Hoping to keep this in in GC, but here goes:
If one President van interpret a (then) 100 yr old old law so as to ENSURE a shutdown if a budget is not passed, why can;t another pass one to nullify that interpretation?
The plain text of the Antideficiency Act is pretty hard to ignore. I do not know what the legal guidance was prior to the Carter Administration, but a plain reading of the text of the law leaves little latitude for the President and the Executive Branch. A President wishing to interpret the law in a way that the text plainly doesn’t support would seem to have a huge mountain to climb.
Oh yeah, and violations of the Antideficiency Act carry penalties of up to two years in prison… though I doubt anyone has ever been prosecuted.
The Antideficiency Act was first passed in 1884. It was overhauled in 1950 and again in 1982. So if you want to be accurate about Carter’s interpretation, you need to dig up the 1950 version and base your comment on that law.
The current law is very clear and doesn’t need a presidential interpretation. If we can surmise the 1950 was just as clear as the current law, Carter’s interpretation was in agreement with the actual law.
As others mentioned - the law says something.
The prez can get an interpretation, a legal opinion from a lawyer or several - “when the law says X, it allows you to do this but not that”
(i.e. “Repeatedly smothering and almost drowning a person is not torture under US law and Geneva conventions.”)
However, the lawyer should also be prepared to offfer an opinion how likely that opinion is to be accepted by the court - and weight that against the risk of punishment if the court disagrees.
Just because a president or his lawyer says “the law means this” does not mean that it does. Anyone in a position to challenge their action in court can do so, and ultimately the one(s) who decide(s) is/are the judges - probably would come down to the majority opinion of 9 of them.
Presidents don’t pass (or even introduce) laws. They only sign (or veto) laws passed by Congress.
For those who were wondering (as I was): Antideficiency Act - Wikipedia
And from a better source: http://www.gao.gov/legal/lawresources/antideficiencybackground.html
It is the responsibility of the President to interpret and implement law for the executive branch. Presidents, even when they are lawyers, don’t do this for themselves–they have the Justice Department do it. Specifically, there’s a part of Justice called the Office of Legal Counsel that advises the executive on what it may and may not do, according to statute. This is useful in an everyday way when laws conflict with each other, or contain some imprecision. It can also carry great weight in policy making, as when the OLC issued secret memos authorizing the CIA to use interrogation methods that until then had been considered torture.
The people who wrote the memos, among them John Yoo and Jay Bybee, considered their reasoning sound. Other lawyers didn’t agree and those memos were later rescinded. But, importantly, those memos helped shield CIA agents who employed those methods from prosecution–how can the US prosecute its employees for doing something the government had said was legal?
Back to the Antideficiency Act. If the OLC issues an opinion about how the executive may interpret and implement the Act, that opinion becomes binding on the government. It doesn’t matter what the opinion is or if to some it seems to defy the plain intent of the law. What the OLC says can happen, may happen. And in fact the Obama Administration has asked for OLC opinions on the debt ceiling–a related matter–though I believe they are still secret.
There’s also another strain of legal thinking that says that the President may interpret laws as he see fit–even independent of legal opinion or the Supreme Court. That is still considered extreme by most.
TL;DR: The President can do what he wants, if he pushes the boundaries too far it’s up to the courts, the Congress, and the people to make a big enough stink.
Actually opinions from top law academics, senior public service lawyers help to clarify the spirit of the law, so you also need to understand that Act in terms of any opinion, “guide to” , “notes”, descriptions, from suitable sources that may be produced at some time.
So when the OP says the President could form an interpretation, he would do so using references, and that would surely be to explicit statements from top legal eagles that support this new interpretation. They put their careers on the line when they do that.
I’ve heard the law makers mention the concept … “Here is the change to the law,
this is the effect it has, and here is the legal opinion from the Attorney Generals department listing 10 of their best lawyers who verify the changed have that effect !”.
If Obama ignores the debt ceiling (it arguably violates the 14th amendment, although the wording is not crystal clear) I assume he will be impeached, but I don’t see anyone with standing to take it to any court. The senate will obviously acquit him (or perhaps ignore it). The budget is different and I can’t imagine a legal opinion that would entitle him to start spending money again.
You have overstated this: the OLC provides legal advice to the White House. OLC opinions are not binding on the government, because the OLC is under no obligation to represent the views of the Legislative or Judicial Branches, nor are OLC opinions binding on those other branches.
You’re right, I meant the executive branch only. Thanks for pointing that out.