarks executive order could set the stage for a more significant confrontation,
given the broad conception of presidential authority upon which its issuance appears
to be premised.54
Ultimately, whether enacting a statute to revoke the order or enacting language
denying OMB funds to enforce it would have significant legal effect is not clear
because of the nature of the order. As noted in the discussion above on consistency
between it and relevant case law, Executive Order 13,457 does not appear to create
new law. Instead, it directs executive agencies to comply with a principle
acknowledged by the Supreme Court: namely, that agencies are not legally required
to fund earmarks contained in legislative documents but not in the text of statutes.
Its significance appears to be in the establishment of a uniform policy throughout the
executive branch and the imposition of specific duties on agency heads to foster its
implementation.
Conclusion
The provisions of Executive Order 13,457 may significantly influence the
dynamic that has traditionally governed executive and legislative practice with regard
to nonstatutory earmarks, but the order itself appears to fall within the accepted
parameters of presidential authority in the executive order context. Courts have
acknowledged a premise upon which the order appears to be based: Earmarks in
legislative history documents and other sources that are not anchored in statutory text
have no legal force or effect. Moreover, while the provisions of the order appear to
direct executive agencies to refrain from funding nonstatutory earmarks that they may
have funded as a matter of course before it was issued, Congress has options such as
expressly including earmarks in the texts of statutes or statutorily incorporating by
reference earmarks in legislative history documents. These congressional responses
may ameliorate the impact of the order. Ultimately, the extent to which the earmarks
executive order will affect agency practice pertaining to non-statutory earmarks
remains to be seen, and, as the foregoing analysis indicates, may prove to be more a
matter of political rather than legal significance.


51 Exec. Order 12,806, 57 Fed. Reg. 21,589 (May 21, 1992).
52 P.L. 103-43, §121, 107 Stat. 133 (June 10, 1993).
53 See Youngstown, 343 U.S. at 635-638.
54 See n. 37, supra, at 3.