In all the drama and commotion over the government shutdown, now in its third week, with 800,000 federal employees going without paychecks and services disappearing by the day, all prompted by President Trump’s insistence on funding his proposed Mexican border wall and Congressional Democrats’ refusal to provide it, has anyone stopped to notice how frankly ridiculous this whole system has become? How can it be that here, in the United States of America, we have a rule that demands literally closing the entire Federal government, as self-defeating an outcome as anyone can imagine, over a routine technical accounting glitch?
Who thought up this crazy idea? Certainly not George Washington nor James Madison. During the first 194 years of the American Republic, from 1787 to 1981, government shutdowns NEVER HAPPENED. Our country survived the Civil War, the Great Depression, and World War II, all without anyone ever once shutting down the government.
And no, it's not that we never had accounting snafus in Washington before 1980. But up until that year, no President or Attorney General ever took the crazy position that a gap between agency appropriation bills -- the expiring of one coming a few hours or days before enactment of the next -- amounted to a doomsday machine for politicians to hurl about Capitol Hill, causing the
government to lock its doors.
Then came Jimmy Carter and his then-Attorney General, Benjamin Civiletti.
In April 1980, faced with a possible funding gap for one small agency, the US Federal Trade Commission, President Carter asked Civiletti what the law required. No president had ever raised this question before in this formal way. Civiletti, in response, issued a legal opinion giving his reading of the Federal Antideficiency Act (31 USC 1341 and 1342) -- a law on the books since 1870. According to Civiletti, this ancient law required that "during periods of 'lapsed appropriations,' no funds may be expended except as necessary to bring about the orderly termination of an agency's function" -- that is, a shutdown, with a few exceptions for emergencies. (see 43 U.S. Opinions of Attorney General, 224 (1980) and 293 (1981).)
Many people at the time disagreed with Civiletti. Funding gaps -- mostly small ones affecting a single department or two -- had occurred at least seven times between 1950 and 1980, with none resulting in a shutdown. And nobody ever complained about it. In four of those cases, Congress itself simply shrugged and voted to ratify the work done by the government employees and made sure they got paid. When a funding gap threatened the US General Accounting Office in 1979, the longtime (1966-1981) Comptroller General of the United States, Elmer Staats, ruled that no shutdown was needed since Congress, in enacting the 1870 statute, never intended that federal agencies be closed. Instead, both GAO and OMB had instructed agencies to limit new contracts or financial commitments during these periods -- but to keep the doors open.
In other words, there was nothing inevitable or necessary about government shutdowns. It was simply one lawyer's opinion. Still, with Civiletti's view formally established as precedent, the doomsday device began to work:
Today, in 2019, we take it for granted that the doomsday machine is enshrined in law, principle, or constitution. If anything, the threat has expanded as Congress progressively fails to pass normal spending bills on time. In fact, many people now justify government shutdowns as a normal, legitimate legislative tactic, an "action-forcing mechanism" that compels Washington to face difficult choices -- as President Trump describes the current contest over the Mexican border wall.
Still, do we really need political carnivals like this month's cliff-hanger? Don't they only make the country look weak and silly to the world? Don’t they only punish innocent bystanders (including government contractors often never reimbursed) for the failure of political leaders to do their jobs? Is this really the best way we can come up with to make decisions?
Maybe it's time to deep-six the 1980 Civiletti opinions and restore sanity to the system. How hard can it be to turn off the doomsday machine?