The Constitution and the shut-down

If the Republicans force a shut-down of the Federal government, that won’t include shutting down the army, as the Constitution clearly provides it should.

The Constitution forbids:

– Spending money from the Treasury except by appropriation.
– Appropriating money for the army for longer than two years.

The Constitution does not contain any emergency opt-out clause. The Framers clearly intended that the army should cease to exist from the moment the Congress refused to appropriate money for it, and that the appropriation should have to be renewed at frequent intervals. The Framers were Whigs, and had a strong historical memory of Cromwellism.

So if, as seems increasingly likely, the wingnuts now running the House manage to shut down the government, the Constitution would require that the army – including the soldiers in the field in Afghanistan and Iraq – be disbanded.

Of course, that won’t happen. And really, that’s too bad. Because if the Constitution were followed, the threat to not pass a Continuing Resolution would be empty.

I’d be grateful to any reader more learned in this part of the law than I am to explain the theory under which the Federal government keeps spending money after the appropriations have run out, for “essential” services, including the one “essential” service that the Framers wanted to shut down as soon as Congress refused to pay for it.

Author: Mark Kleiman

Professor of Public Policy at the NYU Marron Institute for Urban Management and editor of the Journal of Drug Policy Analysis. Teaches about the methods of policy analysis about drug abuse control and crime control policy, working out the implications of two principles: that swift and certain sanctions don't have to be severe to be effective, and that well-designed threats usually don't have to be carried out. Books: Drugs and Drug Policy: What Everyone Needs to Know (with Jonathan Caulkins and Angela Hawken) When Brute Force Fails: How to Have Less Crime and Less Punishment (Princeton, 2009; named one of the "books of the year" by The Economist Against Excess: Drug Policy for Results (Basic, 1993) Marijuana: Costs of Abuse, Costs of Control (Greenwood, 1989) UCLA Homepage Curriculum Vitae Contact:

23 thoughts on “The Constitution and the shut-down”

  1. “So if, as seems increasingly likely, the wingnuts now running the House manage to shut down the government, the Constitution would require that the army – including the soldiers in the field in Afghanistan and Iraq – be disbanded. “

    Absolutely true, the Army has to be disbanded the moment the latest appropriations bill for it expires. I believe that would be HR. 6523, the National Defense Authorization Act for Fiscal Year 2011, signed by the President on January 7th of this year, and NOT part of any continuing resolution.

    So there is a deadline, we’re just not very close to it. Should we ever pass that deadline, I trust I’ll have your support in demanding the Army be disbanded?

  2. Brett, that’s an Authorization, not an Appropriation. By itself, it doesn’t appropriate anything. And of course my point is not that I’d support the disbandment of the Army in the field, but that I’d like to deprive the right wing of its threat to shut down only the parts of the government it imagines are dispensable.

  3. You know, Mark, I rather figured that was your actual position, but I wanted you to say it yourself: You’ve got no problem personally with violating the constitution, be it ever so clear, but you want to saddle anyone who opposes you with strict compliance.

    The law is for everybody else, not you.

    Care to explain why the position you’ve just expressed doesn’t boil down to that?

  4. I think about it, that was perhaps a little strong. Perhaps you don’t really mean that you’d expect the army to be disbanded if Republicans trigger a government shutdown, but not if Democrats did…

  5. Brett, the Democrats have never triggered a government shut-down. The Republicans have done so once, and are threatening to do so again. That is because the Democrats are grown-ups and the Republicans are either children or monstrers (but I repeat myself).

    Your technique here is one that’s a favorite of Republican rhetoric: imagine a situation that hasn’t happened and has no likelihood of happening. Imagine what a Democrat would do in that situation. Then accuse the Democrat of hypocrisy for acting in the manner that you’ve imagined for him.

    If you want to talk about this, why don’t you talk about the world that exists outside your head, which is the one that interests the rest of us. The world that exists inside your head is one that you’re welcome to talk to yourself about all you want.

  6. Bloix,

    Brett is clearly trolling. Why give him the time of day? Mark Kleiman is advocating that people who interpret the constitution literally on social spending do so for defense spending, and Brett derps it into hypocrisy charges? He’s not stupid, just trolling.

  7. An interesting issue is the TSA and airports. It’s clear that airports can be safely shut down without endangering life or safety (the loophole that prevents the Army from being immediately disbanded), since they were shut down for three days after 9/11. So there’s no justification for spending money keeping the TSA at work without an appropriation. If we can keep the airports open without the TSA, then we don’t need the TSA.

    Last time, there was no TSA, so there’s no precedent.

  8. Jim, there was a precedent. The airports can’t operate without air traffic control, and the air traffic controllers work for the FAA.

    Now of course in some sense air traffic is “essential.” But then in some sense continuing to provide medical care for veterans and checks for Social Security recipients who could be evicted if they can’t pay their rent is also “essential.”

    The problem is that the definition of “essential” favors the right wing.

  9. Yeah, if you’re only demanding that one party adhere to the Constitution, you’re a hypocrite. Mark concedes that the Constitution is crystal clear on this point, but only seems to be willing to fault Republicans for violating it.

  10. A government shutdown is something like a crash when people are playing chicken. It takes two to pull it off. If the House Republicans are willing to risk a government shutdown over fairly minor budget cuts, it is no less true that Democrats are willing to risk a shutdown to prevent fairly minor budget cuts. If only one side were playing chicken, no crash would be in the offing, no? The budget cuts, however minor, would happen, and life would go on.

    But you’ll notice that Mark lays all the blame on only one of the drivers. Despite the obvious truth that it takes both parties being stubborn to cause the shutdown.

  11. @brett–seriously, some of your best efforts today. i have been laughing harder with each post. the 3:42 post had me actually laughing out loud. if you ever work a comedy club in dallas or austin i want to know so i can be in the audience.

  12. @Brett: Depends on what you call “fairly minor” budget cuts, I guess. For example, my colleagues who do basic and clinical research on lymphoma? They are just sh*t out of luck if these teatards succeed in hosing the NIH budget, and that is bad for them and their families and their students and postdocs. As for the people who get lymphoma that is refractory to current chemotherapeutic protocols, perhaps in a relapse? I suppose the therapies and interventions that might have been developed with that absent support simply represent an opportunity cost, one that costs those lymphoma patients (excuse me, customers) years off their lives. No big deal really, is it?

  13. Mark,

    No. ATC has to operate as long as there’s any air traffic out there — military or crop dusters — to prevent them from bumping into each other: life and safety exception. TSA just supports commercial passenger aviation, which isn’t essential.

  14. To Brett Bellmore: I give you Abraham Lincoln, from the Cooper Union Address:

    A highwayman holds a pistol to my ear, and mutters through his teeth, “Stand and deliver, or I shall kill you, and then you will be a murderer!”

    To be sure, what the robber demanded of me – my money – was my own; and I had a clear right to keep it; but it was no more my own than my vote is my own; and the threat of death to me, to extort my money, and the threat of destruction to the Union, to extort my vote, can scarcely be distinguished in principle.

  15. Interesting reference, but who in this case is the highwayman? That’s the point at contention. You want to argue with specific cuts, have at it, but both sides in this are intransigent.

  16. I for one am fine with the Army being disbanded. I’m actually surprised it hasn’t been yet, since it requires a positive act on the part of both houses of Congress and of the President to continue its existence.

  17. @jim: Question of fact: doesn’t the military have its own ATC? (And how many of those military flights are literally necessary for the protection of life and property?) In any case, even if it’s essential to keep a skeleton ATC operation going at the FAA, it’s not essential to staff up to handle a full regular day’s traffic. A skeleton crew could handle the strictly necessary DoD traffic. Everyone else gets to walk.

    As to the crop dusters, they’re surely less essential than airliners.

  18. Brett Bellmore – Congress would never pass the cuts that the Tea Party is demanding. The House would, but the Senate wouldn’t and if it did the President would veto the bill. So they can’t get what they want through constitutional legislating.

    Instead, they are pointing a gun at the head of the American nation and saying, if we don’t get our way, we’ll close this place down. No social security for you, grandpa. No airplanes for you, Mr Business Man. No Coast Guard rescues for you, Mr Fisherman. No guns or diesel fuel for you and your men, Captain Jones in Afghanistan. No food stamps for you, Ms Single Mom. No unemployment benefits for you, Mr Unemployed Construction Worker and Ms Laid Off Social Worker. No medical care for you, Mr. Veteran. No federal grant money to you, schools, police, health departments. And how many hospitals in the country can keep their doors open without Medicare payments? We’ll soon find out. Not to mention the end of international confidence in American bonds and the death of the dollar as the international reserve currency.

    That’s what I mean by a highwayman. These people are threatening to destroy the country if they don’t get their way.

    Note that the Dems have never threatened to do this. Not over the war in Iraq, not ever. That’s because they understand that threatening to hurt the American people is not a way to govern. But the Tea Partiers don’t care. If they can figure out how to blame the Dems – “if you force me to shoot you, you will be a murderer” – they don’t care who they hurt.

  19. > Question of fact: doesn’t the military have its own ATC?

    The military uses FAA air traffic control extensively (which is why civilian controllers hold security clearances), but it can also assume traffic responsibility for its own aircraft if it declares the necessity to do so. With the skies mostly clear of airliner traffic it wouldn’t pose any problem for military flights to take care of themselves.

    Crop dusters generally have zero interaction with air traffic control [1] unless they transiting across a controlled airspace. You don’t need a control tower when you are operating from a dirt road outside a farmer’s barn.


    [1] Contrary to soon-to-be-former King Richard M. Daley’s belief, the vast majority of airspace in the United States is _un_controlled by FAA ATC, and the numerical majority of airplanes do not operate under the control of ATC.

  20. Bliox, I’ve said this before, I’ll doubtless say it again: It takes two to play chicken. If Republicans are willing to bring it all crashing down to get cuts that would scarcely even begin to chip away at our huge deficits, it is equally true that Democrats are willing to bring it all crashing down to prevent cuts that would scarcely even begin to chip away at our huge deficits. They’re demonstrating that they regard even trivial attempts at budget discipline as beyond the pale.

    I know what I would do in the Republicans’ place: I’d initiate a series of single subject bills authorizing this government program, and that. So that when Democrats vote to NOT keep SS running, and vote to NOT keep the FAA guiding planes, the blame would be clear. It would be Democrats who’d voted them down.

    Screw omnibus bills, split the thing up into a hundred, or two hundred pieces, and leave out the pieces they don’t like. That’s the way budgeting ought to happen anyway, with individual programs voted on individually.

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