Agency earmarks in limbo


A curious memo may halt spending on many earmarks intended for federal agencies.

OMB Director Jim Nussle issued a memo Oct. 23 detailing conditions that must be met for agencies to spend earmarks embedded in the fiscal year 2009 continuing resolution, which also contains the Defense, Homeland Security and Veterans’ Affairs appropriations.

In order for an agency to allocate funding for an earmark, the earmark must meet three conditions. They are:

1. It must have been in the FY 2008 appropriations bill;

2. It must continue in 2009 and beyond (no one-time, non-recurring projects or grants); and

3. The affected agency must be able to spend the entire earmark in one year, 2009.

We imagine several federal managers will be scratching their heads when this memo lands on their desk. The five-page document is heavy on government jargon and cites multiple executive orders. It also references two U.S. Supreme Court cases, including Cherokee Nation v. Leavitt, in which the Court declared that language in congressional committee reports isn’t legally binding.

It appears this memo is part of the Bush administration’s efforts to preserve executive powers. In past years, President Bush’s signing statements for appropriations bills and CRs have listed passages the president takes issue with on grounds that they threaten the separation of powers. It looks like the same is being done here.

For more on this story, see the Nov. 10 issue of Federal Times.


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