Oct 1

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Constitution Check: Does the federal government have a constitutional duty to stay open?



Posted 6 months, 21 days ago.

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Lyle Denniston looks at the question of a constitutional obligation to avoid a partial federal government shutdown, and how James Madison would view the situation

James_Madison_croppedTHE STATEMENTS AT ISSUE:

“It’s time to govern. I don’t intend to support a fool’s errand at this point.”

 – Representative Charlie Dent, a Pennsylvania Republican, in a comment on September 29 on his unwillingness to prolong the effort to force a shutdown of the federal government.

“When you are trying to get something done in a democratic process, what we have learned over the years is that it responds when there is pressure on it. People just don’t naturally come to the point where they are willing to compromise their position. There has to be pressure on it.”

 – Rep. Dana Rohrabacher, a California Republican, in a comment on September 29 on the need for the House of Representatives to stand fast on the legislative agenda of the Republican majority even if it meant a government shutdown.

WE CHECKED THE CONSTITUTION, AND…

When the founding generation was debating how to create a new national government, it was well aware of the hazards—at home and abroad—of having a government that was unable to function. That was the well-remembered legacy of the Articles of Confederation, which the founders were about to discard. It is thus almost a certainty that they never thought that the new national government they were putting together would, one day, find itself unable to govern.

Still, the plain fact is that they did not write into the new Constitution a binding duty to keep the national government open and functioning. There is, for example, no constitutional command to Congress and the president to avoid an impasse over the budget that leads to turning out the lights and closing the doors on many if not most of the federal agencies. That might be an offense to the Constitution’s silent belief in the good faith of those in government to keep it going, but it is not unconstitutional.

In a manner of speaking, the Constitution does seem to expect that government will continue to run in an uninterrupted fashion. Congress is told that it must come in “at least once each year,” and the House and Senate are told that neither of them can adjourn for more than three days unless the other chamber agrees. The House is admonished, at least by implication, that it should pass bills “raising revenue” to pay the government’s operating bills.

The president is charged directly with the duty to “take care that the laws be faithfully executed,” and that presumably means the laws that Congress passes to finance day-to-day government operations.

Did it occur to the founders that, in some years, because of an impasse between the political branches over the budget, there would be no laws passed to pay to keep the government open? Would they have thought that, in that circumstance, Congress and the president had acted unconstitutionally? And, if that notion had occurred to them, what remedy might they have imagined would be necessary?

The president, of course, could face the draconian remedy of impeachment by the House, conviction by the Senate, and removal from office. Such a president might also face the wrath of the voters, if reelection were pursued. Impeachment, of course, does not apply to the House and Senate, so there could be no remedy other than voting the lawmakers out of office the next time an election is held.

It is reasonable to assume that the Constitution provides no other cure for budgetary impasse, with a resulting shutdown of government, because the Constitution did not anticipate a paralyzing polarization in the nation’s political life, and did not expect that short-term partisan preferences could translate into an abject failure to work out modes of keeping the government in motion.

James Madison, the “father” of the Constitution, did warn about the dangers of factionalism in America, but he thought that the competition among those holding differing views would be offsetting, as part of the checks and balances, so that, in the end, the governmental system would work. That is why he favored separation of governmental powers—horizontally at the national level, vertically between national and state levels.

The kind of factionalism that Madison had in mind, however, involved a competition over the best way to run the government—that is, what powers government should have, how those powers should be used, and how those in office could be made always responsive to the will of the sovereign people. It is extremely doubtful that Madison would have expected that one faction might emerge with the belief that no government at all was better than a government that was disappointing to that faction.

What, then, might Madison have thought, had he been around last weekend to hear the comments of Congressmen Dent and Rohrabacher? Would he have agreed with the Pennsylvanian that the time had come “to govern”? Or would he have nodded his head in agreement with the Californian, that “the democratic process” only works in government when pressure points are employed—like threatening shutdown of most agencies for a time—in order to prevail? As Americans assess what has been happening in Washington, they could do well to speculate about “what would Madison do?”

Lyle Denniston is the National Constitution Center’s adviser on constitutional literacy. He has reported on the Supreme Court for 55 years, currently covering it for SCOTUSblog, an online clearinghouse of information about the Supreme Court’s work.

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