-- Posted by Neil H. Buchanan
On November 1, I wrote a post here on Dorf on Law that asked: "What Can We Say About Government Shutdowns That Is Not (Completely) Related to the Debt Ceiling?" That post focused on the "other half" of the big fiscal policy crisis that enveloped the country until October 16, to wit, the government shutdown. (The "first half" being, of course, the debt ceiling.) In that post, I engaged with the question of whether there is anything to say about the government shutdown that does not simply boil down to talking about the political consequences of the two sides' failure to reach an agreement. That is, is there a legal -- ideally a constitutional -- argument that would help us to avoid a possible future filled with more shutdowns and budget brinksmanship?
I then tentatively -- one might even fairly say gingerly -- said some positive things about an argument that the historian Sean Wilentz offered at a "debate" at the National Constitution Center, in which I had participated on October 29. Professor Wilentz offered the provocative idea that President Obama could have refused to shut down the government, even in the absence of appropriations laws that are normally required to allow the government to operate, on the basis that the executive has a unique Constitutional responsibility to protect the republic. He invoked the idea of "insurrection," noting that Presidents Andrew Jackson and Abraham Lincoln had taken actions in defiance of what amounted to members of Congress refusing to do their duty under the Constitution.
Professor Wilentz, as I noted in my earlier post, is fully aware that he is possibly opening a Pandora's Box. He had already felt compelled to dial back his argument, in response to people who likened his position to the Bush-Cheney(-Nixon) idea that the President can do anything he likes, because he is the President. I also noted that something along the Wilentz lines had actually happened during the October 1-17 shutdown, when Defense Secretary Hagel unilaterally called all of his employees back to work, essentially declaring that he was not going to allow Tea Party zealots to undermine the Pentagon's work. That move was surprisingly uncontroversial, but surely that was because it was the Defense Department that was involved. (Imagine what would have happened had it been the Environmental Protection Agency, or -- shudder -- the IRS, even though the day-to-day operations in those agencies are surely at least as important as the mundane work of non-essential Pentagon workers.)
As a constitutional matter, my greatest reservation about endorsing (even slightly) the Wilentz argument is that the argument has no connection at all to the Buchanan-Dorf "least unconstitutional option" argument regarding the debt ceiling. The most important difference is that Buchanan-Dorf is all about preserving the separation of powers, whereas Wilentz's argument is about blurring that separation.
Our argument, after all, is based on the fundamental idea that the President is constitutionally obligated to take the path that involves the least legislative-like action, and that preserves Congress's ability to undo after the fact what the President has done. And all of this is required, we argue, even after Congress itself, through its inaction, has put the President into an impossible situation. Further, we note that our argument is strengthened by the line-item veto case, in which the Supreme Court prevented Congress from actively and consciously giving away its legislative power. As a matter of incentives, moreover, we have argued that a President who responds to a trilemma by refusing to pay the government's obligations -- that is, who defaults -- would give Congress every incentive to become a sham legislature, passing spending laws that it knows the President will later rewrite.
In a comment on my November 1 post, Professor Dorf expressed his discomfort with the Wilentz position. In part, he noted correctly that there is now a bit of a "brand" to the Buchanan-Dorf argument, and he does not want that brand to be diluted. That is quite right. Not only is the Wilentz argument of a completely different type than ours, as I described just a moment ago, it is worth remembering just how much trouble we have had getting people to understand that our argument is NOT the same as the argument based on the Fourteenth Amendment. How much worse would it be if we also ended up saying, "We're all about preserving the separation of powers on the debt ceiling, but we're not when it comes to shutdowns"?!
Beyond that practical concern, what increasingly bothers me about the Wilentz approach to shutdowns is that it represents a further degradation of restraint in Washington. In a sense, nothing less than the rule of law is at stake, because we are in the process of trying to figure out whether anything other than elections (Dick Cheney's "accountability moments") should constrain political actors. To a large degree, the Bush-Cheney years demonstrated, through the absence of modesty and restraint, that much of what goes into the rule of law requires that everyone -- most definitely including the President -- show modesty and restraint.
I am aware, and somewhat sympathetic, to the argument that one side should not be naive, tying itself to legal rules and norms that the other side gleefully abandons. The most forceful version of that argument that I have heard was from Professor Catherine MacKinnon, when I took her Sex Equality course in law school. In response to an argument that feminists should be willing not to push the envelope, lest the other side use that as an excuse to blur the lines of the law in their own favor, MacKinnon essentially said that it is ridiculous to think that the other side would show any restraint at all, no matter what she or her allies might do. Expecting the other side to play by the rules, because we play by the rules, seemed not just naive but self-defeating.
A similar argument continues to simmer in the U.S. Senate over the filibuster. With three more successful Republican filibusters of Obama nominees to the DC Circuit recently, Democrats are again thinking about the "nuclear option," by which they would change the rules and either eliminate filibusters entirely, or at least make it easier to overcome a filibuster. Republicans are warning of all-out warfare if the Democrats make such a move. I am highly sympathetic to the retort from Democrats that the Republicans would not hesitate to change the rules in their favor even for a second, if the roles were reversed. In a MacKinnon-like argument, these Democrats say that their own restraint does nothing to preserve the long-term balance of power, and thus amounts to self-inflicted damage.
I am, nonetheless, still with Professor Dorf on this. As appealing as Professor Wilentz's argument is in the context of the recent shutdown, I hereby step back from my tentative near-endorsement in my November 1 post. As I suggested in that post, and as Professor Dorf emphasized in his comment on that post, the President's role as a political actor makes it nearly impossible to imagine a scenario in which he can be an aggressive proponent of his side's priorities in negotiations over spending, while also being the arbiter who says, "You know what? The failure of both sides to agree on a compromise allows me to simply refuse to shut down the government, because the other side is being too obstinate."
There will, of course, always be one-off situations in which we can imagine that a President would and should take extraordinary action, Lincoln's illegal actions to preserve the union being the most obvious. In a different context, Professor Dorf has argued that the "ticking time bomb" scenario will almost surely cause some Presidents -- understandably -- to take illegal actions. The point is that we have to do everything possible to hold that line, saying that we will never tolerate such actions, even though we know that we will. Otherwise, we are on the slipperiest of slopes.
As bad as government shutdowns are, they simply do not amount to ticking time bombs. The damage from shutdowns is large enough to matter politically, as it should, but not so large as to be generally irreparable or to justify sacrificing the rule of law. Even though the Republicans were truly being insane, to the point where Professor Wilentz could reasonably analogize their intransigence to insurrection, the best response is still for the Democrats to win the political battle in the longer term.