Shutdown Delusions

Article I, Section 11 of the US Constitution stipulates that when congress can’t agree on appropriations the federal government must shut down. Oh, wait, there is no Section 11 and, in fact, nowhere does the constitution mention anything about shutdowns.

We do, however, have something called the Antideficiency Act (ADA) which requires congressional appropriations before the government can spend new money. The ADA dates from 1870; its modern form was adopted in 1884; and it has been revised with major amendments, notably in 1950 and 1982. The ADA provides for civil and criminal penalties; no one, however, has ever been prosecuted for a violation. Supposedly, the language of the ADA requires a government shutdown absent appropriations but, prior to 1981 under Ronald Reagan, in the entire history of the United States including before the ADA was enacted there had been no shutdowns of any importance. Instead, the rule of thumb was for government to continue with business as usual pending appropriations. If discrepancies appeared between existing practice and new appropriations then accounting issues would be ironed out later. This may not have been an ideal system but it wasn't completely bonkers, either.

Separate and distinct from common law, the concept of a shutdown dates from 1980, when Jimmy Carter's Attorney General, Benjamin Civiletti, wrote a largely inflexible DOJ opinion that said, in essence, without appropriations most government activity must come to a screeching halt. No doubt Civiletti hoped to raise government accounting standards but his legalistic orderliness had an unintended consequence of weaponizing the appropriations process. After Civiletti plucked the ADA from obscurity we have had ten shutdowns (1981, 1982, 1984, 1986, 1990, 1995, 1995-1996, 2013, 2018, and 2018-2019). They have, utterly predictably, followed an arc of increasing politicization. Both sides have been to blame though Republicans by far have been the worst offenders.

The Washington Post estimates that the 'hard no' Republican faction who are blocking a deal in the current crisis represent about 2% of Americans. Make no mistake about it, no rational theory of democracy legitimizes the empowerment of a minority -- and especially not such a tiny minority -- to turn budgetary negotiations into a hostage situation in which the minority's legislative preferences become ransom payments. That sort of fight is most definitely not 'politics as usual' and these bizarre shutdowns don’t happen anywhere else on the planet. Which begs the question, why have government shutdowns become a self-inflicted disaster only in the United States?

If shutdowns were a genuine separation of powers issue then surely they would have popped up at earlier points in American history. But as the constitution was ratified 191 years before the first real shutdown we can quite reasonably discard a constitutional explanation. And as noted above, the ADA has never been tested in court. This matters because the ADA's presumption of lawfulness rests not on common law but only upon a DOJ opinion. And as we know, the president has the authority to revise or ignore DOJ opinions according to his own judgment.

What should we do with a rogue DOJ opinion masquerading as established law that serves the most divisive political purposes? At the very least, the president could test the theory and say "no" to a shutdown. Let the radical Republicans sue, and let the Supreme Court rule that without appropriations there must be a government shutdown. Make them put their cards on the table. The Supreme Court might, or might not, take the case. But shutting down merely on the basis of a 1980 DOJ opinion seems like extraordinarily poor judgment. Benjamin Civiletti’s guidance is less an established, lawful requirement so much as it is an invitation to participate in a mass delusion.