Putting on the tinfoil hat again

What if Congress refuses to appropriate money for the surge and the Dear Leader just ignores it?

I realize that this question may sound flip, but given the Bush Administration’s desire for a permanent constitutional crisis, I think that it might be worth wargaming right now. The conversation now in Left Blogistan is whether Congress should refuse to appropriate money. But isn’t this just a paper formality?

Say Congress refuses to appropriate the billions that Bush requests for the war. Then Bush just orders his Treasury Secretary, who reports to him, to cut the check, buy the equipment, pay the suppliers, etc. Quite literally, is there anything that stops this from occurrring as a practical matter?

And does anyone think that an answer such as, “well, that would be illegal and an impeachable offense” has any purchase? The President’s minions will just say that this is inherent in the Commander-in-Chief power; they will note that Article I of the Constitution only says that all legislative power herein granted shall be vested in Congress, implying a legislative power in the Presidency (don’t laugh; I’ve heard this); the press will dutifully say that there is a legal dispute; and that will be the end of that.

We all assume that Congress has the power of the purse, but all these things depend upon some commitment by everyone to observe basic norms of a political culture. But I am not being rhetorical here: is there any practical reason why this scenario would not occur?

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.