More on the escalation and the Constitution

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.

Author: Jonathan Zasloff

Jonathan Zasloff teaches Torts, Land Use, Environmental Law, Comparative Urban Planning Law, Legal History, and Public Policy Clinic - Land Use, the Environment and Local Government. He grew up and still lives in the San Fernando Valley, about which he remains immensely proud (to the mystification of his friends and colleagues). After graduating from Yale Law School, and while clerking for a federal appeals court judge in Boston, he decided to return to Los Angeles shortly after the January 1994 Northridge earthquake, reasoning that he would gladly risk tremors in order to avoid the average New England wind chill temperature of negative 55 degrees. Professor Zasloff has a keen interest in world politics; he holds a PhD in the history of American foreign policy from Harvard and an M.Phil. in International Relations from Cambridge University. Much of his recent work concerns the influence of lawyers and legalism in US external relations, and has published articles on these subjects in the New York University Law Review and the Yale Law Journal. More generally, his recent interests focus on the response of public institutions to social problems, and the role of ideology in framing policy responses. Professor Zasloff has long been active in state and local politics and policy. He recently co-authored an article discussing the relationship of Proposition 13 (California's landmark tax limitation initiative) and school finance reform, and served for several years as a senior policy advisor to the Speaker of California Assembly. His practice background reflects these interests: for two years, he represented welfare recipients attempting to obtain child care benefits and microbusinesses in low income areas. He then practiced for two more years at one of Los Angeles' leading public interest environmental and land use firms, challenging poorly planned development and working to expand the network of the city's urban park system. He currently serves as a member of the boards of the Santa Monica Mountains Conservancy (a state agency charged with purchasing and protecting open space), the Los Angeles Center for Law and Justice (the leading legal service firm for low-income clients in east Los Angeles), and Friends of Israel's Environment. Professor Zasloff's other major activity consists in explaining the Triangle Offense to his very patient wife, Kathy.