Politics & Policy

Not Actually a Shutdown

So little changes that the DOJ says it’s “an entirely inaccurate description.”

The hysterical fears about the effects of a government “shutdown” being voiced by many in Washington, such as Senator Tom Harkin (D., Iowa), who claims it is “as dangerous as the break-up of the Union before the Civil War,” are almost comical. 

The truth from the experience of prior shutdowns, applicable federal laws, Justice Department legal opinions, and Office of Management and Budget (OMB) directives, is that crucial government services and benefits would continue without interruption even if Congress fails to agree on a continuing resolution (CR) or President Obama vetoes it. That includes all services essential for national security and public safety — such as the military and law enforcement — as well as mandatory government payments such as Social Security and veterans’ benefits.

In fact, as the Justice Department said in a legal opinion in 1995, “the federal government will not be truly ‘shut down’ . . . because Congress has itself provided that some activities of Government should continue.” Any claim that not passing a CR would result in a “shutting down” of the government “is an entirely inaccurate description,” according to the Justice Department.

Such a lapse in funding would be neither catastrophic nor unprecedented. There have been 17 funding gaps just since 1977, ranging in duration from one to 21 days. Under applicable federal law, operations and services would continue for those essential for “the safety of human life or the protection of property” as well as those programs funded through multiyear or permanent appropriations such as Social Security.

A 1981 memorandum by David Stockman during the Reagan administration that is still relied on by the OMB laid out the services that continue without interruption during any government “shutdown”:

  • National security, including the conduct of foreign relations essential to the national security or the safety of life and property;
  • Benefit payments and the performance of contract obligations under no-year or multi-year appropriations or other funds remaining available for those purposes;
  • Medical care of inpatients and emergency outpatient care and activities essential for the safe use of food, drugs, and hazardous materials;
  • Air-traffic control and other transportation safety functions;
  • Border and coastal protection and surveillance;
  • Protection of federal lands, buildings, waterways, and other property of the U.S.;
  • Care of prisoners and others in federal custody;
  • Law enforcement and criminal investigations;
  • Emergency and disaster assistance;
  • Activities essential to the preservation of the money and banking system of the U.S., including borrowing and tax collection;
  • Production of power and maintenance of the power-distribution system; and
  • Protection of research property.

So planes, trains, and automobiles will keep running and TSA will keep patting you down. The president can continue to go on overseas trips to conduct foreign relations. Social Security and Medicaid benefits will keep going out. The Border Patrol will keep patrolling our borders to prevent illegal crossings (at least as much as this administration will let it do that). The Federal Bureau of Prisons will keep convicted criminals in prison and the FBI will continue making arrests and investigating violations of the law.

The FDA and the Department of Agriculture will continue their safety testing and inspection of food and drugs, and medical care of inpatients and emergency outpatient care will keep right on going. The Federal Reserve and the Treasury Department will keep printing and borrowing money and protecting the banking system. Unfortunately, the Internal Revenue Service will continue collecting taxes.

It is certainly true that “nonessential” federal employees will be furloughed. But so many federal employees are considered “essential” that when President Bill Clinton vetoed a CR in November 1995 in a dispute with Newt Gingrich over a balanced budget and welfare reform, only about 800,000 out of a total of almost 4.5 million federal employees were furloughed. In a second funding gap from December 1995 to January 1996, only about 300,000 employees were furloughed. So the vast majority of federal workers will keep right on working.

National parks probably will be closed because they are not considered “essential,” and there is little doubt that President Obama will shut down other highly visible (but nonessential) government offices in order to annoy as many members of the ordinary public as possible, while shifting the blame for the shutdown to Republicans and away from his unreasonable refusal to negotiate.

But to be quite frank, I would be happy to forgo visiting Yosemite, Yellowstone, or the Washington Monument if the result would be the defunding of Obamacare or a significant decrease in a wasteful, bloated federal budget.

Senator Harkin was correct when he claimed that “we are at one of the most dangerous points in our history right now.” But the danger doesn’t come from a temporary lapse in government funding. The danger comes from implementing a shoddy, burdensome, expensive program to nationalize healthcare and refusing to reduce out-of-control spending that is hurrying our nation down the road to financial ruin.

— Hans A. von Spakovsky is a senior legal fellow at the Heritage Foundation and a former member of the Federal Election Commission and Justice Department lawyer. He is the co-author, with John Fund, of Who’s Counting? How Fraudsters and Bureaucrats Put Your Vote at Risk (Encounter Books, 2012).

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