by Neil H. Buchanan
Note to readers: Because I still celebrate Christmas, I am taking the week off from writing. (Who am I kidding? Even if I didn't celebrate Christmas, I'd still take this opportunity to recharge my batteries.)
For readers who want to think about the ongoing Trump-owned mess of a government shutdown, I have reproduced below a column that I published here on January 18 of this year, discussing what would turn out to be only the first of three 2018 government shutdowns. The details change, but the big themes remain.
I hope that you all enjoy this Dorf on Law Classic.
"Opening Up About Shutdowns"
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.
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2 comments:
Perhaps a comparison might be appropriate for stock markets results for Jan. 8, 2018, with such results for Dec. 24, 2018. Three shutdowns and you're out? Maybe Diane and her co-rhymer might adapt "The Twelve Days of Christmas" for the current shutdown, now in it's 4th day, informing us what Trump has given (or taken away from) us. Maybe Trump will revive the coal industry with daily increasing gifts of lumps of coal. While Trump keeps wailing for his wall, hopefully Congress (aka its Democrats) will keep whaling on Trump's wall.
With the Trump shutdown, has Trump won "The War on Christmas"? Fox & Friends may remind him. Tired of Trump's "winning" - or his whining? During the 2016 campaign, Trump claimed to be smarter than the Generals. Then he hired Generals and later "fired" them. Mattis' resignation letter was a Christmas gift to America. Trump's then "firing" of Mattis was Trump's XMAS gift to Mattis.
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