America's replay of the collapse of Ancien Régime France continues apace, with much of the government still shut down — now the longest such event in history by a considerable margin — and no end in sight, all over President Trump's border wall temper tantrum.
However, perusing the list of previous shutdowns, one notices an interesting fact: They have all happened since 1980. Was there something that prevented shutdowns before — and could they somehow be made impossible again?
The answer is yes on both counts. This should be a top priority for Democrats if they manage to win in 2020.
Now, there were funding lapses in the few years before 1980, as President Carter squabbled with Congress over various things. But as this Denver Nicks article at Time explains, these did not actually shut anything down — instead, agencies just kept on trucking along their previous funding level, expecting that Congress would sort out the back money at some point. It was only when Carter solicited a legal opinion from then-Attorney General Benjamin Civiletti in 1980 about the topic that the current shutdown mechanism was created.
Civiletti reinterpreted the 1870 Antideficiency Act (which stopped agencies from deliberately spending more than their allotted funding, thus pressuring Congress into giving them more money) as forbidding agency operations without an explicit appropriation. His logic was clear enough: The "legal authority for continued operations either exists or it does not," and by his read of that old law it did not. The only reason they could spend money was to facilitate "orderly termination" of their operations.
The practical consequences of this argument were enormous, because the federal government does so many important things (like airline and food safety, border operations, tax collection, and so on). That's almost certainly why Civiletti issued a second opinion giving the president "leeway to perform essential functions and make the government 'workable.'"
Now, this addendum would seem to baldly contradict the entire premise of the original opinion — and besides, if Congress wanted to explicitly create a mechanism for shutting down the government when it fails to pass a budget (which was not the intention of the 1870 law) they had had 110 years to do so by that moment.
But nope! Civiletti basically created a whole new law out of whole cloth — one which enshrined an incredibly stupid budget procedure. No sensible country does things like this. In parliamentary systems, failure to pass a budget usually means an automatic vote of no confidence and new elections, while the government keeps ticking in the meantime. That is probably the best way of doing things — but the pre-1980 method of just leaving things going as they were if no budget is passed is still far superior than the current shutdown-prone mess.
As an aside, this is an excellent example of how moronic it is for the operations of a huge country to be determined by tendentious legal hair-splitting. No other peer nation hangs on the every word of its top court and legal authorities, because none has such a hugely overpowered legal-judicial system — for the obvious reason that you get constant appalling misrule by legal fiat. (To be fair, Civiletti told The Washington Post he wasn't expecting this: "I couldn't have ever imagined these shutdowns would last this long of a time and would be used as a political gambit.")
However, Democrats could get rid of the shutdown possibility forever with a new budget architecture. As Annie Lowrey describes, what we need is "automatic continuing resolutions." When Congress fails to pass a regular order budget — which is almost every time these days — it usually passes a continuing resolution or a sort of partial budget for a quarter or two. This mechanism would simply extend the current funding levels for, say, one quarter every time Congress fails to pass a funding bill. Thus government shutdowns would be prevented forever (unless a future Congress overturns the law, of course).
If Democrats take control of Congress and the presidency in 2021, this should be on the list of uncontroversial housekeeping items to take care of on day one — alongside abolishing the debt ceiling, statehood for Puerto Rico and DC, a national voting rights act, and so forth. Updating the budget structure to be more like functioning countries isn't exactly a left-right issue — it's more about trying to keep the shambolic American state putting one foot in front of the other — but it would also make the nation more resilient to irresponsible reactionaries like Donald Trump. And who doesn't like being responsible?
