The House Delegates Appropriations Authority to the Executive?Submitted by jabowery on Fri, 04/08/2011 - 21:30
The Department of Defense is kind enough to at least try to explain where it thinks the Constitutional authority comes from to continue operations in the absence of Appropriations by the House of Representatives. Here is the excerpt from "Government Shutdown: Operations of the Department of Defense During a Lapse in Appropriations":
"The authority to continue some activities during a lapse in appropriations is governed by the AntiDeficiency Act, now codified at 31 U.S.C. 1341 and 1342, as interpreted by Department of Justice (DOJ) legal opinions and reflected in Office of Management and Budget (OMB) guidance to Executive agencies. Subject to review by OMB, each agency is responsible for making specific determinations on which activities may continue during a shutdown and which may not. Legally, according to DOJ and OMB guidance, activities that may continue during a lapse in appropriations include (1) activities “necessary to bring about the orderly termination of an agency’s functions;” (2) administration of benefit payments provided through funds that remain available in the absence of new appropriations, including, in the case of DOD, military retirement benefits; (3) activities and purchases financed with prior year funds and ongoing activities for which funding has already been obligated; (4) activities undertaken on the basis of constitutional
authorities of the President; and (5) activities related to “emergencies involving the safety of human life or the protection of property.” The Defense Department attributes its authority to carry on national security-related operations mainly to Section 1342 of the Anti-Deficiency Act that permits the continuation of activities to protect human life and property"
It would appear to me that the "Anti-Deficiency Act" permits the executive branch to determine what is "essential" and effectively appropriate its own funds during a so-called "government shutdown".