The Constitution created the executive branch and Congress as co-equal branches of government, each with the ability to negate the action of the other. The founders assumed that inaction was preferable to hasty bad decisions.
But what the founders failed to envision is the corrosive power of inaction when the president, the speaker of the House or the Senate majority leader refuse to enact a budget and shut the government down indefinitely.
There is no institutional check on inaction. The only solution is acquiescence. It’s time to restore a balance.
Congress and the president could avoid all future shutdowns by enacting a law providing that in the event of an appropriations lapse, a continuing resolution automatically kicks in to fund the government at current levels until a permanent appropriation is enacted.
That way, we would move back to budget decision-making based on ideas, data, persuasion, passage of legislation and potential vetoes by two co-equal branches of government. In our current state, success is based on who most successfully blames the other side for a shutdown, whose constituency cares least about the failure to deliver public services during one, and who is most subject to coercion.
An automatic continuing resolution would eliminate the collateral damage caused by holding federal employees hostage. They are innocent bystanders. Those furloughed lose pay temporarily, and their suffering is exceeded only by those required to work without being paid in a timely fashion. Both groups struggle to pay their bills.
The public suffers from undelivered or diminished services: long security lines at airports, reduced food safety inspections and limited operations at national parks, to name just a few consequences.
The public is also damaged by a slowing economy. Kevin Hassett, the chairman of the Council of Economic Advisers, said this week that the shutdown was reducing quarterly economic growth by 0.13 percentage points for every week that it lasts.
This is no surprise. The Office of Management and Budget has reported that the 17-day shutdown in 2013 resulted in $2 billion in direct costs to the government, and Standard and Poor’s estimated the total to be $24 billion if costs to the private sector are included.
We can’t blame the founders, who couldn’t have foreseen the consequences of shutting down all or part of a government of nearly 2 million employees serving a population of 350 million people. We can, however, ask Congress to eliminate the lasting damage to federal employees and the public.
The first six lapses in federal funding—one during the Ford administration in 1976 and five in the Carter administration—were simply ignored by Congress. Federal employees continued to work, the public continued to be served, and a budget was ultimately enacted.
Then Attorney General Benjamin Civiletti issued a series of opinions in 1980 and 1981 stating the government may not operate when government funding lapses. The subsequent 15 lapses have been fought using the new coercive power of inaction. This has culminated with President Trump stating that he’s willing to shut down the government for “months or years” if his border wall proposal isn’t funded.
It is time for Congress and the president to lay down their arms in the interest of eliminating the collateral damage and restoring the balance of power envisioned by the founders. It worked from 1976 to 1980. It can work again. Enact a law to automatically fund the government if lapses occur until a permanent budget is approved. No more government shutdowns.
Robert M. Tobias is director of business development for the Key Executive Leadership Program at American University, and the former president of the National Treasury Employees Union.