Carolyn Kaster/AP Photo
A sign is posted on a barricade in front of the closed Lincoln Memorial in Washington, October 1, 2013, during a previous federal government shutdown.
As of Wednesday, there are just four days before the government shuts down, and it’s looking quite unlikely that it will be avoided. The main problem is the House Freedom Caucus, which has flatly refused to abide by the agreement struck between House Republicans and President Biden back during the debt ceiling negotiations, where Republicans extracted some modest budget cuts (too modest for the hard-liners) in return for not blowing up the global financial system.
The Senate is reportedly preparing its own budget package to pressure Speaker of the House Kevin McCarthy to pass it with mostly Democratic votes, but there is little sign McCarthy will agree to that yet, because he’s afraid of crossing the hard-liners, who can then call for a vote to remove McCarthy from his job.
At time of writing, the Freedom Caucus can’t even agree on what hostage they want, though various proposals to slash vital government services (like cutting aid to low-income public schools by 80 percent) have been mooted. One gets the impression that they simply want a shutdown for its own sake—egged on by Donald Trump, who recently demanded, “UNLESS YOU GET EVERYTHING, SHUT IT DOWN!” in a post online. That includes stopping “the Weaponization of ‘Justice,’” which obviously refers to Trump’s various prosecutions for attempting to overthrow the government and other crimes.
To onlookers, this is no doubt maddening. First of all, there’s a solution that all but a small faction of one party in one chamber of Congress would agree to—so how isn’t that being done? And how is it possible that such a rich country can be governed like this? The truth is, most of them aren’t—and that includes the U.S. itself before 1980. It would be quite simple to return to the previous system.
A government shutdown is not possible in other rich countries. As Rick Noack details at The Washington Post, in Westminster-style systems like the U.K. or Australia, if the government fails to pass a budget, then typically it must resign and new elections are triggered. Or in Germany, failure means the government budget runs on autopilot. Amusingly, Belgium also has a German-style system, and when it had no government at all for almost two years in 2010-2011, the autopilot budget was quite helpful because inaction meant avoiding much of the brutal austerity then being imposed across the continent.
So how do we fix the American system? We just have to return to procedures that were in place as recently as the 1970s.
The legal question here centers on the 1870 Antideficiency Act. As Andrew Cohen writes at The Atlantic, back in the 19th century, presidents would commonly extort money out of Congress by signing contracts without having an explicit appropriation, and then daring legislators to break the government’s word. The Antideficiency Act forbade that kind of trickery. But it was less specific about what should happen if Congress simply failed to pass a budget at all (which likely didn’t even occur to them).
One could imagine an aggressive legal strategy for the Biden administration to get around the current interpretations of the Antideficiency Act.
For the next 110 years, it was thought that if that happened, agencies could simply keep spending money along their current track, and Congress would make up the difference later. After all, the government performs innumerable important tasks, and shutting that all down just because Congress can’t get its act together would be silly.
That all changed in 1980. At the time, the FTC was nearly out of money, and President Carter was in a dispute with corrupt members of Congress who wanted to drastically cut back the agency’s enforcement powers. He asked then-Attorney General Benjamin Civiletti about the legal options, and Civiletti proceeded to invent the government shutdown.
In a blinkered and hyper-literalist exercise in hair-splitting so characteristic of the liberal legal establishment, Civiletti argued that “legal authority for continued operations either exists or it does not,” and so if Congress hasn’t passed a specific appropriation for an agency, it has to shut down. “Faithful execution of the laws cannot rest on mere speculation that Congress does not want the Executive branch to carry out Congress’ unambiguous mandates,” he wrote. Naturally, Civiletti later had to amend his strict reading of the statute because, well, stopping paychecks to soldiers or shutting down every airport in the country would be really bad.
To fix this, and end the government shutdown threat, the most obvious option would appear to be to just return to the pre-1980 legal status quo. Alas, after Civiletti’s tenure, Congress amended the Antideficiency Act with somewhat clearer language formalizing the shutdown procedure, including an exception for “emergencies involving the safety of human life or the protection of property.”
One could imagine an aggressive legal strategy for the Biden administration to get around the current interpretations of the Antideficiency Act. The president might, for instance, issue an executive order arguing that actually everything the government does involves the safety of human life or protection of property in some way, which is arguably true. After all, even furloughing park rangers puts lots of federally owned land at some risk.
But not only is Attorney General Merrick Garland’s milquetoast Department of Justice vanishingly unlikely to attempt such creative legal innovation, if the Biden administration were to try such a strategy it would no doubt end up before the Supreme Court, which is sure to rule against it. And if we’re honest, the Constitution really is pretty unambiguous on this point.
Still, if it were up to me, I’d attempt it. At the least, forcing the Supreme Court to shut down the government itself would clarify who is responsible.
But a law would be a much more reliable path forward. Remarkably, there is actually a bipartisan movement afoot in the Senate to end shutdowns, led by Maggie Hasan (D-NH) and James Lankford (R-OK). The idea is to amend the budget procedure such that if Congress fails to pass one, a stopgap status quo spending bill is triggered every two weeks, and Congress is forbidden from leaving Washington until a budget is passed. That would end shutdowns at a stroke.
Passing this now, of course, runs up against the same madness as a few Freedom Caucus members hijacking a stopgap spending bill. They won’t agree to being robbed of their own power, and McCarthy won’t dare cross them. Alas.
But the fact that shutdowns are even possible, like the anachronistic debt ceiling, is evidence of a profound rot in the American political system. Passing a budget—thereby setting out the rate of taxation and various fees, the funding of government agencies and the military, and so forth—is perhaps the single most important routine task of any government. Heck, it’s half the reason for having a government in the first place. One of the main reasons they did not happen for longer than a few hours or days before the 1990s was a widely shared norm that certain basic functions of government, like the day-to-day functioning of the state, should be outside political disputes. It was only with the Gingrich revolution in 1994, which brought a bunch of irresponsible, dimwitted loudmouths into Congress, that the norm was shattered.
Since then, the right wing of the Republican caucus has only gotten louder, dumber, and even more irresponsible. It seems quite unlikely that any end to shutdowns could be passed with the Freedom Caucus de facto running the House. But should they lose power in 2024, yahoo-proofing the government should be a top priority for all Democrats, and any Republicans who can see sense. A simple one-sentence bill could rescue the budgetary hostage forever; another one could end the possibility of debt default. And who knows, without the ability to harm the American people through muleheaded intransigence, the Freedom Caucus might have to learn to negotiate.
