How Painful Will Biden Deliberately Make the Shutdown?

According to the Wall Street Journal, when Congress shut down the government in 1995, Bill Clinton consciously and deliberately set about to make the shutdown as painful as possible on the American people. His thinking was — and it will surely be mirrored by Joe Biden — that the more ordinary people are affected by the shutdown, the better it would be for Democrats.

The Clinton administration shut down national parks and museums, stopped processing passports and visas, and curtailed veterans’ benefits. Naturally, Clinton and the Democrats blamed the Republicans.

Contrast the Clinton shutdown, where the administration deliberately inflicted pain on the American people, with the 2016 shutdown. The Trump administration kept the national parks opened, and kept processing tax returns. A former Trump budget official said the then-president had directed staff “to make this shutdown as painless as possible.”

Obviously, a president can pick and choose what services to maintain and which to cut off. The reason he can choose is related to an obscure 1884 law called the Antideficiency Act. That Act and other statutes requires that most of the federal government halt all operations if Congress fails to authorize the funding.

But that same Act has some built-in exceptions so the White House has some wiggle room in deciding what gets closed and what stays open.

“If the administration thinks the blame for a shutdown is likely to be pointed at its opponents, that gives them an incentive to resolve tough legal questions in favor of a tougher, more burdensome shutdown,” said Matt Lawrence, a law professor at Emory University and a former lawyer at the Office of Management and Budget.

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In Trump’s case, the GAO determined that Trump ran afoul of the Antideficiency Act by keeping the parks open. And the agency issued a warning in 2019 when Trump used recreation fees to keep the parks operating.

“It’s definitely all happening against a political backdrop. But at the same time, these laws are taken seriously and they limit what agencies do,” said Zachary Price, a law professor at Harvard University who served as a Justice Department lawyer during the Obama administration.

The government can spend money on programs that are authorized by law. About two-thirds of government spending is considered mandatory, which includes money for Social Security, Medicare and other programs that aren’t approved by Congress annually. Those programs are largely unaffected by a shutdown, though a lapse in appropriations could slow some services in the agencies that run them.

The other exception to the law is for emergencies involving the “safety of human life or the protection of property.” What constitutes an emergency has been the subject of legal wrangling for decades.

“The penalties are very significant under the Antideficiency Act and I don’t think I’ve ever met a civil servant who’s wanted to be on the other end of those,” said Bridget Dooling, a former Office of Management and Budget lawyer and now a law professor at The Ohio State University.

Yes, but by the time a determination is made that the Antideficiency Act has been violated, the government funding crisis would be over and the debate over whether the law had been violated would only be a historical curiosity.

Violations of the Antideficiency Act can result in fines or jail time, at least in theory. Experts said they couldn’t identify examples of government officials being held criminally liable under the law.

But the threat of penalties often causes government workers to be cautious about how they interpret the law, experts said. Agencies are required to report violations of the law to the GAO and explain what precautions they are taking to prevent future violations.

No one is going to be arrested for violating an 1884 law on funding the government. That’s why we should expect anything from Biden and his crew when it comes to the pain that’s going to be inflicted on the American people in a bid to place the blame for the shutdown on Republicans.

In truth, Biden won’t have to try very hard.

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