From the TRB Newsletter "A Congressional Research Service report explores the legal issues associated with President George W. Bush's January 29, 2008, Executive Order 13,457, "Protecting American Taxpayers from Government Spending on Wasteful Earmarks." The report provides an overview of the provisions of the order and explores questions that have arisen regarding both the President's authority to control executive branch activity in this context and the effect of non-statutory congressional spending directives. The report also evaluates potential congressional responses to the executive order."
One analysis against the framework laid out in Youngstown Sheet & Tube Co. v. Sawyer and concludes (in the middle of the report, page 9) "... there does not appear to be any discernible basis upon which it could be asserted that Executive Order 13,457 runs contrary to constitutional or statutory precepts...."
The next analysis looks at Lincoln v. Vigil and Shannon v. US. It concludes with the Comptroller General position that regarding Congressional directives in non-statutory documents "The executive branch ... has a practical duty to abide by such expressions. This duty, however, must be understood to fall short of a statutory requirement giving rise to a legal infraction where there is a failure to carry out that duty.”
The report describes that one of the ways Congress can respond to the EO....(wait for it)...(wait for it)..."would be for Congress expressly to include each earmark in the text of a statute and thereby place it beyond the agency decision-making process that the executive order requires for nonstatutory ones."
Yeah Let's hope they choose that one. But don't hold your breath.