The Shutdown, Presidentialism, and the Constitutional Crisis This Time

There have been three great political and constitutional transformations in our nation's history. The first covered the period from 1776 to 1789, during which the country declared and then won its independence and eventually settled on a particular form of government, a federal constitution. The next covered the period from, let's say, 1857 (though the starting-point is kind of arbitrary since it had been building for a long time; 1861 would be perhaps a more conventional answer) through 1870. This was, obviously, the slavery crisis, during which the country fought a whole bloody war to answer the question of whether it would keep having slavery. The third was the Great Depression, with the true constitutional crisis period lasting roughly from 1929 through 1937, though the economic difficulties lasted a while longer. The first two were separated by approximately seventy years; the latter two were separated by approximately sixty or seventy years. Projecting forward seventy years from the last one gets you... a few years ago. Or, to put it another way, if you buy this rough extrapolation (which you probably shouldn't, it's incredibly crude), we're about due for a constitutional crisis. Maybe overdue.

Notice anything that could be called a constitutional crisis?

If so, you're not the only one. The federal government is currently shut down. In a couple of weeks it will, unless something happens to change this, hit the statutory debt limit, after which it will not be allowed to sell government bonds to raise revenue to cover the gap between tax revenues and spending obligations. No one knows what happens if that happens. Maybe worldwide financial chaos and depression. Maybe President Obama just ignores the debt limit, which might avert the former and would definitely trigger a full-blown constitutional crisis in its place. One way or another, it won't be pretty. All of this is, of course, happening because the party which controls one of two Houses of Congress, and does not control the White House, has decided that it will refuse to participate in averting these catastrophes until and unless the President basically enacts the entire policy platform of the man he just convincingly beat to secure his re-election. Or maybe even until he enacts something even more ideologically extreme than that, i.e. more extreme than this party's own primary process could endorse. This is, uh, a constitutional crisis. Right on schedule.

It's been building for a while, although fairly few of us have seen it coming particularly long in advance. Some, however, say it could've been foreseen a very long time in advance. Say, two-hundred years or more. As Matt Yglesias details in this post, eminent political scientist Juan Linz spent his life crafting a persuasive argument that presidential democracies are inherently unstable. Essentially this is because, in a parliamentary system, there is only one Government. That is to say, the party with the majority in Parliament just plain governs, with all the powers and responsibilities that entails. If they screw it up, they lose the next election, and the other party (or maybe a new one) gets a chance at the whole "governing" thing. In a presidential system, on the other hand, there are two independent political powers within the government, each with a claim to democratic legitimacy: the President and the legislature. What happens if they don't get along? What happens if they really, really don't get along, such that they cannot between the two of them govern? Linz says there's just no way to resolve that dispute consistent with the principles of democracy, so something else, typically the whims of the military, has to choose a winner. Steve Calabresi, my former professor and perhaps the foremost champion of presidential government, makes a number of good points about the weaknesses of Linz's case, for instance that most of the examples he cites are Latin American countries without a strong judiciary that can act as a potential dispute-settler between the political branches. Still, the current crisis in Washington looks an awful lot like a Linz-style collapse of presidential government, right?


Well, it does look like that, but that doesn't mean it is that. At least I don't think that our current crisis is fundamentally about presidential government as such, or even about the Madisonian system of checks and balances. (Note that we don't really have a separation-of-powers system in the Montesqueian sense; if we did, the legislature would just make the laws and then the President would just have no choice but to follow them, and stuff like this couldn't happen.) Rather, the structure of our government has built up a lot of rules that serve to exacerbate both the risk and the severity of a Linz-style crisis. The shutdown-and-debt-limit crisis is just the most striking illustration of the fact that these rules permit a sufficiently unscrupulous political party, a "bad man" as Holmes put it, to undermine what we thought was the broader constitutional system. But these rules aren't mandated by the Constitution. Don't blame James Madison, in other words, because there's plenty of stuff we could do to prevent the kind of crisis we're currently experiencing from ever happening again. And that is, I think, how the growing constitutional crisis will have to resolve itself.


I should note, by the way, that the constitutional crisis of the Great Recession era isn't just this shutdown. The government has been malfunctioning ever since Barack Obama took office, and in some ways since longer ago than that. Certainly it's been building for decades, as various informal norms keeping the system intact have been assailed, usually (but not always) by Republicans. Usually these attacks are, in a sense, very rational: the norms being cast aside all entailed one political party agreeing not to pursue its short-term optimal strategy under the formal rules. Why would you ever do that? Well, perhaps because if you don't the result is what we're seeing today, but that's a hard argument to make at the time. It's only been over the past decade, though, that the results of this process have started getting really problematic. The judiciary is massively understaffed, an underrated part of the problem. It's getting harder and harder for a President to get his own executive nominees confirmed, and there's reason to think that there's been unnaturally little turnover in the Obama cabinet because of this problem. And not only has the ideological gulf between the two parties ballooned to unprecedented levels, such that they seem incapable of agreeing about anything, but the very process by which they might try to reach those agreements has fallen apart. This isn't the first hostage crisis, you'll recall. In the summer of 2011 Republicans threatened to force a debt ceiling crisis unless they got massive spending cuts. That was resolved mainly by adding more time to the time bomb, not by defusing it, and so at the close of 2012 the Republicans, having just lost a big ol' election, they threatened to let all the Bush tax cuts expire, and other spending cuts to go into effect, much of which was stuff they didn't want to happen, unless they could extend the Bush tax cuts for rich people. Or something. It was weird. Now we're at it again. I would also add that I think the entire legislative period of the 111th Congress was in a way a sign of the underlying crisis, since the Democrats had to reckon with the 60th-percentile of the Senate rather than the 50th. Stuff got done, but a whole lot less than should have given the electoral results, and that failure has arguably laid the seeds of all the future crises.

What's behind all of this? Well, a lot of things, and it's true that divided government carries an unavoidable possibility of stalemate. But the causes of this week's acute crisis are pretty easy to discern, and I'm not talking about the various factors of Republican insanity and intransigence. Like I said, for these purposes I'm taking Holmes' bad-man approach, so I'm just taking insane, intransigent Republicans as a given, and focusing on what tools they have to cause problems. Those are twofold. The first and most obvious is the literal insanity that is the statutory debt limit. I say insanity because the debt limit causes a very genuine logical contradiction within the law, if it ever has any force at all. Tax revenue is set by law; it is illegal to collect more in taxes than the law says. Spending obligations are set by law; it is illegal to spent less than the law says (although this has been the subject of some controversy over the years and is probably a default rule that Congress could change through statutory language if it wanted to). If the law requires more spending than taxes, you've got to get that money somehow, and the way you pay for things you don't have the money for is through debt, through selling government bonds in this case. But the debt limit says that there's also a legal limit on how much of that you can do. So in a couple of weeks we'll be in a situation where we legally cannot get enough money, through taxes or debt, to meet our spending obligations, and something will have to give. Never mind the idea that there's a platinum-coin loophole to all this; there's just no reason for this kind of internal contradiction to be possible. Repeal the debt limit! Give Treasury the authority to issue as much debt as is necessary to fill the budget deficit. Do that, and one half of the Republican hostage strategy just disappears.

The other thing is the shutdown itself. Appropriations bills cover a finite period of time, and when they expire, there's no legal authority for spending money on most of the government's activities. Not all of them, mind you; mandatory/entitlement spending is authorized by law independent of the appropriations process. But most of the actual activity of government shuts down without new appropriations. But why? The Constitution doesn't say it has to be like that, except about the military. Congress could easily pass a law saying that, in the absence of a new appropriations bill, the government would just keep going with the status quo funding levels. And again, if you passed that law, the other half of the Republican strategy disappears. If you repealed the debt limit and made ongoing temporary appropriations the default, budget hostage tactics would become impossible. When the President and at least one House of Congress couldn't agree over the budget, the result would just be... stalement, i.e. nothing new happening and nothing changing. Just the government continuing, under whatever the existing policy regime already was. In other words, our Constitution's very real aversion to action by the political structure would operate to prevent changes rather than continued functioning. That's kind of reasonable. It makes sense that, if the President and Congress, each with independent democratically-legitimate constituencies, can't agree over which new policies to adopt, you just don't adopt any new policies. It doesn't make sense for the government to shut down because the President and Congress can't agree about new policy. But the Constitution doesn't require that! It tells us that we can't necessarily avoid having the disagreements, but it doesn't tell us how bad the consequences of disagreement have to be.

And this, I think, will be the way out of the growing constitutional crisis. I'm not sure how it will work in every facet; for instance, my friend and I were just discussing that there isn't any obvious way to eliminate the possibility of a judicial vacancies crisis. But you can do a lot of work tearing down the formal rules that allow a "bad guy" party committed to getting its own way even at the cost of the stability of governance to blow things up. Abolish or reform the filibuster. Impose limits on state electoral shenanigans, particularly by restraining political gerrymandering. And there's probably a lot more that can be done. But I know that it will get done, because we're over the point of no return. Both parties now realize, I think, that at this point it just is irrational not to pick up a weapon that the formal rules provide for you. I'm not sure the Democrats would take the global economy hostage as Republicans have were they the opposition party, but they will definitely filibuster everything in sight the next time they're the Senate minority, they'll definitely continue not confirming judges they don't like, etc. And that means that the crisis will keep getting worse and worse until those rules are taken away. The Madisonian constitutional system sets limits on how much we can do to avoid gridlock and stalemate, but we're a long way from those limits, and for the foreseeable future the imperative to close that gap, to rid ourselves of every unnecessary feature of the system that makes it easier rather than harder to create chaos and discord within the government, will only grow stronger and stronger, until the crisis tears itself apart.