Routing a political dispute to the courts is the constitutional equivalent of appealing to one’s parents for relief from the bully on the block.
This morning the government has shut down: Democrats in the Senate have refused to back a continuing resolution because it fails to protect against deportation children who immigrated to the United States illegally. 2018 is thus almost a mirror image of 2013 when the government also shutdown: then the House Republicans refused to back a continuing resolution because it did not include very substantial revisions to Obamacare. Neither the revisions to Obamacare nor protection for this class of illegal immigrants (unless bundled with other substantial changes to immigration law) could pass the House and Senate under regular parliamentary procedure. Hence the Democrats now and the Republicans then tried to take the operations of government hostage to get their way.
These kind of threats are not sound legislative practices. They disrupt the normal operations of government. Even worse, they permit a constitutional minority to use a kind of nuclear option to get what they want without the normal give and take in the legislative process. Unfortunately, given the polarization of our parties, we can expect more such hostage taking.
Most of the proposed mechanisms to prevent this kind of behavior would be ineffective. A pending bill would prevent members of Congress from collecting salaries during a shutdown. But similar state laws have not forced state budgets to get done on time and members of Congress are generally wealthier than state legislators. Senator Angus King has suggested Congress not be allowed to recess until it gets all its appropriation done in regular appropriations bills, but the prospect of spending more time in Washington is not likely to deter a determined partisan minority.
What is needed is to deprive hostage takers of the prize of the shutdown itself. The best way to do this is to have a law that would continually fund government at 85 to 90 percent of last year’s appropriations. That level of funding still preserves the ability of Congress to make realistic cuts to the budget. Indeed, as Mike Rappaport and I have argued, it facilitates this capacity, because, other things being equal, government shutdowns are disproportionately blamed on the party that is more opposed to big government.
Interestingly, over time the executive branch is itself moving toward tempering the effects of a shutdown, by classifying a greater portion of services as essential to health and safety and finding other ways to allow the public to enjoy what the government services they most enjoy, like visiting National Parks. When I advised the Justice Department on these matters, only a very few government workers could stay employed during a government shutdown. But now according to this report that number is very large indeed.
Nevertheless, blocking government funding still can help legislators who do not command a majority, because some functions of government are still impaired and because a public ignorant of what actually happens in a shutdown, believes a government shutdown is more disruptive than it actually is. Thus, even with recent executive action, a law assuring government funding at modest levels is needed to eliminate the enduring temptation of a minority to shut down the government in order do what it believes is necessary to save it.