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Remarks by U.S. Senator Robert C. Byrd

April 11, 2003

Protecting the Constitutional Authorities of Congress

As early as tonight, the Senate will consider the supplemental appropriations conference report to begin to fund the war in Iraq. For many hours today, members of the House and Senate Appropriations Committees worked to complete action on the legislation, and I am pleased to report that we are nearing a final package.

However, despite the progress today, I remain concerned about the path on which this conference report places the Congress.

For decades, Presidential Administrations have sought to wrap their fingers around the purse strings, push away the Congress, and ignore the Constitution. It does not matter which Administration. It does not matter the political party of the President. What matters is nothing more than raw power. Congress has it. The Executive Branch wants it -- and will use any excuse to get it.

It was not long ago that I joined with the Senator from New York, Daniel Moynihan, the Senator from Oregon, Mark Hatfield, the Senator from Michigan, Carl Levin, and two members of the House of Representatives, Congressman David Skaggs of Colorado and Congressman Henry Waxman of California, to challenge the Line Item Veto. Every President in the 20th Century, save for William H. Taft, sought some form of line-item veto. Foolishly, on March 23, 1995, the Senate passed by a vote of 69-29 the Line Item Veto Act, giving the Office of the President the power to pick and choose which items in appropriations bills to fund, and which to ignore. With the Line Item Veto, the President had the power to threaten and intimidate members of Congress -- the people's directly elected representatives. It gave one man the power to change unilaterally a bill that was the product of give and take, debate and compromise between and among 535 men and women who were directly elected by the people to represent them in Congress.

Fortunately, five years ago this June, the United States Supreme Court had the wisdom to see the danger of this approach. The Justices ruled that Congress did not have the authority to delegate away the Constitutionally granted power of the purse. The Court understood precisely what was at stake.

The absolute bedrock of the people's continued freedom from tyranny and excesses of all types of authority is the power of the purse. James Madison summed up in a very few words the significance of this power in protecting the people's rights and liberties. In Federalist 58, he wrote: "This power over the purse, may in fact be regarded as the most compleat and effectual weapon with which any Constitution can arm the immediate representatives of the people for obtaining a redress of every grievance, and for carrying into effect every just and salutary measure."

This essential tool -- control of the purse by the people's representatives in Congress -- lies at the very foundation of our nation's freedoms. It is the fulcrum of the people's leverage. As enshrined in the Constitution, it is one of the chief protectors of all our cherished freedoms. This control of the purse is one of the most effective bulwarks ever constructed to repel a despot, control a tyrant, or shackle the hands of an overreaching chief executive. Chip away at this fundamental barrier and one chips away at the very cornerstone of the people's liberties.

But, incredibly, Members of Congress, in this day, seem to be intent on doing just exactly that -- steadily chipping away at the power of the purse, and at the other constitutional powers and prerogatives of the people's representatives in Congress.

Since that June day nearly five years ago when the High Court struck down the Line Item Veto Act, Administrations have sought ways around the High Court ruling. They have sought to chip away at this Constitution. They have sought to control the crucial power of appropriating. That concerted Executive Branch effort has continued in this supplemental request.

Just a few weeks ago, after months of stiffarming Congress's request for information regarding the cost of military action in Iraq, the President finally provided the details of the first installment payment totaling $74.7 billion. Of that amount, for the Department of Defense the President sought $62 billion. But the President wanted the Secretary of Defense to pick and choose how to spend more than $59.8 billion of that money. Congress was asked to provide this funding in an account labeled the "Defense Emergency Response Fund." Around Washington, this fund is nicknamed DERF, D-E-R-F. I can think of another explanation for DERF - - the Dangerous Erosion of the Right to Fund. No, it was not flexibility that the President sought. It was control. It was power.

The President's supplemental request sought another $1.4 billion for the Department of Defense to allow the Secretary of Defense to allocate funds to pay nations that have provided support primarily for the global war on terrorism. Again, the Secretary of Defense would decide where, how, and when to invest those dollars -- not the Congress. Nowhere in the Constitution is the Secretary of Defense given the power of the purse. Again, it was not flexibility that the President sought. It was power.

Time after time, in line after line, this Administration sought unprecedented authority to spend the people's money how it wanted, where it wanted, when it wanted, and why it wanted. The cry went out, "Give us flexibility." It was not flexibility that the President wanted. It was power. Power! Power over the purse. Power over the Congress.

Wisely, the House and Senate Appropriations Committees limited that power grab in this supplemental request. Despite the best efforts of the Administration, the conference report holds to almost all of the committees' limitations and protections. But it took a vote of the conference this morning to give protection to the prerogatives of this Congress.

With that vote, the House and Senate conferees approved a five-day notification on how the Secretary of Defense and the President chose to spend the $15 billion in the Defense Emergency Response Fund. Five days notification is not too great a burden for the Administration to meet. The Administration resisted the bipartisan effort to require this short notification, but the conferees acted to protect the people against a would-be power grab by the Administration.

If there is an imminent danger facing the nation today, the Commander in Chief does not need to wait to respond. He will not say that he cannot stop an attack against America simply because he has to tell Congress first. He has the inherent Constitutional right to counter any imminent threat facing the United States. A five-day notification requirement on the DERF does not tie the President's hands at all, but it does help to protect the people's liberties against an overreaching executive.

Despite the good work by the conferees to limit the so-called flexibility, I fear that this conference report is nothing more than a first step down a slow road to oblivion for Congress. Because of the President's insatiable desire to control the power of the purse, what we are witnessing in this DERF is a unique and creative strategy to circumvent the people's directly elected representatives. What will be next? Which department or agency will seek its own Emergency Response Fund, with no strings, no questions, no examination? Why not just hand each department in the Administration a huge check at the start of each fiscal year and say, "Here you go. Have a good time. Send us a post card." Put a sign on the Capitol dome: "We are going out of business."

I hope that this will be the last time Congress feels the need to accommodate an Emergency Response Fund that contains so few strings, so few protections.

Since this war began, I have stated my strong support for the men and women engaged in military action and for their families. I have pledged every resource necessary to speed their victory and safe return home. I will keep that pledge and vote for this conference report.

But I have also sworn an oath to protect and defend this Constitution. I will not stand quietly by while we demolish this document which has served for more than 200 years as the foundation of this Republic. This bill is only the down payment on this war and on the occupation and reconstruction of Iraq. This conference report is only a fraction of the cost. As this body writes the checks for the rest of the war and the reconstruction, the Senate should defend vigorously the power of the purse and ensure that the system of checks and balances is preserved.

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