The recent partial shutdown of the federal government has revived interest in legislation to make shutdowns impossible. Last year I wrote favorably about Ohio Republican senator Rob Portman’s proposal for an “automatic continuing resolution.” If Congress and the president could not agree on appropriations bills, spending on the affected program would continue at existing levels for a few months. Spending would then, absent new legislation, be cut a percent at a time.
Wesley Pruden writes in the Washington Times that such proposals are unconstitutional, because “Article 1, Section 9 [of the Constitution] plainly says that ‘no money shall be drawn on the Treasury but in consequence of Appropriations made by Law.’”
He adds that Virginia Democratic senator Mark Warner’s version of the proposal would “cut off pay for legislative and White House officials” and therefore violate the constitutional prohibition on changing representatives’ salaries during their terms in office. The Obama administration, Pruden says, called this idea “blatantly unconstitutional.”
I don’t think this is right. The point of the relevant portion of Article I, Section 9, is to keep the federal government from spending money without congressional authorization. By passing a law keeping programs in operation in the event of a political impasse, Congress would be authorizing the necessary spending. I don’t believe that such legislative authorizations of spending — e.g., the authorization for sending out Social Security checks, which does not require an annual appropriation — has ever been considered unconstitutional on this ground.
Article I, Section 8, says that the appropriations for “Armies” cannot last longer than two years; the next clause authorizes Congress to make appropriations for the Navy with no time limit, and no other clause mentions a time limit, either. The implication is that Congress usually has the power to appropriate funds for whatever length of time it wishes.
The Warner proposal appears to be different from the one that the Obama administration condemned on constitutional grounds. Instead of purporting to dock congressional pay, Senator Warner would create an automatic continuing resolution that covers everything but the White House and the legislative branch. In other words: The proposal doesn’t do anything to those salaries; it just declines to provide for their continued funding. Under current law it is possible for Congress to pass every appropriations bill except the one that funds itself. (Needless to say, it does not follow this practice.) It’s a constitutional practice when it’s done outside the context of a continuing resolution, and it would be constitutional within that context too.
Pruden writes, “The idea of this Congress trying to deny a successor Congress the right and opportunity to use its powers to do its assigned job sounds bizarre.” But Congress would not be attempting to bind any future Congress to its will. Any future Congress would have both the right and the opportunity to pass appropriations bills; it could even shut down the government, if it repealed the automatic continuing resolution law with either the president’s consent or a veto-proof majority.
I very much doubt that repealing this (not-yet-adopted, so still hypothetical) law would be a wise course of action, because shutdowns don’t seem to me a sensible way of governing or one that has done much to advance conservative policy objectives. The Constitution, as far as I can tell, leaves Congress free to legislate a default rule for spending that avoids such shutdowns — although any such law would have to be time-limited insofar as it affects the Army.