Let's make consequences of government shutdowns as severe as law commands

Let's make consequences of government shutdowns as severe as law commands
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This Friday, the continuing resolution that has kept the government funded since September will expire. Republican and Democratic members of Congress as well as President TrumpDonald John TrumpConservatives express concern over House GOP immigration bill Poll: McSally holds 14-point lead in Arizona GOP Senate primary Trump defends Nielsen amid criticism over family separations MORE are all attempting to use the threat of a government shutdown to extract concessions. This madness has got to stop.

It’s time we end this annual game of brinksmanship and provide the American people and the markets certainty that government functions will continue. The only way that will happen is if the costs and consequences of a failure to fund the government are more broadly felt as they should be under the law.

Media outlets have rightly taken to calling these events “partial government shutdowns” because all essential services continue. The PandaCam at the National Zoo goes down; the air traffic control system does not. Perhaps it should.

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Shutting down some government functions but not others has helped to create a false narrative that most Americans do not need or rely on the federal government. Democratic administrations have all too readily helped to construct this narrative.

 

In 2011, while serving at the Department of Homeland Security, I helped put together the shutdown plan for my division. That plan would have kept over 85 percent of our personnel working. Only personnel not on the frontline (deemed “non-essential”) would be sent home. Yet the consequences of these partial shutdowns are real.

The Obama administration calculated two billion in lost productivity from the 850,000 federal workers that were furloughed and the loss of 120,000 private sector jobs. Standard and Poor’s put the cost of the 2013 shutdown at $24 billion, taking over half a percentage point off the economic growth rate. To put this in perspective, Goldman Sachs pegs economic growth from the Republican tax cuts at .3 percent in 2017. In short, all of the potential growth from the tax cuts and then some will disappear if Congress fails to keep government operating.

The surest route to ending this insanity is if President Trump takes executive action now to direct the full shutdown of government operations in the event of a failure to pass a spending bill. Doing so would make the consequences both dire and clear. It would also strictly adhere to the law. 

Under the Antideficiency Act, the law that governs in the event Congress fails to fund government operations, almost all government operations should be shutdown.

Exceptions are only for the prevention of “emergencies involving the safety of human life or the protection of property.” The law is clear that such emergencies do not include “ongoing, regular functions of government the suspension of which would not imminently threaten the safety of human life or the protection of property.”

As plainly written, very little government activity should continue. No, the doors of federal prisons should not be flung open and most federal law enforcement activity should continue. But the legal opinions that kept two-thirds of federal civilian employees on the payroll in 2013 should be reviewed and revised.

Looking at my former home agency is instructive. While the Department Homeland Security provides essential functions to the national security, most of its employees are in the business of making sure that people and goods can safely be let into the country and that planes can safely fly. But the economic consequences of grounding aviation and closing borders to trade and immigration do not constitute an emergency under the law. Making these consequences a direct, predictable result of a failure to fund the government is the only viable path to making funding of the government a routine process.

The President should set out policy now that directs the Secretary of Homeland Security, in the event of a shutdown, to close all border crossings, ports, and entry points, maintaining only the necessary Border Patrol personnel to keep the border secure. Customs functions at airports and ports should be shuttered, with the Coast Guard continuing to patrol the coast, keeping any ships from entering port.

The 40,000 employees of the Transportation Security Administration don’t need to come to work at all, nor for that matter air traffic controllers. The best way to protect the safety of human life among the flying public is to ground aviation. 

Outside of Homeland Security, the President is likely to find many other functions that can be curtailed.

President Trump should quickly issue an executive order to provide guidance for an orderly shutdown of the federal government in the event of a lapse in funding that gives these and other similar directions to agencies.

By making the consequences of a government shutdown as severe as they are meant to be under the law, even this Congress and this President would balk at taking that step.

Rob Knake is a senior fellow at the Council on Foreign Relations. He served in the Obama administration at the Department of Homeland Security and the National Security Council.