House GOP Votes On Libya Could Really Backfire

Last week’s effort by the House GOP leadership to embarrass the Obama administration on Libya may have had some success politically but it has the potential to backfire legally big time.

Just to review: Knowing that it would be voted down, the House leadership held a vote last week on legislation that, if enacted, would have provided official congressional support for U.S. military activities in Libya. As expected, the bill was overwhelming defeated.

But…in what could be one of the classic overreaches of all time, the leadership then held a separate vote on another bill that, had it been enacted, would have stopped any federal money from being spent on Libya and it too was voted down. The problem for the GOP is that the courts and the Government Accountability Office have consistently held that the most recently considered legislation is the one that expresses current congressional intent. In this case that means that the failed attempt to cut off funding for Libya would likely be taken by the courts as the real expression of what Congress wants to do.

In other words, the House may have voted against what in effect was the “authorization” for the activities in Libya, but it then voted for what effectively was the appropriation for those same activities.

This is actually a widely misunderstood part of the federal budget process. The U.S. Constitution only requires an appropriation; the authorization is a congressionally created requirement. There have been legal challenges to spending for programs that have not been both authorized and appropriated, but the courts have generally determined that, in the absence of an authorization, the appropriation, that is, the most recent expression of congressional intent, serves as both.

All of this is somewhat academic in this case because the Senate doesn’t seem to have any interest in taking up the bill to authorize the Libyan activities or defund the spending and, even if it did, the president almost certainly wouldn’t sign it. But even if the Senate followed the House’s lead by defeating the authorization and it was not vetoed, a lawsuit challenging the funding on authorization grounds would very likely be decided in the administration’s favor because of the second vote the House GOP leadership forced.