Like so much else, it’s all the fault of the founding fathers. They thought they were being terribly clever in hard-wiring a separation of powers into their constitution. The executive (i.e. the president) is separately elected from the legislature (the two houses of Congress), which makes the laws. And the judiciary (the highest branch of which is the Supreme Court) is appointed in such a way that its judges, once in office, are supposedly immune from interference from either of the other two branches.
The founders intended that, unlike a British monarch, an American president would be restrained by the Congress – and no form of restraint was more powerful than being able to control the money. Only Congress could raise revenue, and only Congress could authorise spending. Thus, the wings of a would-be tyrannical executive would be firmly clipped. Or so they thought.
This wouldn’t be so bad if Congress and the president were on the same page, or if one branch of government willingly yielded to the other – which was the case for most of the first century of the existence of the United States when Congress took the initiative. Expenditure was mostly taken up by the army and the Post Office (though local and state governments spent heavily on infrastructure projects), and, at least in peacetime, presidents made few specific revenue-based demands of Congress.
Even so, the fact that the branch of government which authorised the budget was not in day-to-day control of the actual spending caused problems. Federal agencies – the Indian Bureau or the army, for example – frequently (and often deliberately) overspent their allocated budgets, confident that Congress would have to retrospectively authorise the expenditure.
In 1870, Congress tried to put a stop to these bureaucratic spendthrifts by passing the Antideficiency Act, which made it illegal for Federal agencies to incur outlays that were not already approved. For a century, this well-intentioned legislation, (which was amended several times), was honoured more in the breach than in the observance, but it laid the basis for that most dysfunctional symptom of American political polarisation: the government shutdown.
The roots of the first US government shutdown
After Congress adopted a new budget process in 1976, stand-offs over spending between the two Houses of Congress, or between Congress and the president, meant that for four years running, the budget wasn’t signed off on time. At first, the government kept spending anyway: there was no shutdown. But then in 1980, President Jimmy Carter asked his Attorney General, Benjamin Civiletti, for a legal opinion on whether it was legal for the government to spend on credit. Civiletti looked hard at the 1870 Act and concluded that “on its face, the plain and unambiguous language of the Antideficiency Act prohibits an agency from incurring pay obligations once its authority to expend appropriations lapses”. This was a hardline interpretation of the law, but it has stood ever since.
In the current situation in which we find ourselves in 2019, if Congress hasn’t passed a budget, or at least passed a resolution that authorises temporary spending, the government simply has to stop spending money. The National Parks close; no one checks whether corporations are breaking anti-pollution laws or fiddling their taxes; food manufacturers can cut hygiene corners without any fear of a snap inspection. There are exemptions, however: air traffic controllers and airport security staff have to turn up to work, but without being paid. Essential expenditure – if it’s demonstrably a matter of life or death – can continue. But basically, everything else stops. Federal employees aren’t even supposed to check their email from home.
This situation couldn’t occur in a parliamentary system, of course, because if the government (the executive) can’t get its budget through parliament (the legislature), the government falls. The founding fathers thought that by having a separately elected president, executive power would be constrained, compared to that of an unelected monarch. But they were reacting against a caricature of monarchical rule, not the reality of how power worked in 18th-century Britain. At the very time that the American Revolution was occurring, the British constitutional system was evolving to the point that the monarch was effectively just a figurehead, leaving ‘real’ executive power in the hands of the prime minister and cabinet that were in power – not by virtue of the confidence of the king, but of parliament. But in America, Congress can’t get rid of a president in whom it doesn’t have confidence, any more than a president can get rid of Congress. If there’s a clash, the result is stalemate.
Shutdown vs compromise
But who benefits from allowing a political fight over a budget to reach this stage? Surely, one might think, rational self-interest on all sides should prompt compromise. Who, after all, wants to get the blame for hundreds of thousands of Federal workers having to go without their pay checks?
The answer – the fundamental factor that overwhelms any such moderate impulses – is the US’s intense, destabilising, unreasoned partisan polarisation; a phenomenon that pre-dates and will outlast the current occupant of the White House. It is no coincidence that the first major government shutdown was the result of a standoff between President Bill Clinton and the Republican House Speaker Newt Gingrich, who had promised a Republican revolution when his party won the midterm elections in 1994. The issue was Republican plans to defund welfare and Federal health programmes and cut taxes more severely than Clinton could accept.
Over Christmas and new year 1995–96, the Federal government was shut down for 21 days. Clinton conceded to multiple demands from the Republican congress, yet polls at the time suggested that Gingrich had overplayed his hand, and Clinton was re-elected the following November. It didn’t help that Gingrich made his position seem petty and personal by complaining that Clinton hadn’t spoken to him about the budget on Airforce One on the way back from Israeli prime minister Yitzhak Rabin’s funeral.
President Bill Clinton listens to speaker of the House Newt Gingrich during a joint appearance in Claremont, New Hampshire, 11 June 1995. (Photo by Geoff Hansen)
In the current crisis, President Trump is part of the problem, to be sure: like Gingrich, the president’s personality clearly doesn’t lend itself to compromise. But the real issue is that Trump believed that forcing a government shutdown was a political win for him. He is the first president in American history who hasn’t even tried to pose as a bipartisan figure. His entire re-election strategy relies on mobilising his base through fear that America is under threat – whether from perfidious foreigners with their unfair trade deals; metropolitan liberals; or invading Latin Americans crossing the Mexican border with their babies in arms and their drugs secreted in their clothes.
Consequently, building his wall – and especially having to fight for his wall against the opposition of liberals like San Francisco Democratic leader Nancy Pelosi – plays well with his people, and, in the end, that’s all that matters. Trump’s political genius was to recognise that he could win by exploiting divisions rather than – as the previous president, Barack Obama, did – trying to overcome them.
It’s unfortunate for America and for the world that the founding fathers’ clever separation of powers was so effective. Both sides will watch the polls carefully, but each thinks they have more to lose with their own supporters by compromising, than they do by holding firm. And so we are left with the spectacle of the richest country in the world refusing to pay its own government workers.
Shutdowns cost money, too: interest has to be paid on overdue bills; fees go uncollected; and productivity is lost when workers are sent home yet receive back pay once the shutdown ends. Sadly, no one would place any bets on this being the last time the United States gets into this mess. Things may well have to get a lot, lot worse before they get better.
Adam IP Smith is professor of US history at University College London (UCL).