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John W. Dean

The Tea Party's Apparent Willingness to Shut Down the Federal Government and What the Consequences May Be


Friday, November 12, 2010

As the recent mid-term elections progressed towards their culmination, and in their immediate aftermath, one theme clearly emerged for the Tea Party Movement's success: They are ready to shut down the federal government to enforce spending discipline. While choking government operations by fiscal inaction is outrageous, we have all been warned that extreme behavior is the Tea Party's norm.

Given the attitude at the White House, unless there is some planning it is more likely than not that these antics will work. And if the Tea Party folks succeed, it will benefit Republicans at the expense of others.

The Coming Tea Party-Sponsored Government Shutdowns

Mark Meckler, a co-founder of the Tea Party Patriots, pounded the shutdown drum before the election. Tea Party supporters in the Republican leadership have now joined the effort, and there is a growing consensus that we are headed towards one or more government shutdowns, or threats of shutdown, to implement the radical Tea Party agenda.

Causing shutdowns, of course, is not a new gambit. But bringing the government to a halt by refusing to enact appropriations legislation is, in fact, an exclusive ploy of Republicans, and it has been used by both Capitol Hill and the White House when under GOP control. The nonpartisan Congressional Research Service has prepared excellent monographs on prior government shutdowns, looking at their causes, effects and process as well as potential solutions -- which Republicans have made sure have gone nowhere.

This tactic operates with about the same finesse as those used by Mexican drug lords. As the Tea Party Movement candidates enter the Washington political arena -- with their penchant for Second Amendment remedies -- shutting down the government could be one of their friendlier strategies, unless, of course, the GOP establishment co-opts this crew. But yesterday's Republican radicals, like Mitchell McConnell and John Boehner, actually look reasonable if put in a room with Rand Paul and Michelle Bachman -- the poster people for the Tea Party.

Threatened shutdowns are political tantrums, and thus a form of extortion. If such behavior is rewarded, it will only become more frequent and demanding. Historically, when exposed and dealt with firmly, these efforts have failed. But the Tea Party -- along with other Republicans -- views Barack Obama as a weak president, not without reason, so they have everything to gain and nothing to lose by using this approach.

Government-Shutdown Situations: How They Have Historically Played Out

Under Article I, Section 9, clause 7 of the Constitution -- often called the "appropriations clause" -- funds cannot be drawn from the Federal Treasury, or obligated by federal officials, unless Congress has appropriated the money by law. In addition, under the Anti-deficiency Act, which has been the law almost from the nation's founding, federal departments and agencies are prohibited from acting -- except in matters of emergency and national defense -- without an appropriation.

As the country has grown more polarized, particularly since the Reagan Administration, it has become increasingly difficult for Congress and the White House to agree upon the appropriations needed to fund the federal budget. Accordingly, when Congress fails to adopt the annual appropriation, Congress enacts and the president signs a continuing resolution to temporarily fund departments and agencies until the appropriation has been enacted and signed into law. Refusal to enact an appropriation, or at least to enact this kind of continuing resolution, will bring about forty percent of the government to a halt until differences are resolved. Appropriations must be made annually.

Another disruption point is the federal debt limit, which has been steadily increased over the decades. By law, federal spending cannot exceed the debt limit, which is also established by law. Thus, when the federal government reaches its debt limit, Congress must agree to extend it, or the Government will default on its obligations that exceed the limit. Such a default, of course, could have catastrophic implications for the world's financial market. Theoretically, a handful of filibustering U.S. Senators, hell-bent of not extending the debt limit, could create world financial havoc. Economists say that the debt limit will need adjusting by January or February 2011.

These situations have created an opportunity for Republicans -- who love to profess fiscal responsibility when they do not control the Congress and the White House -- to employ their extra-constitutional, if not unconstitutional, tactics to impose their will and embarrass Democrats, by using the threat of closing down the government by refusing to appropriate funds or adjust the debt limit.

Both Ronald Reagan and George Bush I used vetoes of continuing resolutions that resulted in shutdowns to try to impose their will on Democratic Congresses. And, more famously, Republican Speaker Of The House Newt Gingrich refused to pass a budget when Bill Clinton, a Democrat, was president, unless the Congress was given what the GOP leadership wanted. The Reagan and Bush I shutdowns lasted only days and cost taxpayers only a few million dollars. The Gingrich shutdown, which lasted almost three weeks, cost billions of dollars. Democrats in Congress, and Bill Clinton, refused to be extorted. So the shutdowns failed.

Government should not be a costly game of Blindman's Bluff, which hurts our country in the eyes of the world. Indeed, all federal officials, including both presidents and members of Congress, are oath-bound not to do what Republicans have repeatedly done when cutting off funding, or threatening to do so, for government operations. Tea Party candidates will soon be taking that oath as well, but I am not sure they will honor it. More than likely, they see the Congressional Oath as merely a pro forma ceremony before taking office.

In fact, oaths are public promises, and pledges for future action. Honoring an oath is a matter of character. And there are not different oaths for Republicans, Tea Party people, and Democrats; one oath applies to all.

The Congressional Oath

In January of every odd-numbered year, when a new Congress is formed, all members of the House of Representatives and a third of Senate assemble in their respective chambers to take the Congressional Oath: "I do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter: So help me God."

What does it mean to "support and defend" the Constitution? What is bearing "true faith and allegiance" to the Constitution? How do those in Congress "well and faithfully discharge the duties" of their offices?  A few years ago, Arkansas Congressman Vic Snyder, a family doctor as well as a graduate of the University of Arkansas at Little Rock School of Law, did what no one else has bothered to do, and took a hard look at these questions. He did so in an article for his former law school's law journal in 2001. (Snyder, first elected to Congress in 1996, is retiring this year and is currently serving the remainder of his term. Unfortunately, his article, at 24 U. Ark. Little Rock L. Rev. 811, is behind pay-walls.)

Allow me to distill into a few sentences my understanding of what the Congressman said in several thousands of words, in his wide-ranging survey of the scant existing literature addressing the Congressional Oath. He explored its history; he developed its meaning by examining a few relevant Supreme Court holdings that shed light on it; and he looked at its application in the context of amending the Constitution. Although Congressman Snyder was not looking at the Congressional Oath in the context of those participating in forcing -- or threatening -- a government shutdown, I think what he found is relevant.

As I read Congressman Snyder's findings -- along with the comments of several of his congressional colleagues as well as then-Speaker of the House Denny Hastert, who joined him in accompanying essays -- the Congressional Oath is a pledge of conscience that requires a commitment to "abide by our constitutional system," and to operate "by constitutional processes." Most importantly, there is nothing casual about this pledge. Congressman Snyder approvingly cites Justice Story, who found that, because of their oath, federal officeholders have a "sacred obligation" toward the Constitution. In addition, Congressman Snyder believes that the oath embraces George Washington's admonition that the Constitution must "be sacredly maintained" by office holders, and James Madison's call for "veneration" of the Constitution. In short, the Congressional Oath demands a special "seriousness" in honoring its ways and means; it requires not merely following its terms, but also the spirit it represents.

The Congressional Oath And Government Shutdowns

Threatening, or forcing, a government shutdown is a conspicuous breach of the Congressional Oath. Our Constitution contemplates continuous government, undertaken pursuant to the structure set forth within that document, unless amended by the terms of that document, as spelled out in its Article V.

While the Constitution gives Congress the power of the purse, this appropriations process is divided between the Congress and the president, for no appropriation becomes law without the president's approval, unless his veto is overridden by two-thirds of the Congress. Notwithstanding this Constitutional reality, Speaker Gingrich has called the fact that the Congress must appropriate the funds for government to operate Congress's "trump" of the president's powers. As Newt discovered, this was wishful thinking. Remarkably, Gingrich is one of those who are enthusiastically pushing the Tea Party and current GOP leadership to again use the shutdown ploy to get what they want.

These threats to shut down the government, and the decisions to actually do so when necessary to make the point, are based on the belief that if a Republican Congress (House or Senate, alone when not together) can take the heat of public outrage, then Republicans can embarrass the Democratic president, who can't take the heat -- especially when a president is seeking reelection. Why can't the president take the heat, in Republicans' view? Because -- as many Republicans have told me -- the public is too stupid to figure out who is to blame for the mess, so they will blame the president. Accordingly, Republicans can use the shutdown threat to get what they want, forcing a president to promise not to veto it. Newt, for example, wanted to abolish a good hunk of the Executive Branch, and lower taxes, along with the other Republican wish-list items set forth in the Contract With America that he spearheaded.

The tactic of threatening the shutdown of, or actually shutting down, the federal government by withholding funding will not be found anywhere in the U.S. Constitution. In fact, it is a brazen abuse of power. This is a kind of gaming of the appropriations process, or taking advantage of a president when confronted with a debt limit, in a manner that is far beyond even Richard Nixon's abuse-of-power activities, for which he was forced from office.

Disrupting government operations is not merely a blatant violation of the Congressional Oath, which requires honoring our system and using the processes of government as they were intended. It also pushes the give-and-take of politics, in some circumstances, into the area of criminal extortion.

A Strong Reason For Concern: It's Possible the Tea Party May Successfully Bully the President

The reason I raise this subject at this time is that I am worried that when the thug-talking Tea Party players get going in Washington this coming January, they may successfully bully their way with President Obama. President Obama is a wonderful human being -- smart, caring, a man who wants to do what is best for America. But he has not yet figured out that a president is not simply a super-Senator, a legislator-in-chief, a consensus-seeker extraordinaire, always willing to compromise to keep everyone happy. Being president of the United States is not the same as being president of the Harvard Law Review, which was his prior executive experience. Mr. Obama learned his politics as a legislator, and while he clearly has the talent to do so, he has yet to employ his skills as they are needed by a modern American president.

Republicans, using the Tea Party toughs, no doubt feel emboldened. In the last election, they kicked President Obama's behind for doing what he believed to be best for the nation. I do not know when, or if, Mr. Obama will realize his potential as a president. So I worry. For example, as I write this column, he is floating a trial balloon as to what the reaction would be if he collapsed on the issue of prohibiting further ongoing tax cuts for America's super-wealthy, who are the very last to need tax cuts. Such a collapse would please Republicans and really upset Obama's base. Soon, the President will be negotiating with the government shutdown crowd, and I worry he will give up even more of the greater good to appease Republicans. In fact, he should be planning now (and putting Tea Party members on notice of his plans) as to how, at a minimum, he will embarrass them (no easy task) for threatening to shut down our government. Or, better yet, he should place them on notice that he will request his Attorney General to criminal prosecute them if they use such criminal tactics for political ends. (Congressional immunity is very limited.)

The bottom line: It is time now to plan for the bad behavior that will be coming to Washington with the Tea Party Movement, and to recognize the high stakes that will be involved when they threaten to shut down the government.

John W. Dean, a FindLaw columnist, is a former counsel to the president.

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