John Dean, who served as presidential counsel to Richard Nixon during the Watergate period in the early 1970s, has an interesting commentary on the tactics of current Congressional Republicans (The Legality of Government by Extortion: “As We Say, Or We Shut It Down”).
Dean asks, somewhat rhetorically: “Where in the Constitution does it say that one branch of the government can refuse to carryout its governing responsibilities if one of the other branches does not agree with it?”
His answers are interesting. Here’s a bit of his argument.
Writing in the Political Science Quarterly, in 2000, after the earlier GOP shutdowns in 1996 and when no shutdown was then looming, Columbia Law School professor Alfred Hill issued an informal opinion that only the briefest of shutdowns could be considered constitutional. He noted that our Constitution creates a government of laws, which can only be suspended by the enactment of another law. Professor Hill reported that a law cannot be changed, nor made inoperative, by withholding an appropriation that is needed for it to operate, so refusing to fund a program, agency, or department is unconstitutional. What the Congress is doing when it refuses funds is also unconstitutional because it frustrates the president’s Article II, Section 3 responsibility to “take care that the Laws be faithfully executed.”
There has long been a legal doctrine that deems contracts or procedures to be unenforceable if they are unconscionable. An unconscionable situation arises when one side takes unfair advantage over the other. This is the case where there is a “gross overall one-sidedness” in the dealings of the parties. As the U.S. Supreme Court has noted, “an unconscionable …[situation] is one which no man [or woman] in his senses, not under delusion, would make, on the one hand, and which no fair and honest man [or woman] would accept, on the other.” A Republican threat to shut down the government, or destroy the American economy, creates an unconscionable situation. It is American policy to not negotiate with terrorists, for they seek an unconscionable bargain. So too with Republicans who seek an unconscionable bargain.
In any case, worth reading.
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I agree with and support this post. Hopefully the case is being formed (by people much smarter and more patient than myself) to charge these clowns with sedition or some appropriate crime. This weekend there have been many postings all over the net regarding the neo-confederates, how their racist motivation is pushing the tea party and like this persons opinion piece how unconstitutional it is to shutdown the Federal government. Without the Citizen United decision, this would not be happening.
For those of us in the political trenches, the current situation must be dealt in the daily reality of trying to survive in an ever evolving political environment where the players often lack any real common sense. On the national level, the simple fact that the entire GOP House voted against Obamacare in 2010 seems to be lost on the Democrats and President Obama who now dig in their heels expecting reasonable responses from the GOP.
Politics suppose to be the art of compromise. Where opposing ideas and concepts are debated and a middle ground found to provide a framework to guide our lives. It is not set in stone and laws are meant to be amended to change with the times. (Remember the college course that talked about thesis, antithesis and synthesis?) That was the fundamental concept of a democratic government.
Currently, our government is now a system of seeing who you can throw under the bus faster. Politicians do it to their opponents on a regular basis to survive and even to their “friends” when their paranoia starts to get the better of them.
So for those expecting a quick resolution to this stalemate in Washington, I would not take any bets on it and certainly won’t be holding my breathe to see the government up and running soon.
Why do people living in these states keep (re)-electing these nutburgers? Why don’t they find good , reasonable people to run in their House districts instead of staying at home on Election Day?
Worthwhile read. Thanks for sharing.
Compromise, by definition, requires give and take on both sides. I don’t see any give from either republicans or democrats so I don’t see that either can point the finger at the other and say it is your fault. You are the cause of this impasse.
The “give” on the Administration/Democratic side has been well-documented up to the point that TP Republicans came up with using the budget to supposedly “repeal” three-year old legislation tested at both the ballot box and the Supreme Court, a tactic that is plainly unconstitutional (Dean) and makes government disfunctional.