[dragonwriter]

> Well, it would violate the Antideficiency Act.

More to the point, it would violate an express prohibition in Art. I, Sec. 9 of the Constitution: “No money shall be drawn from the treasury, but in consequence of appropriations made by law”.

> Would the Supreme Court order the government to close?

Yes, the Supreme Court would very likely order the executive branch to stop expending non-appropriaed funds.

> But, assuming it doesn't, Congress can either accept it, or impeach and remove the President. Given removal of a President requires a two-thirds vote of the Senate, it probably wouldn't happen.

Maybe not right now, where Congress is dominated so much by partisanship over protection of institutional traditional, legal, and Constitutional power that you can imagine the President's party backing such a blatantly unconstitutional usurpation of Congressional authority. But that's sort of aberrant historically; most of the time, even the President’s party is keen to keep the executive out of legislative branch’s clear Constitutionally-reserved powers.

[njarboe]

Like Rome, it seems that over time the legislative body finds less and less to agree on and with that inaction, the executive slowly takes over the power vacuum.

[skissane]

> More to the point, it would violate an express prohibition in Art. I, Sec. 9 of the Constitution: “No money shall be drawn from the treasury, but in consequence of appropriations made by law”.

Well, you are right, I wasn't really thinking about the appropriations clause in my previous post. Although, a President could argue that Congress is violating (at least the spirit of) the Constitution by refusing to present an appropriations bill for signature, and that the President's action is forced by Congress' own dereliction of its constitutional duty. Furthermore, the President could argue that by applying pro rata last year's appropriation acts, the President is still appropriating "by law", just using a previous law faced with Congress' failure to pass a new one. If the President can present an interpretation of that clause by which keeping the government open is constitutional, then the President can insist they are not violating the Constitution, unless and until the Supreme Court says that the President's interpretation is wrong.

> Yes, the Supreme Court would very likely order the executive branch to stop expending non-appropriaed funds.

But how often have the Courts enforced the appropriations clause in the past? There seems to be very little case law. The Executive has violated it in the past (e.g. the Reagan administration violating the Boland Amendment) and the Judicial branch has tried its best to duck the issue (Sanchez-Espinoza v Reagan).

If the Supreme Court wants to stay out of it, they have the tools to do so – standing, the political question doctrine, etc. Whether they choose to do so or not may ultimately turn out to be a political rather than legal decision. If the Court has a Republican-apppointed majority, and a Republican President is refusing to shut down the government, the Court might decide to stay out of the matter, while they might decide differently if the President were a Democrat.

(Although in theory the Supreme Court is apolitical, in practice they sometimes appear to be motivated by political concerns, see e.g. Bush v. Gore, and also Roberts and the Affordable Care Act.)