U.S. working through shutdown
Well, it’s shutdown time in Washington. Despite U.S. Sen. Kirsten Gillibrand’s remarks based on tired Democratic talking points this one can be blamed on Senate Democrats who claim they are seeking to protect “pandemic era” Obama Care tax credits when in fact they are lining up behind Senate Minority Leader Charles Schumer in his effort to block a possible primary challenge by Alexandria Ocasio Cortez in 2028.
This time average Americans seem unconcerned about the shutdown knowing their lives will be unaffected. The Trump administration sees this as an opportunity to shrink the size of government by making furloughs of non-critical government employees permanent and ending wasteful spending programs.
At the Department of Justice all FBI, Drug Enforcement Agency (DEA), Alcohol, Tobacco, Firearms and Explosives (ATF) will remain on duty as will federal prisons and courts. Over at the Department of Homeland Security the Border Patrol, immigration enforcement, Coast Guard, Secret Service, and FEMA will be open for business. At the Department of Transportation air traffic controllers will continue on the job. Despite the shutdown all active-duty military personnel will remain on duty and the Department of Veterans Affairs will continue to provide healthcare and benefits to veterans.
Finally, Social Security payments will continue uninterrupted as will Medicare and Medicaid payments and the U.S. Postal Service will continue to deliver our mail.
During the shutdown these “excepted” or essential federal employees are required to continue working to protect public safety and property but will not receive pay during the shutdown. This can include TSA agents, air traffic controllers, and certain military and law enforcement personnel. Furloughed federal workers also receive no pay during the shutdown and while Congress often acts to secure pay for the military, there is no constitutional protection for their salaries during a shutdown.
Federal judges and Supreme Court justices receive pay during a shutdown as do the president and vice president. Also, some agencies, or parts of agencies, are funded outside the annual appropriations process. For example, some Veterans Health Administration (VHA) employees are paid from funds that do not lapse during a shutdown.
Members of Congress also continue to receive pay during a shutdown. Two constitutional provisions protect their compensation: Article I, Section 6 of the Constitution states that “The Senators and Representatives shall receive a compensation for their services, to be ascertained by law, and paid out of the treasury of the United States.”
Since 1983 Lawmakers’ pay has been funded by a permanent appropriation, meaning funding for their pay doesn’t need to be renewed annually. The 27th Amendment ratified in 1992 prohibits any law “varying the compensation” of Congress members from taking effect until the next election of Representatives. This prevents a sitting Congress from voting themselves an immediate pay raise or cut. It has also been interpreted as meaning that their pay cannot be legally stopped during their current term, even during a shutdown.
In my view, because Congress plays such a key role in creating shutdowns, it seems that out of a sense of fairness that a provision should have been included in the 27th Amendment that during a government shutdown members of Congress would not receive pay.
There are several reasons why there have been so many government shutdowns since the 1990s. First is the fact that unlike parliamentary democracies where one party controls both the legislative and executive branches in the U.S. they are distinct so that control is often divided between different parties. The U.S. Constitution gives Congress the power to approve all federal spending. This requires cooperation between the House of Representatives, the Senate, and the president to pass the 12 annual appropriations bills that fund the government. In recent decades, partisan polarization has led Lawmakers to use the threat of a funding lapse to force concessions on unrelated policy issues.
Another factor is that prior to the 1980s, federal agencies often continued operating during a funding gap knowing that an agreement would be reached. In 1980 and 1981, Attorney General Benjamin Civiletti established the modern legal basis for federal government shutdowns by a reinterpretation of the 19th-century Antideficiency Act that prohibits federal employees from involving the government in a contract for money before an appropriation is made. Before this agencies continued to operate during funding gaps with the expectation that Congress would eventually pass appropriations. Civiletti’s legal interpretation transformed budget impasses from routine administrative issues into mandatory shutdowns
The 1995-96 shutdowns under President Bill Clinton ushered in an era where funding gaps often resulted in actual shutdowns with furloughs. Since then, several significant shutdowns have been triggered by major policy disputes: in 2013 a shutdown resulted from a standoff over the Affordable Care Act (ACA). In 2018-19 a dispute over border wall funding led to the longest shutdown in U.S. history.
The most recent federal government shutdown began Oct.1, after bipartisan bills failed to receive enough votes in the Senate. Current issues contributing to the impasse include the extension of the expiring Affordable Care Act pandemic era tax credits, which Democrats want to make permanent, and threats of federal layoffs by the Trump administration.
One thing I have learned from shut downs is that the men who wrote the Constitution must have done something right because the republic that they created has survived nearly 250 years despite the misguided efforts of politicians and bureaucrats.
Thomas Kirkpatrick Sr. is a Silver Creek resident. Send comments to editorial@observertoday.com.