How the Shutdown Europeanized the US Constitution and How to Restore It

Democrats and Republicans, by entering and exiting the 2013 “government shutdown” without regard to America’s traditional Constitutional practices, practically instituted among us the European practice of single “crisis” votes that enable or disable governments. The remedy lies in removing any doubt as to what the US Constitution means.

In Europe and in all parliamentary systems, the Government submits a budget that covers all its operations to parliament once a year. This event is partisan from start to finish. The Government, consisting as it does of the majority Party’s leaders, puts into the budget neither more nor less than suits its priorities – all of them. The minority counts for zero. The parliament then votes on party lines. The vote is a casus foederis: a vote of confidence. If the budget does not pass the government falls, new elections are called, and the resulting majority works its arbitrary will.

Until our own time, America was exceptional: From 1789 until the 1990s, Article I sect. 9 of the Constitution, “No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law” meant that the entire Congress considered, individually, each of the executive branch’s requests for money as well as proposals made by members regardless of party. Rarely would votes on individual appropriations be along party lines. Nearly always, the Congress would work as James Madison’s Federalist #10 had intended, “to refine and enlarge the public view.” The failure of any appropriation to muster a majority in both houses merely meant that there would be no money or authorization for that measure. Never, ever, could the failure of an appropriation cause a national crisis, never mind “shut down the government.”

But as I explained in an earlier post the latter day practice of rolling all appropriations into a single “Continuing Resolution” that funds the entire government reduces the Congress to choosing between doing neither more nor less than what those who impose that “resolution” want, or “shutting down the government” – a choice between accepting tyranny and taking a chance on anarchy. This is especially the case in the American non-Parliamentary system, since the failure of such a “resolution” does not result in new elections.

The 2013 “shutdown” happened because a Democratic President and Senate majority made sure that no appropriation bills for fiscal year 2014 would be enacted prior to the end of fiscal 2013, and hence that all funds for 2014 would be rolled into a single “Continuing Resolution.” This included funds for “obamacare,” which would surely not have been appropriated by the House of Representatives if presented singly. Republicans objected to “obamacare” in the only way possible given the fact that it was included in a CR, namely by opposing the CR.

During the “shutdown,” the House of Representatives passed and re-passed appropriations for any and all parts of the government. But President Barack Obama and Senate Majority Leader Harry Reid refused them again and again, chastizing Republicans for not voting on the one, single appropriation that the Democratic Party had crafted. The words they used are significant. Obama: “we don’t get to pick and choose based on which party likes what…the government doesn’t work that way.” Reid: “ Republicans are …cherry picking the few parts of the government they like.”

Just as significant is that the Republicans did not rebut most vigorously that “cherry picking” the things for which the people should and should not pay is precisely, exactly the Congress’ duty, that getting to “pick and choose” what any legislator likes or dislikes is precisely, exactly the way that the US government had always worked and was meant to work. Instead, the Republican Establishment, including prominently The Wall Street Journal, denigrated and ridiculed those Republicans who stood in the Democrats’ way.

Thus the Republican Establishment’s acquiescence to the CR as a method of governance foisted upon America what amounts to a radical departure from the US Constitution and from American history. This Europeanization of American government is far bigger stuff than Obamacare.

The American people would not accept this, were they given the opportunity to pronounce themselves. But since neither Republican congressional leaders nor The Wall Street Journal think in such terms, proposing a Constitutional Amendment may be the only way to place this matter on the nation’s agenda.

To the Art. I sect. 9 text “No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law” the amendment would add “and no appropriation shall exceed in amount five percent of all the previous year’s appropriations combined.” That would eliminate the possibility of European-style government financing, and ensure that the government’s many activities would have to be separated for consideration in at least twenty appropriations bills, not just one. That is the way American government used to work and should work.

Merely proposing such an amendment would benefit the American people by forcing the likes of Obama and Reid to articulate why they object to it, and such as The Wall Street Journal why, having bewailed other aspects of America’s Progressive Europeanization, they have yet to notice the Europeanization of America’s government financing system.


A Jeffersonian Proposal for the Constitution

In the interest of starting a discussion about constitutional purpose, Sandy Levinson argues "We best honor the Framers, then, by exhibiting their own willingness to challenge the verities of their times and to cease our own often “blind veneration” for the Constitution they created. What has been long settled may not be subject to conversations about “meaning,” but it is surely past time that it be analyzed for its wisdom in a 21st century America." But, what we might ask, has been settled, and what is open for re-creation?