Another Shutdown? (A Dorf on Law Classic)

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.