The Situation: What a Shutdown Has to Accomplish

The Situation on Sunday analyzed the president’s recent orders designating Antifa as a terrorist organization and directing the Justice Department to go after liberal funding groups.

Tonight, at midnight, two things will happen: The first is that the statute of limitations will run out concerning any further charges directed at James Comey in connection with his September 2020 testimony before the Senate Judiciary Committee.

The second is that the government will shut down.

A government shutdown, which will happen unless the Democrats in the Senate blink between now and midnight, will be ugly. Very ugly. As Nick Bednar wrote yesterday:

The Trump administration views this looming shutdown as an opportunity to permanently reduce the size of the federal workforce. In a recent memorandum, the Office of Management and Budget (OMB) directed agencies to “use this opportunity to consider Reduction in Force (RIF) notices for all employees in programs, projects, or activities that satisfy all three of the following conditions: (1) discretionary funding lapses on October 1, 2025; (2) another source of funding ... is not currently available, and (3) the PPA is not consistent with the President’s priorities.” In short, the administration intends to treat the shutdown as a legal basis for permanent RIFs.

Trump is a nihilist, and nihilists always care less than, well, people who care about things when they stop working. Besides, the parts of the government Trump cares most about—like ICE enforcement—will continue during a shutdown. It’s the parts of the government for which Trump has contempt where the effects will be felt most acutely. In other words, Democrats have more to lose in a shutdown fight than Trump does. That’s the trouble with caring about hostages.

Democrats have typically described this shutdown battle as about restoring the giant Medicaid cuts that Congress made as part of Trump’s tax bill this summer. And that’s true, in part, and I’m sure it’s a righteous fight in and of itself. But there’s more to this battle than health care funding, as important as that may be for tens of millions of people.

Over the past nine months, Trump has worked assiduously to dismantle entire federal agencies despite clear appropriations for those agencies from Congress. Do those laws mean nothing? And more particularly, is the president entitled to expect the votes of opposition members of Congress in order to keep the government funded while he honors only those spending bills that he chooses? A vote to keep the government open on these terms represents a form of congressional assent to such lawlessness. 

One might say the same for the mass dismissals of career civil servants across the government without the slightest attempt to follow proper procedures. Everyone seems to assume such personnel matters should be handled in court. But should Congress keep a government funded without demanding that it obey the laws duly passed by Congress and protect government employees from the rankest of political retribution?

All that is before you get to foreign aid. Yeah, I know, talking about overseas starvation and disease is not the “kitchen table issues” the Democratic leaders keep telling us they want to talk about—unless your kitchen table happens to be in Malawi. But the administration destroyed the American foreign aid program this year with almost no input from Congress. Should those who oppose that decision fund the government on the assumption that it is made or should they condition their votes on some restoration of these programs?

My point is that there is something larger going on here than a domestic cut in health care spending, which—while horrible—was at least duly voted upon by Congress. That something is a systematic disregard for the laws Congress passes. In some cases, that disregard is legally defensible because of the way the laws happened to be written. In some cases, it is frankly lawless. But in all cases, treats the will of Congress as something to be trifled with, not obeyed.

If Congress does not fight back, the appropriations power, the power to make rules for the civil service, and the power to create federal agencies will further atrophy. Why should any president care what Congress says if he just can ignore it, after all? But as Republicans in both houses are content to do nothing and watch as the power to make laws degrades into a power to issue press releases which the executive branch then treats as toilet paper, Congress fighting back really means Democrats in Congress fighting back. And Democrats have at their disposal only one tool right now to force a negotiation on these various issues.

They can’t hold up the president’s nominees for executive branch positions, because they don’t control the Senate. They can’t pass new substantive law, because they don’t control either house.

The one tool they do have is refusing their consent to keep the government open and funded unless they get some basic concessions not merely on Medicaid but also on executive branch compliance with federal statutes. It doesn’t matter who “wins” the public relations fight. Congress usually gets blamed for federal shutdowns, and it’s fine if Congress—and Democrats in Congress specifically—get blamed for this one. What matters is whether federal laws binding the executive branch on spending and other issues come out of this fracas having more force or less. That is, if congressional enactments are able to do more work both in compelling and in restraining the president after the shutdown fight than before, then the shutdown fight will be costly but worthwhile.

But herein lies an important catch: You can’t play this game as a minority party in Congress unless you’re willing to stick with it and win. If you’re going back down in 24, 48, or 72 hours, throw in the towel now before a shutdown even starts. Nothing is weaker than setting up a fight and then flinching from it as soon as it starts—though for some reason, this point never sticks to a man who earned the nickname TACO and has made a signature move out of setting a deadline then blowing past it. But it will stick to congressional Democrats, life being unfair. Doing that is unfair to the men and women who will lose their jobs in the first several days of this shutdown. If you’re going to play this game, you have a moral obligation to win it. 

And winning it, to be clear, does not just mean getting Medicaid funding. It means getting some real assurances Congress’s word means something and still commands respect.

The Situation continues tomorrow—though probably without a government.