Mark believes in the law, and that is to his credit. He suggests that the Anti-Deficiency Act would prevent Bush continuing with the escalation even if Congress would not appropriate the funds. But I’m not persuaded that the Bush Administration does believe in the law, and I think that there are ways around his scenario.
The most straightforward would be an Attorney General or White House counsel opinion stating that the anti-deficiency act does not apply in this case because it interferes with inherent executive power under Article II. Remember that the AG wrote an opinion effectively stating that during wartime, Bush is the king. Compared to that, this is small potatoes. Acting under an official executive legal opinion gives civil servants effective cover. And a pardon to a military officer who requisitioned supplies above Congressional authorization would be an excellent signal to all those who might be dissuaded from following orders.
But we do need to know a couple of things. First, how many civil servants would it take to actually carry out the spending over and above Congressional authorization? Second, are people actually prosecuted for anti-deficiency act prosecutions? Third, although not in the statute, is there an implicit requirement to INTEND to violate it, making such prosecutions difficult?
This is what I meant in my post by wargaming out the scenarios. We had better be prepared to think through several moves: I know that David Addington is.