Mt. Vernon Register-News

Opinion

September 30, 2013

How Congress got the power to shut down government

(Continued)

WASHINGTON, D.C. —

Subsequent opinions handed down by government lawyers bolstered the Anti-Deficiency Act. In 1962, the comptroller general handed down a decision that affirmed the power of Congress to force government departments to live within their means. In short, they couldn't spend money in excess of what they had been given via an appropriation. But these administrative rulings were focused on budget shortfalls. They were largely silent on the question of what would happen if Congress simply failed to appropriate any money.

By the 1970s, this question was increasingly relevant. Congress repeatedly failed to pass appropriations bills in time for the new fiscal year, and instead resorted to so-called continuing resolutions to fund the government on a temporary basis. But a growing number of officials increasingly asked what government agencies and departments could do when there was a "lapse" between the expiration of one appropriation and the beginning of another. Such lapses had taken place during the 1970s. Were they violations of the Anti-Deficiency Act?

In 1980 and 1981, President Jimmy Carter's attorney general, Benjamin Civiletti, issued two opinions on this issue. Both are a bit esoteric for anyone without a firm grounding in administrative law. According to summaries by the Congressional Research Service, they held that "with some exceptions, the head of an agency could avoid violating the Anti-Deficiency Act only by suspending the agency's operations until the enactment of an appropriation. In the absence of appropriations, exceptions would be allowed only when there is 'some reasonable and articulable connection between the function to be performed and the safety of human life or the protection of property.'" Additional exceptions were made for spending "authorized by law," a definition that encompasses a limited number of expenditures deemed essential.

Otherwise, the Civiletti opinions guaranteed that when Congress failed to pass an appropriation bill, most of the government would shut down. In the process, the balance of power subtly shifted back to Congress. Previously, its failure to act did little to stop the government from continuing its day-to-day operations. But by the 1980s and 1990s, the reverse was true. In the process, the failure to pass appropriations went from being evidence of legislative laziness to a "nuclear option" that one party could invoke in order to secure concessions from the other.

All that remained was for one party to embrace this option as a standard tactic.

 

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