by Neil H. Buchanan
As the insanity of life in Donald Trump's world takes an even more extreme turn, we now find ourselves asking whether he might actually have meant it when he said that he will keep the government shut down for months or years unless he receives funding for his pointless and wasteful wall. What could be weirder than this?
Well, the latest bizarre idea within this bizarre new reality is the claim that he might invoke presidential war powers to use the military to build his wall. As of this morning -- and subject to any forthcoming tweets, off-the-cuff comments yelled at reporters, or simply a change of the subject -- the possibility of presidential unilateralism is still on the table.
As a matter of law, that ridiculous idea has already been roundly rebuked, including in a very good op-ed by Yale law professor Bruce Ackerman. If legal analysis matters anymore, Trump will not have a leg to stand on. (On the other hand, Jack Balkin's "on-the-wall/off-the-wall" turn of phrase -- recently discussed here and here on Dorf on Law -- becomes all too literal.) Harry Truman could not seize steel mills during wartime, and Trump cannot have the military violate the law to respond to a non-crisis on a peaceful border.
All of this discussion of shutdowns and presidential unilateralism, however, has brought to mind a discussion that briefly arose during the October 2013 government shutdown, which some readers might recall was Ted Cruz's entry point into the national consciousness as an obnoxious and destructive jerk, making his Republican colleagues hate him even more than they already did.
At that time, the dynamic was quite different, as I will explain in a moment; but there was some discussion about the possibility of President Obama taking unilateral action to end the shutdown. Would that have been a good idea? And even if it was, would doing so have set a precedent for Trump to take more extreme actions now?
During the 2013 shutdown, I spoke on a panel at the National Constitution Center in Philadelphia. One of the other two panelists was Princeton historian Sean Wilentz, who expanded on an argument that he had recently made in Rolling Stone to the effect that the president had the responsibility to prevent the government from shutting down even if the political process had ground to a halt.
As I explained in a Dorf on Law column shortly after the Philadelphia panel, Wilentz's idea was based on the thought that a president must put down an "insurrection," which is what Cruz's willful decision to shut down the government amounted to. It is one thing to say that the two sides to a budget debate can drive hard bargains, but when one side decides that "defunding Obamacare" is the only way to reopen the government, we are no longer having a normal policy dispute.
The solution, Wilentz said, was to have the president keep the government open while budget negotiations continued, preventing damage to the public (in his role as the nation's chief executive) while allowing the political process to continue. As I noted in my column, Wilentz himself was at pains during the discussion to make clear that he was not endorsing a "unitary executive" all-encompassing notion of presidential power, and I was intrigued yet uncomfortable with the idea.
Two weeks later, after analyzing the reasons for my discomfort, I wrote a second column to repudiate my previous flirtation with the insurrectionist view. A big part of the problem is that the same person -- the president -- would serve as both a player and the referee, negotiating on his party's behalf with the other party's leaders, but then expected to be able to make the neutral judgment that the other side was being so unreasonable in their demands as to be engaging in insurrection.
The broader problem, however, is that there truly was no limiting principle to allowing a president to unilaterally rewrite the law when he can make an argument -- even a very good argument -- that doing so is in the public interest. The president cannot be allowed to ignore the law, or to invent it on his own.
Longtime readers of Dorf on Law, however, might ask whether that is not what Professor Dorf and I have argued (quite strenuously and for years) a president should do if Congress were ever to refuse to increase the debt ceiling as needed to prevent a possible default. Actually, no.
Under the Buchanan-Dorf analysis, the president would act in the face of a political standoff -- but only to do what Congress had already ordered him to do through the appropriations laws. He would defy one of Congress's decisions (not to increase the debt ceiling) only because doing so would allow him not to defy Congress's much more intricate and consequential decisions about taxing and spending -- that is, he would take only the least "legislative" path, which also would be the most easily undone by subsequent legislative action.
During a shutdown, by contrast, the necessary appropriations laws have not been passed at all. That is why federal workers are not receiving paychecks, tax refunds are at risk, national parks are closed or understaffed, and all the rest of the now-familiar depressing litany of consequences of a shutdown are suddenly very real.
Unilateral presidential action would thus not be a matter of saying, "I have conflicting orders from Congress, and I am choosing to follow them in the way that best preserves the separation of powers." Instead, the president would say, "I don't like having the government shut down, but I am not willing to give the other side what they demand, so I will act as if the now-expired appropriations laws have not expired."
Recall, moreover, that the current shutdown occurred only when Trump (goaded by the Fox News presidential advisory board -- er, talking heads) decided that he would not support even a short-term continuing appropriation into February. He wanted his wall NOW, and he was willing to shut down part of the government to force Congress to give it to him.
Under current circumstances, then, the Wilentz analysis is not exactly on point. The problem now is that the necessary appropriations laws have not been passed, but it is not the president who wants to keep the government open in order to allow negotiations to continue. Trump is the one who wants to use the shutdown as leverage in negotiations. He has no reason to unilaterally reopen the government, because he could have appropriations bills on his desk within the hour, if only he asked for them.
What Trump wants is to rewrite the laws in a much more aggressive way than Wilentz's insurrectionist analysis ever contemplated. Trump would spend money that has not been appropriated, and he would do so by taking it away from other projects that Congress did approve, and he might also have the military engage in domestic activities that are prohibited by law. He would not be saying that he has to act unilaterally to keep the government open but rather that he must by fiat rewrite Congress's spending priorities.
Would Trump's position be any stronger if President Obama had ever acted unilaterally, either with respect to the debt ceiling (a la Buchanan-Dorf) or in the face of a Republican-led shutdown (a la Wilentz)? Not as a legal matter, for the reasons just stated. As a political matter, however, it is possible to imagine that Obaman unilateralism could have led us onto a dangerously slippery slope.
Setting aside the butterfly effect -- that is, ignoring that Trump never would have been elected in 2016 if there had been a debt ceiling crisis and Obama had responded as we recommended (with all of the consequent political repercussions), or if he had kept open the government by fiat during a shutdown -- the answer seems pretty clearly to be that any precedent of unilateralism would be rather difficult to contain, especially when the president is an impulsive fool like Donald Trump.
Even the much cleaner -- because it is self-limiting -- Buchanan-Dorf approach to a debt ceiling crisis would have been spun politically as an act of presidential unilateralism. As I warned again and again at the time, Republicans seemed intent on setting an "impeachment trap" by forcing Obama's hand. Although it never reached that point (because Obama won the stare-down with Republicans each time), Obama would have correctly been accused of violating the law by issuing more debt than allowed by statute.
His defense -- that he had no choice, because the alternative ways to violate the law were even more offensive to the Constitution -- would have been accurate but all too easy for Republicans to distort. "See, he even admits that he broke the law!" And because the Wilentz approach to ending a shutdown would have been so lacking in a principled way to draw the line, an Obama action along those lines would even more readily have become a way for Trump to claim radical powers.
All of which leads to two quite different lessons. First, it was a very good thing that Republicans relented every time that they threatened to create a debt ceiling crisis. If they had not backed down, the president truly would have been in an impossible situation, and even if he had ignored our advice and instead violated the spending laws, he would still have been seen to have broken the law. Although he would almost surely have survived an impeachment trial, that in itself would have emboldened a future would-be tyrant to say that the president can break the law when he wants to do so.
Second, and much more interestingly, the shutdown situation presents a case in which the fear of slippery slopes is front and center. People of good faith could, if Republicans had not reopened the government in 2013, have followed Wilentz's reasoning and justified an Obama move to reopen the government. Again assuming that he would have survived the ensuing political freakout and likely impeachment attempt, however, his act of public service would have set a very bad precedent indeed.
But, one might ask, so what? After all, I am one of the people who often argues that political precedents and slippery slopes are overstated. In my column walking back my tentative endorsement of Wilentz's analysis, for example, I noted that Democrats and liberals often imagine that their adherence to principle will keep Republicans from doing their worst when they have the chance to do so. I have no doubt, for example, that Republicans would have killed the filibuster to install Neil Gorsuch on the seat that they stole on the Supreme Court whether or not Democrats had weakened the filibuster for lower court judges.
Here, however, we see the power of knowing what is still beyond the pale. No president has done anything close to what Trump is talking about doing, and there is no political spin that could make it appear otherwise. Trump would be doing something truly unprecedented and thus politically explosive.
Trump might choose to do so nonetheless -- and, as I have argued, he might in the future choose to ignore the law in even higher-stakes situations, such as refusing to accept the results of the 2020 election -- but if he does, he will be taking an enormous risk. Even the Supreme Court that approved his Muslim ban might not come to the rescue.
In any event, if Trump does this, and especially if Republicans back him up, we will know that we have truly and finally entered an entirely new political universe.