Oops! Republican Asks Scalia About Constitutionality Of Earmarks

January 25, 2011 3:59 a.m.

The latest in a recent string of Constitution gaffes might make Republicans think twice about their earmark moratorium.

On Monday, Rep. Michele Bachmann (R-MN) hosted a seminar for (mostly Republican) House members on the Constitution. Her special guest was Supreme Court Justice Antonin Scalia, who presided over what was reportedly a fairly dry, straightforward discussion of his legal doctrine, and answered a handful of other Constitutional questions.

At least one of these, it turned out, was embarrassingly rudimentary.“The question of earmarks came up, whether or not the constitutionality of earmarks would be considered constitutional [sic],” Bachmann told reporters after the seminar.

A growing faction within the Republican party has grown to disdain earmarks. But the question of whether Congress — the appropriating branch of government — has the right to direct spending has never been at issue. And Scalia’s explanation of that right may have left some of these freshmen Republicans wondering why the party has gone so far off the deep end.

“It’s up to Congress how you want to appropriate, basically,” Scalia told the members, according to Rep. Louie Gohmert (R-TX). “He pointed out historically, like when Jefferson was president, [Congress] said here’s a big pot of money, you decide where it goes, and Jefferson ended up paying up a big hunk of it to the Barbary Pirates.”

“I think the fairest thing to say was he took it for granted they were constitutional,” said Rep. Jerrold Nadler (D-NY) — one of a small handful of Democrats in attendance. “I don’t think there was any question. I can’t see how you can make an argument that they’re not Constitutional — Congress is the appropriating body.”

“He did say you could make an argument…. What if Congress passed a bill without any earmarks, without any instructions at all? ‘Here’s $50 billion, spend it on what you think wise Mr. President,'” Nadler said. “I think that would raise the question of improper delegation. He said, to my surprise, I wasn’t aware of this, he said that that was the way it was done in the first few years of the republic.”

Suddenly earmarks might not sound so bad.

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