A New Meaning to “Government Shutdown”

Quite flamboyantly, President Trump has issued a large variety of executive orders in recent days. He has fired or told to quit many staff — such as the Inspectors General, the appointed watchdogs for each agency — as well as targeted staff in selected agencies, like the U.S. Consumer Financial Protection Bureau. Thousands of probationary federal workers, who typically have been in a role for less than two years, have been fired across the government. He has also proposed to freeze agency spending, initially across the board, but then on a more targeted basis in specific agencies, like U.S. Agency for International Development (AID).

For the firings, he is largely relying on a legal theory, the unitary executive theory of government. This justification stems from the introductory words of Article II of the Constitution, which reads, “The executive Power [of the United States] shall be vested in a President of the United States of America.” Advocates of this viewpoint contend that the President therefore can fire officers in the executive branch at will, without any restraint from Congress, because management of the executive branch is for him alone. The Supreme Court will need to weigh in on whether constraints are in place. However, even advocates of this view would not contend that the President is no longer responsible for carrying out a congressionally authorized program. Nor can a President unilaterally violate civil service laws created to protect federal workers from capricious or politically motivated employment actions.

For the decision to halt or delay federal spending, presently, a President can’t legally do this; the 1974 Congressional Budget and Impoundment Control Act bars a President from choosing not to spend the money that Congress has appropriated. This is part of what led to the first Trump impeachment, in which he ordered the Office of Management and Budget to withhold military aid to Ukraine as he sought to have the Ukrainian government open a criminal investigation of Joe Biden ahead of the 2000 presidential election.

For resolution of both the firings and the frozen spending, adjudication will start with the federal courts. However, most of the questions associated with the freeze in spending will become moot shortly. That is because most federal funding was only appropriated through March 15.

Instead of an annual budget, in which Congress appropriates funding for the whole year, Congress passed a continuing resolution, which provided short-term financing to keep the federal government running for a limited period. With an election looming and lots of divisions within Congress, they punted, deferring difficult decisions by appropriating a status quo budget until after the new President took office. For the Trump administration, that means that court cases regarding fired workers and the impoundment of appropriated funding will be overtaken by events.

When Congress debates a new continuing resolution to cover the remainder of the fiscal year, the Trump administration will seek to establish the policies that it has initiated. The prior actions served to provide momentum or to seem like they had created facts on the ground. The budget for the second half of the fiscal year can establish the legitimacy of the frozen spending and fired workers. But it will be up to the Congress to support these policy goals in an appropriation bill.

That means that the Democrats may have their moment where they can respond to the President and Elon Musk’s provocations.

Starting March 15, the federal government will not be funded. In other words, if there is no agreement, there will be a government shutdown. Clearly, we have been through this before, but what is different is that the President and Congress will all be of the same party. It won’t be a case, as in the 1990s or the 2000s, where a Republican Congress is trying to force a Democratic President to give in. In this case, the Democrats in Congress would be shutting down the government to prevent Congress from codifying all the impulsive, unanalyzed, half-baked proposals for gutting the government and its workers.

It may be that Democrats in the House will not be able to stop the continuing resolution (CR), even one loaded up with the most egregious measures. On the other hand, because of internal divisions within the caucus, Republicans may themselves be unable to pass the CR without Democratic help. The Senate, however, will be in a position to filibuster the CR. That means that, without 60 votes in the Senate, the government would stay shut down until an agreement is reached. National Parks would be closed, grants to universities and state governments would stop. Social Security and Medicare would continue, as would the other entitlement programs.

Democrats will have to be prepared for a potential public backlash; the party that shuts down the government does not usually win. Democrats finally will have the opportunity to resist, but they must be prepared.

It is said that God is in the details; however, the Elon Musk and Trump efforts have been anything but. Proposals to eliminate departments have been offered without data or analysis of the programs and their impacts. Flippantly declaring an agency as radical without taking the time to review what the agency does is just not professional.

If the Democrats filibuster, they will need to frame the debate in order to discredit Trump’s policies of destruction. The risk is being blamed for the shutdown and then giving in.

While this will be the first opportunity for the Trump administration to legally and constitutionally implement many of their policies, it is not the only one. The next budget year is the FY25/26. Even if the Democrats prevail with the continuing resolution, the Trump administration will have the potential to return to fight as part of the regular budget process. For this budget, the administration and Republicans in Congress will have the opportunity to rely on a process — reconciliation — different than the continuing resolution, offering them an opportunity to avoid filibusters in the Senate, and so potentially much more advantaged for the President. The country will see the administration’s proposed budget for the next fiscal year most likely sometime in early April. Congress will be putting together its budget framework, and then later debate the issues over the summer. Until then, we wait.

Stuart Kasdin teaches political science at Santa Barbara City College. He is also a member of the Goleta City Council. Previously he worked for the federal Office of Management and Budget. The views expressed are his own.