Thursday, January 31, 2019

Should Congress Outlaw Shutdowns?

by Michael C. Dorf

As I discussed in my last post, I think it unlikely that when the clock strikes midnight on Valentine's Day, the partial federal government shutdown will resume. To be sure, with Trump all (horrible) things are possible. Still, I regard two alternative scenarios as much more likely: (1) Congress adopts legislation that both extends DACA and TPS and contains funding for what can be characterized as a wall by Trump and a not-wall by Democrats; or (2) Congress adopts legislation that funds the government on a longer term basis, while Trump unilaterally declares a national emergency to fund his wall.

Even before the latest shutdown ended, members of Congress introduced bills to outlaw future shutdowns. Ohio Republican Senator Rob Portman introduced a bill--the End Government Shutdowns Act--that would renew existing funding levels for 120 days. In the event that no new funding legislation is passed, a 1% across-the-board funding cut would then occur, followed by further 1% cuts every 90 days, until new legislation is enacted.

As an alternative, Virginia Democratic Senator Mark Warner proposed a bill with the acronym Stop STUPIDITY Act. In the event of failure to fund the government in time, it would automatically renew existing funding levels, except for Congress and the office of the president, thus providing incentives for lawmakers (including the president, given his ability to sign or veto legislation) to act, while sparing federal employees and the public the pain of a shutdown.

Should Congress enact either the Portman or Warner bill? Let's dive in.

As between the two bills, I much prefer Warner's, because Portman's bill could become a backdoor means of cutting federal spending. If fiscal conservatives control the House or the presidency, or if they have a majority or a blocking minority (41 or more seats) in the Senate, they could simply refuse to fund the government--or specific programs they don't like--and let the automatic cuts occur. Those cuts are potentially more substantial than one might think, given that most agencies have various fixed costs. A one percent cut would end up being concentrated in some areas as a much larger cut.

Warner's bill runs a similar, albeit smaller risk, because funding freezes would be de facto cuts in periods of inflation or even population growth. However, the Warner bill's exceptions for Congress and the presidency should mitigate that risk by making failure to enact new appropriations measures too painful for Congress and the president.

Accordingly, if I were confident that the pain-inducing aspects of the Warner bill would make it simply a sword of Damocles--one that hangs but never drops--I would think it worth supporting. I do not support the Portman bill, nor would I support the Warner bill without its penalties for Congress and the president, because of the risk that either could make it easier for budget slashers to do their work.

One objection I have heard to any sort of anti-shutdown bill is that Congress oughtn't to give up its power of the purse. I agree with the premise behind the objection but not the objection itself. A properly structured bill--like the Warner bill--would leave the pressure on all of the key actors to actually come up with new funding measures.

Is there a constitutional objection? Not that I can see. Article I provides that "[n]o Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law." The combination of the prior funding bill and the anti-shutdown law itself would count as an "appropriation made by law."

There is also a temporal limit on appropriations in the Constitution: It empowers Congress "[t]o raise and support armies, but no appropriation of money to that use shall be for a longer term than two years." Could that be a problem? In principle, perhaps, but Congress has tended to fund the military even when other parts of the government are shut down.

Thus, the answer to the question that titles this post is yes, so long as the bill that passes does not end up as a means for backdoor budget cuts.

Before concluding, I want to add a word about the debt ceiling, which will spring back to life in just over a month. Most projections suggest that by using its now-customary "extraordinary measures," Treasury can forestall a default until mid-summer. Long-time readers of this blog know that Prof. Buchanan and I strongly favor repealing the debt ceiling and replacing it with a statute authorizing however much borrowing is needed to make up the difference between expenditures and revenues on hand.

In 2017, debt ceiling repeal got some unexpected support from President Trump. Given Trump's mercuriality, there is no good reason to assume he would still support debt ceiling repeal today. He might be goaded into opposing debt ceiling repeal by the right-wing Twitterverse or persuaded by some devil on his shoulder that he could use the threat of default to get funding for the Wall or some other evil project.

But in the event that Trump remains refreshingly reasonable on the debt ceiling, its full repeal would be only upside. Put differently, there are some circumstances in which the risk of a government shutdown is worth bearing--i.e., if the alternative is a no-shutdown law that unduly strengthens the hand of austerions; by contrast, there are no realistic circumstances in which the risk of a debt-ceiling-induced default is worth bearing.


Joe said...

"austerions" is a funny word

A law for grown-ups to prevent this from happening again would seem like a good idea. The idea of air traffic controllers working w/o pay is absurd, so it was not quite seen as a desperately necessary. But, here we are.

And, like the election of 2000 (which it turns out doesn't only happen every 100 years or so, give or take twelve years), we can't just let inertia lull us into not doing anything to prevent things in the fugue.

Joe said...

(I meant "future" but you know "fugue" might work.)

Shag from Brookline said...

Nat King Cole's "i'll Never Say Never Again" came to mind while reading this post.