“The
exclusive privilege of originating money bills will belong to the House of
Representatives.” (Alexander Hamilton,
The Federalist Papers, No. 66)
AMERICA
IS A CHILD OF THE ENLIGHTENMENT. But
reason is anathema to some. And they
divide the idea and the reality.
I
This is not something new. The President sends the budget to Congress in
the beginning of the calendar year. The
model, which Alexander Hamilton mentioned in The Federalist Papers as “the preparatory plans of
finance,” has been followed. (The
Federalist Papers, No. 72) Under the
Budget and Accounting Act of 1921, the fiscal year began on the first of July. Now, under the Congressional Budget and
Impoundment Control Act of 1974, it begins on the first of October. But, even with the additional time, the
twelve appropriations bills do not get passed on schedule. A continuing resolution, a measure to keep
spending at their current levels, becomes necessary.
II
“The representatives of the people, in a
popular assembly, seem sometimes to fancy that they are the people themselves, and betray strong
symptoms of impatience and disgust at the least sign of opposition from any
other quarter; as if the exercise of its rights, by either the executive or the
judiciary, were a breach of their privilege and an outrage to their
dignity.” (Alexander
Hamilton, The Federalist Papers, No. 71) But
the power of the purse does not permit the Legislature to stop the other
branches from exercising their respective powers. Therefore an effects test is necessary.
The Fundamental Charter places limits on
what Congress can do in respect to the other branches. The President’s salary “shall not be
increased nor diminished during the period for which he shall have been
elected….” (Article II, Section 1,
Clause 7) The same applies to “the
principal officer in each of the executive departments.” (Article II, Section 2, Clause 1) Likewise, judicial salaries “shall not be
diminished during their continuance in office.”
(Article III, Section 1) The
implications cannot be ignored: Any
threat to their independence is inconsistent with “the manifest tenor of the
Constitution.” (Alexander Hamilton, The
Federalist Papers, No. 78)
III
Everyone who takes the oath to uphold the
Constitution has made a commitment to the goals in the Preamble.
The serious-minded may approach the matter in a variety of ways. They cannot, in good faith, deny the
impossibility of achieving them without a budget. Legislators fail in that regard when they
decide to showoff instead of showing up.
Then the legitimacy of their efforts—and commitment to the supreme law
of the land—is questionable, because the Government of the United States must
function.
IV
Darkness comes without sunset. Who knows the time of day? For a mystery sits on the horizon.
V
“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.” (OFW, 01-25-2019)
In March 1980, in response to a question
from Representative Gladys Noon Spellman (D-MD) about the Antideficiency Act,
Comptroller General Elmer Staats wrote, “We do not believe that the
Congress intends that federal agencies be closed during periods of expired
appropriations.” (Government Executive, 10-27-2022)
In April, Attorney General Benjamin
Civiletti disagreed. “One hundred and ten years after its enactment,” as
M.A. Davis, an historian noted, “he found for the first time that the
Antideficiency Act allowed for no government agency to operate without funding.” (Time, 11-16-2023)
“It is my opinion that, during periods of
'lapsed appropriations,' no funds may be expended except as necessary to bring
about the orderly termination of an agency’s functions, and that the obligation
or expenditure of funds for any purpose not otherwise authorized by law would
be a violation of the Antideficiency Act.”
(Opinion of the Attorney General, 04-25-1980)
One hundred and ten years after its
enactment, the Attorney General made another decision for the first time.
“...(T)he Department of Justice will take
actions to enforce the criminal provisions of the Act in appropriate cases in
the future when violations of the Antideficiency Act are alleged. This does not mean that departments and
agencies, upon a lapse in appropriations, will be unable logistically to
terminate functions in an orderly way.” (Opinion of the Attorney General, 04-25-1980)
Civiletti was technically right and
totally wrong, for he missed the big picture.
“I couldn’t have ever imagined these
shutdowns would last this long of a time and would be used as a political
gambit,” he said. My opinion “was a
purely direct opinion on a fairly narrow subject and has been used in ways that
were not imagined at the time.” (The Washington Post, 01-19-2019)
Every question—“Why do lawyers not have
lemonade stands?”—does not merit serious research. Just say, “They prefer turnips.”
“The whole idea that someone would shut
down government in order to gain leverage over a political opponent was not
part of the discussion in 1980,” said Kenneth D. Ackerman, an historian and
lawyer. “The framers of the Antideficiency Act of 1870 did not conceive that
they were making a political weapon.” (The Washington Post, 01-19-2019)
VI
One way to avoid problems in the future is
to amend the Congressional Budget and Impoundment Control Act of 1974 so that spending
stays at current levels, with a cost of living adjustment, until a budget is
passed. And to bring down the curtain on
a related drama, amend the Act and make the Gephardt Rule law. It simply stated that the debt ceiling was
“deemed to have passed” when a budget resolution was approved.
In the event of congressional failure, it
may be necessary for the President to raise the debt ceiling and instruct the Attorney
General to review and rescind the Civiletti opinion on the Antideficiency Act. Duty requires nothing less.
“Energy in the Executive
is a leading character in the definition of
good government.... A feeble Executive
implies a feeble execution of
the government. A feeble execution is but another
phrase for a bad
execution; and a government ill executed, whatever it
may be in theory, must be, in practice, a bad government.” (Alexander Hamilton, The Federalist Papers,
No. 70)
VII
The playacting must end. The consequences of failure are
serious—shutdowns, America’s credit rating downgraded, and added cost. Thus, when Republicans control the House of
Representatives, the debate cannot be defined in their terms, if “fiscal
responsibility” is to be more than a GOP catchphrase. The test is to align the budget with the
goals of the Preamble and make the idea and reality one.
(c)2024 Marvin D. Jones. All rights reserved.
V
https://ofwlaw.com/government-shutdowns-who-dreamed-up-this-crazy-idea/ [01-25-2019]
https://www.govexec.com/management/2022/10/time-lawyer-invented-government-shutdown/378935/ [10-27-2022]
https://time.com/6326996/government-shutdown-history-2/ [11-16-2023]
https://www.justice.gov/file/22281/download [Opinion of the Attorney General, 04-25-1980]
https://www.washingtonpost.com/history/2019/01/17/meet-democrat-who-paved-way-government-shutdowns-yes-democrat/ [01-19-2019]
VI
https://marvindjones.blogspot.com/2023/05/notes-for-may-9-2023-debt-ceiling.html
