Thursday, January 18, 2018

Opening Up About Shutdowns

by Neil H. Buchanan

As I write this column, it is still unclear whether there will be another government shutdown.  If nothing changes, the so-called nonessential functions of the federal government will cease operations at midnight on Friday, January 19.  The latest reports indicate that Donald Trump has thrown another hand grenade into the room by undermining the Republican leaders' latest bargaining strategy.  Within minutes, however, that was (unsurprisingly) being disputed.

This is a mess, but other than proving again that Trump knows nothing about negotiating and that Republicans are incapable of governing responsibly, does any of it matter?  The short answer is that a possible shutdown is not as important as people make it out to be.  Because this is ultimately all about political theater, however, this lowbrow farce can end up making a big difference for the two parties' respective political fortunes.

In any event, it is worth understanding what is not at stake as well as what is at stake, especially because averting this particular possible shutdown does not eliminate the threat of other shutdowns in the near future.

We can begin with a pertinent fact that has somehow been forgotten in the maelstrom of events that is Trump-era America.  The Deferred Action for Childhood Arrivals program -- DACA, or the Dreamers program -- is set to expire soon, and much of the action around this latest potential shutdown relates to how to protect the Dreamers.  But why is that even necessary?

Recall that DACA began as the result of an executive order from the Obama Administration.  Because it is in their nature, Republicans decided that they had to oppose Obama no matter the merits, so their best legal minds started trying to prove that this was an unconscionable violation of the Constitution.  Once Trump was in the White House, however, there was no longer any reason for Republicans to continue to oppose DACA, and Trump could have easily decided to allow it to continue.  Some hardliners would have continued to scream, but it would ultimately have become a nonissue.

It is true that the courts could have invalidated DACA at some point in the future, at which point we would be where we are now.  But that could have taken years, and even though some anti-immigrant groups would have eagerly pursued the case, the Republican leadership could have made clear that this was not a priority.

In any event, Trump claimed last Fall that he was stopping the program because it was unconstitutional.  And then he said that he was continuing it for six months.  Although his reason for extending it might have been defensible (giving Congress time to react), there was no effort at all to explain why it was acceptable to continue to violate the Constitution for six more months.

Trump could, therefore, now invoke the same equitable arguments to justify extending DACA for another few months or years (or decades).  If he did so, there would be no reason for the current budget negotiations to hinge on something that Trump had taken care of on his own.

As much as the current situation looks like congressional dysfunction, therefore, we should not forget that the DACA part of this story is entirely within Trump's control, at least in the short term and probably permanently.

DACA aside, however, the immediate question is whether the Republicans in Congress can pass a bill to fund the government past Friday -- and get Trump to sign it, which is not guaranteed in light of Trump's short attention span and willingness to take contradictory positions in rapid succession.

The Democrats are threatening not to sign on unless the Dreamers are taken care of, but the Republicans are now saying that they will offer other incentives to get Democrats to come on board, most importantly including a six-year extension of the Children's Health Insurance Program (CHIP).

Mind you, this is all in the service of keeping the government open for exactly four more weeks.  As I noted above, even if everything comes together now, this is a mere holding pattern.  We could continue to face potential shutdowns every few weeks forever, because even when we reach the end of the fiscal year on September 30, Congress could keep passing these continuing resolutions rather than adopting a once-normal yearlong budget.

A few thoughts:

(1) As I suggested above, a shutdown probably does not matter very much substantively.  As long as it is resolved within a few days or weeks, our experiences with shutdowns suggest that they are not only non-catastrophic events but are ultimately mere irritants.  The essential functions of the government continue, the furloughed employees end up receiving back pay (turning it into an unplanned paid vacation after the fact), and life quickly gets back on track.

That is not to say that a shutdown is to be desired.  Because I live in a suburb of Washington, D.C., many of my neighbors are federal employees, and they are understandably not sure that this Congress and Administration will decide to give them back pay.  They also simply want to do their jobs.  They are not the so-called deep state; they are public servants who are trying to provide the services that Americans have asked their government to provide.

Even so, financial markets barely even notice this kind of thing anymore.  (By contrast, if we end up with a debt ceiling-related default later this year, that will truly threaten economic Armageddon.)  Although it is counterintuitive, previous shutdowns have actually not saved the government money, but the slight net increase in federal spending essentially means nothing.

So long as Congress and the Administration manage to stumble their way out of any shutdown before too much time passes, therefore, we need only think about this as a political event, not a real-world event.

(2) So, the politics.  As always, I cannot imagine why the Republicans are doing what they are doing.  News reports indicate that House Republicans might not even pass something to send to the Senate, because their most extreme caucus is not willing to deal.  If so, they are missing a huge opportunity to win the blame game, because whatever goes to the Senate will require sixty votes.  That would put the onus squarely on the Democrats.

After all, if this were simply a matter of getting majorities in both houses, Democrats could accurately say to Republicans, "You can't blame us for obstruction when you can do whatever you want without our votes."  A sixty-vote threshold in the Senate, however, changes that game entirely.  Republicans can simply line up their people to vote yea in both houses and then leave it to Democrats to take the blame if nine of their Senators do not break ranks.

Democrats, of course, would say that they are standing on principle and are willing to shut down the government to protect the innocent Dreamers whose lives are at stake.  I agree with that argument.  The point, however, is that Republicans would have the upper hand by saying, "Look, you refused to govern by being obstinate about one issue.  The shutdown did not have to happen, and we did all we could to prevent it.  This is on you."  They would probably add, "And the one issue that you care so much about is protecting a bunch of illegal aliens," but that probably will not play well politically to anyone but Trump's ever-shrinking base.

The pundit class still thinks that shutdowns are problematic enough that the public ought to care about them.  In something of a reinforcing loop, the public does care at least enough to say, "That's messed up.  One side or the other is to blame."  And politicians want the other side blamed.  Simple.  If Republicans use their numbers correctly, they can position themselves as looking blameless.  And I say this as someone who knows that, underneath it all, the Republicans are truly to blame.

(3)  What about the non-Dreamer elements of the debate?  Republicans are trying to say that Democrats are being unpatriotic because the stopgap bill includes some military spending above the caps that a 2011 law imposed.  Cue the tear-jerking paeans to heroes, while carefully ignoring Republicans' actual track record in failing to care for our military personnel and families.

Trying to get the Democrats to bite, Republican leaders added the CHIP extension as a "sweetener."  The idea was that Democrats have been crying about providing health insurance to poor children, so surely there is no way that Democrats would vote against a bill that includes CHIP funding, even if that same bill is otherwise a Republican concoction.

Setting aside Trump's objection to including CHIP in this deal, what can we say about the respective priorities of the two parties?

Republicans are saying bluntly that they are willing to let CHIP die (which will mean literal death and disease for its current beneficiaries) in order to get what the Republicans want.  This is bizarre, because Republicans in large measure have been supportive of CHIP over the years.  There is no reason that they should think that CHIP is something to negotiate over in a who-blinks-first scenario, because they supposedly care about the innocent victims.

Put differently, a Democrat could say (and many probably already have said), "What is wrong with you?  Are you really saying that you'll let these innocents suffer and in some cases die and then try to blame us for their fate?  Giving more money for CHIP is the right thing to do."  Republicans are saying that Democrats have to decide whether Dreamers or CHIP recipients are more important.  Democrats are saying that Republicans did not have to set up the choice in that way.

But perhaps that proves too much.  After all, Republicans could retort: "What is wrong with you?!  Are you really saying that you'll let the troops suffer and in some cases die and then say that we forced you to do it?  Giving more money for the military is the right thing to do."  Is that not the equivalent choice, where both sides are simply trying to make their best case that their refusal to blink is in the service of something bigger?

It sounds similar, but the two choices are not in fact the same.  The idea that we are currently spending too little on our military is utterly preposterous.  If some aspects of the military continue to be underfunded, which is arguably the case in terms of personnel and some maintenance projects, then that is a matter of misallocation of funds rather than a too-small budget.

As a disanalogy, consider the way that Republicans talk about the Internal Revenue Service.  A few years ago, now-Speaker Paul Ryan was chair of the tax-writing Ways & Means Committee, and his staff issued a report criticizing the IRS for failing to answer all of the phone calls from taxpayers seeking assistance.  The problem was that Ryan's minions tried to claim that the IRS was misallocating funds, but even their own analysis revealed that there simply were not enough funds to do what Republicans wanted to have done even if the IRS reallocated everything to answering the telephones (and, by the way, completely stopped enforcing the tax laws).

The Pentagon's budget is essentially the opposite of the IRS's, not just in terms of size but in terms of bloat.  I am not saying that any Democrats have come out and said that the military budget should be frozen, but I am saying that there is a good argument that it could be held constant without harming our service members or our military readiness.  At the very least, it is incumbent on Republicans to do something more than say, "We want to spend more money on the Pentagon, and anyone who disagrees with us hates America."

In any case, CHIP is about to run out of money completely unless Congress acts.  There is no misallocation problem.  There is no bloat.  There are poor children who need adequate health care and who were receiving at least a bare minimum, and now they might be cut off.

Another way to say this is that, on a straight up-or-down vote, a person could in good conscience vote nay to an increase in military spending, but no person with an ounce of humanity could vote nay on CHIP funding.  We can confuse the issue by bundling various choices together, but the bottom line is that Republicans are tying the fate of American children to an increase in an already-enormous military budget -- and refusing to deal with the Americans-in-fact Dreamers to boot.

That there is still a way for the Republicans to turn this into a political win is depressing, but this is what bare-knuckle politics in Republican-led Washington looks like.


Michael C. Dorf said...

Some readers may wonder why Prof. Buchanan says that it would take years for litigation to establish that DACA is unconstitutional (and that they might never reach that conclusion). After all, these readers might recall that the Fifth Circuit held that President Obama exceeded his authority with respect to immigration and that the pre-Gorsuch SCOTUS split 4-4 in the case. But Prof. Buchanan is right. That case involved a different program, that goes by the acronym DAPA (as well as some expanded provisions of DACA). Judge Alsup's opinion enjoining Trump's rescission of DACA explains the difference:

John Barron said...

If I'm a R strategist, I have the House pass a CR that funds CHIP, doubles funds for immigration enforcement, imposes harsh fines for those caught here illegally and those who hire them, mandates E-Verify, and empowers private citizens to prosecute employers (qui tam actions can be made profitable) if the DoJ won't.

Kick the DACA can down the street.

All the Rs have to do at that point is say that they will trade DACA protection for an end to chain migration.

A practical win ... and a polemic one. While most people want a solution for the DACA kids, few are enamored with the lack of immigration enforcement.

John Barron said...

Prof. Dorf:

Having read Alsup's decision, I was singularly unimpressed. I am in agreement with Josh Blackman: Anything Obama can do sua sponte, Trump can undo. There's no warrant for the notion that POTUS's (alleged) ethnic animus is constitutionally relevant to his right and duty to take care that the law be enforced. For good or ill, we have immigration laws and thereunder, the DACA kids have no right to be here.

(This goes back to the LC debate, wherein you insist that "law" is whatever a judge like Alsup finds in his Depends at the end of the day. Change "Alsup" to "Gorsuch," and you understand why this discomfits me.)

There is a solution to this problem, but fixing it is above Judge Alsup's pay grade.

David Ricardo said...

I am confused.

With respect to prosecutorial discretion, a concept that seems to be at the heart of the legal discussion on both DAPA and DACA, does the government have the right to engage in it or not?

And if the government does not have prosecutorial discretion per DAPA how does it have prosecutorial discretion with respect to state marijuana laws. In a most cowardly action Sessions, contrary to public understanding, did not order the Justice Department to go after marijuana producers and sellers in states where it was legalized, but left prosecution up to the individual discretion of the local federal prosecutors. Huh? Way to take a stand Jeff.

And finally, anyone who has to put the term 'alleged' either in or out of parentheses with respect to 'ethic animus' on the part of the current President must not be paying attention. And it seems to be pretty settled law that selective law enforcement or legal action based on religion and/or ethnic grounds is likely Unconstitutional. It is certainly Un-American.

Finally, no one is arguing the legal right of DACA kids to be in this nation, the argument is that they have a moral and ethical right to be here and that the law must be changed to accomodate that. If prosecutorial discretion is allowed and followed that would give them the legal right to be here. If not or if Republicans choose not to conduct prosecutorial discretion the law must be changed to allow them legal status. Doing otherwise betrays the very ideals upon which the United States was founded and exists.

Joe said...

The prosecutorial discretion matter might have been addressed in a past entry.

Overall, it was my belief that Obama had the discretion to put forth this policy. Trump can end it, but as noted, that would be an immoral and unethical approach.

My understanding is that a key district court hearing turned on the argument one of the policies was unconstitutional & thus the process used to end it was not allowed. Likewise, many states in part argued that Obama's policy was set up using an illegitimate process. A specialized argument on both ends.

There also seems to be an argument made that a limited number of benefits resulting from Obama's policy is harder to defend. A post clarifying such matters would be helpful.

John Barron said...

What Obama gave, Trump can take away. Given that he is charged with enforcing our immigration laws. there is no reason why he can't end DACA. Whether a remedy should issue is a question for Congress, not POTUS or the courts.

DR: "Doing otherwise betrays the very ideals upon which the United States was founded and exists."

Since when did you become the final arbiter of what our ideals?

A hundred years ago, we needed unskilled labor. Today, we need skilled labor. Better to import the people we need.

"Though as a group the number of foreign-born kids graduating college has grown faster than native-born, the children of low-skilled immigrants, particularly Latinos, are struggling. Instead of climbing the income ladder, they are slipping down. Between the second and third generation, Hispanic high school dropout rates go up and college attendance declines. Canada, Australia, and several other countries have introduced a points system giving preference to skilled immigrants precisely to avoid this scenario.

The "vulgarians" have a point. We need to craft an immigration policy that puts our interests first. Ending chain migration, requiring e-Verify, and sending the parents of DACA kids home are reasonable positions.

John Barron said...

When you put it this way, the DACA proponents' position is comical:

"The district court’s unprecedented order requires the government to sanction indefinitely an ongoing violation of federal law being committed by nearly 700,000 aliens—and, indeed, to confer on them affirmative benefits (including work authorization)—pursuant to the DACA policy." [US pet. 4 cert.]

This problem needs a legislative solution. Yesterday.

John Barron said...

Mexican immigrants have long had and continue to have the lowest rate of naturalization - only 42% of permanent residents choose to become US citizens (up from 38%!). A very nationalistic people, with next-door convenience.

It's 75% for all non-Mexican immigrants combined.

Hondurans, Guatemalans, Salvadorans, Mexicans. They don't seem to want to be here.

Shag from Brookline said...

I'm going to re-check the footage of Trump's down escalator trip to announce his candidacy as a GOP candidate for the 2016 presidential election to see if John accompanied him on that trip. Regarding John's:

"A very nationalistic people [Mexican immigrants], with next-door convenience."

I recall FDR's "Good Neighbor Policy."

Now how did that work out? Recall the Zoot Suit Riots in CA around the time US entered WW II?

Was the Monroe Doctrine paternalistic?

Perhaps some people were nationalistic because of the way they were treated when needed for stoop labor but then rejected when no longer needed.

John Barron said...

Never really fit that well in either Party, Shag.

On immigration, imho, we should be more like Australia. A merit-based system, and zero tolerance for illegals. Why is that wrong?

Since Latino illegals are mostly coming here for work, we should reinstate the bracero program. Australia requires that you have a sponsor to work there; why is this such a bad idea?

Not sure I see the relevance of your references to ancient history. Could you be less opaque?

John Barron said...

Shag: "Was the Monroe Doctrine paternalistic?"

More like, motivated by self-interest. And all-but-irrelevant at the time, as we didn't have a navy capable of enforcing it.

As for imperialism, read War Is A Racket by Maj. Gen. Smedley Butler, USMC, and get back to me. Our military is the "muscle" for our plutocrats, and I generally oppose its use.

John Barron said...

They have a point, Shag.

"Chain migration is one of the biggest problems in our immigration system today. Current law allows legal permanent residents and American citizens to sponsor both their immediate and extended family members for immigration to the United States. In other words, our system prioritizes people based on their family ties, instead of their ability to contribute to our nation’s economic well-being. For some categories, like spouses, minor children, elderly and disabled parents, this makes sense. Family is the bedrock of our society, and immediate families should be together.

But unlike other advanced industrialized countries, our nation also gives preferences to the extended family members of citizens. While well intentioned, this policy has had some unfortunate consequences. This policy has spurred a wave of mostly unskilled immigration into our country. Today, only one in 15 of the more than 1 million immigrants who are admitted every year are given a visa because of their job skills or entrepreneurial ability. The other 14 immigrants are admitted without regard to their skills. That means that every year we are admitting hundreds of thousands of workers with almost no consideration for the impact their immigration will have on American jobs and wages. That is one of the reasons why polling has shown that over 70 percent of Americans favor limiting chain migration to only the spouses and minor children of legal permanent residents and citizens.

This policy puts downward pressure on the wages of people who toil with their hands, who work on their feet. Americans with high school-level educations have seen their wages fall by 2 percent since the 1970s, while inflation has made the cost of living even higher. For Americans who haven’t finished high school, it’s even worse. Their wages have fallen by nearly 20 percent.

This trend will only get worse if Congress grants legal status to DACA recipients without ending chain migration."

Your response?

Shag from Brookline said...

John, you obviously share the views of Trump and his senior advisor/white supremacist Stephen Miller on the Down Under immigration policy; you seem to fit well with that party. Here's a link:

that I found of interest. While you may have been assigned (self- or otherwise) as a troll to push this policy at this Blog, the immigration issue will not be resolved here. So troll away, perhaps even with some entertaining Austinian quotes.

Personally, I'm imagining a NY Post front page with "STORMY: WHETHER?" and appropriate photos.

John Barron said...

Shag: "While you may have been assigned (self- or otherwise) as a troll to push this policy..."

How juvenile.

As you well know, my personal hobby-horse is originalism. On tax and economic policy, I am fiercely progressive. But on this topic, I am persuaded that your side does not have the stronger argument.

Why can't I say that?

Shag from Brookline said...

John, you have said it, Trump has said it, and Stephen Miller has said it. One doesn't have to read between the lines for this trio's underlying message. As for your hobby-horse, you are facing backwards in its saddle to that time when the current immigration issues did not exist (although there were chained immigrants involved), ignoring the changes that would have been noticed if facing front. I don't have a solution to the current immigration issues. I'm far from convinced that Australia has the answer. (What's the history of Australia's founding white population as compared to the Colonies in America? Was it merit based?) Canada's system of merit permitted many more Syrian refugees than did America, suggesting a balance. But the issues will not be resolved here. The TrumpShutDown was Steve Miller anti-DACA inspired, which takes us back to the underlying message of the fabulous trio.

John Barron said...

Shag: "John, you have said it, Trump has said it, and Stephen Miller has said it."

So, we're not allowed to have individual opinions? I don't agree with Dolt45 on much, but have to concur that our present system of chain-immigration does not serve our own national interest. And I have stated why.

Why can't I do that?

I'm used to getting kicked off RW blogs for my viewpoints. But here?

John Barron said...

Shag: "I don't have a solution to the current immigration issues. I'm far from convinced that Australia has the answer."

Aus has a unique problem: a lack of water. See also, California and Cape Town. Here in flyover country, we understand the implications of limited resources. They can't allow hordes of foreigners overrun the place. For them, it is about survival as a nation.

Try to imagine America with a billion people.

This debate is about what our country will look like fifty years from now. And it isn't about race or ethnicity. It's about raw numbers.

Shag from Brookline said...

Malthusian theory meets global warming. But it isn't about race or ethnicity, only numbers? Depends upon how the numbers are determined. Hordes? Or is the debate about following up on a foundation of Trump's 2016 election? Build that wall all around America's borders, including along oceans also serving as seawalls against the rising tide of global warming, and these hordes? Trump would open national lands to development and presumably population increases, which perhaps could bring America to a billion people, but of course the right people?

Can we expect more MAD MAX movies? Should we chain immigrants and remove them (as contrasted with earlier chaining and introducing immigrants)? Are we in a Tantonian America?

Trump - and Stephen Miller - rejected global warming, ignoring long-term issues. Politically can we expect looking ahead 50 years, when long-term planning for most politicians is the next election? Why we can't get debates in Congress on immigration?

So Chicken Littles will pop up with their Skies are Falling hyperbole. There were concerns with hordes of Irish Catholics, hordes of Germans, hordes of Italians and other southern europeans over the years.

Water issues? Time to catch Chinatown again.