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October 11, 2013

Putting Military Families in Harm's Way

By

So the families of service members killed in the line of duty since October 1 will receive death benefits after all. Last night, President Obama signed a bill that specifically authorized those payments.

But the late-night drama wasn’t necessary at all. Nothing had ever prevented the administration from making those payments. The only thing that stood between the military survivors and their benefits was the administration’s very strained reading of existing law — an interpretation completely out of character with the very broad readings the administration has given other federal statutes over the past five years.

In trying to justify the administration’s peculiar interpretation, the Pentagon’s comptroller, Bob Hale, claimed that “we don’t have the legal authority to make those payments.” More specifically, the Navy Times reported, an anonymous Pentagon official claimed the Pay Our Military Act (POM Act), signed into law on October 1, “cannot be used to legally justify the payment of survivor benefits.”

The $100,000 death gratuity is intended to cover the unexpected expenses incurred by the families of service men and women who are killed while on active duty. The payments are authorized by 10 U.S.C. § 1478. Section 1480 of the same federal law says that the funding for this death payment “shall be made from appropriations available for the payment of members of the armed force concerned.”

The POM Act specifically appropriated from the Treasury Department all “sums as are necessary to provide pay and allowances to members of the Armed Forces.” Since the death benefit is paid out of “appropriations available for the payment of members of the armed force[s],” the POM Act funds were available to make the death payments.

Yet Pentagon lawyers pursued a very narrow reading of the law. That’s a sharp departure from this administration’s history of broad readings concerning the president’s executive authority. For example, the president’s legal eagles have frequently embraced far-ranging (to the point of being legally untethered) readings to claim that the president can refuse to enforce statutes he disagrees with, to decline to defend their constitutionality in court, to waive statutory requirements even when the statute does not give the president express waiver authority, and to act in areas like immigration and the environment without specific statutory authorization.

Defense Secretary Hagel said he was “offended, outraged, and embarrassed” that the government shutdown prevented him from making these payments. But what should have “offended, outraged, and embarrassed” him and the president was the Pentagon’s curious reading of the law. Even the Congressional Research Service agreed that the Pentagon was misinterpreting the POM Act.

The initial refusal to pay benefits, however, was wholly consistent with the tactics used by the administration throughout its budget battle with members of Congress who want to pull the plug on Obamacare. From its unnecessary lockdown of the World War II Memorial in the nation’s capital to its efforts to limit access to national treasures like Mount Rushmore and Yellowstone Park, the executive branch has set out to try to inflict as much pain as possible on the American people so they will pressure Congress to give the president what he wants to end the government shutdown.

The administration seems committed to pursuing its “maximum pain” strategy as long as it’s politically tenable. At the Thursday White House press conference, Jay Carney still was arguing against the death-benefits relief bill, saying it was “not necessary” for the president to sign the bill since the Fisher House — a private charity — had stepped up with an offer to pay the benefit.

President Obama obviously changed his mind late Thursday as the public-relations damage from his stance continued to mount. But will signing a bill that should never have been needed get the president off the hook?

The initial refusal to allay the pain and hardship of grieving military families seems a particularly cruel misuse of power by the executive branch. People may long question why this administration chose to embrace an uncharacteristic and unreasonable interpretation of the law, rather than help the families of those who have given their all to these United States.

— Hans A. von Spakovsky is a senior legal fellow at The Heritage Foundation and a former Justice Department lawyer.

Originally appeared in the National Review Online

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