I am venturing into unfamiliar territory. Last week, occasioned by the Republican Party’s apparent belief that compromise is a four-letter word, the federal government began a partial shutdown of its facilities and services. Although I usually avoid writing about politics, the current fiscal mess in Washington is – to paraphrase Helen Reddy – too big to ignore. Sadly, this crisis, which will, among other evils, defund large swaths of the federal justice system, is the product of a carefully-orchestrated assault on our constitutional system of checks and balances.
Let me be clear at the outset: The issue is not whether the Affordable Care Act is sensible policy, or even whether it is constitutional. Reasonable people can disagree about each of those questions – and, indeed, reasonable people did so, which is why Congress debated the ACA’s passage and the Supreme Court then opined on its legality. The issue is whether the minority party, having lost the battle over the ACA in two branches of government and having twice failed to elect one of its members to head the third, can then shut off the lights and tell everyone to go home.
Over a century ago, a great and principled Republican, Speaker of the House Tom Reed, risked his political career to end the so-called “silent” or “disappearing” quorum. In Reed’s day, the Democrats were the minority party and would remain silent, or absent themselves, when he called the roll in order to prevent a quorum – and thus frustrate Republican legislation. (His battle over the silent quorum produced some tragicomic moments, such as when one Democratic congressman kicked open the doors to the House chamber – which Reed had ordered locked and chained – in an attempt to actually disappear prior to a vote.)
Reed waged that battle because he knew that the business of government is to govern – and his defeat of the silent quorum preserved that core principle of our constitutional system. We have checks and balances on majority rule, of course, but the rights of the minority party are preserved by the freedom to debate and to persuade, not the freedom to take the government over a cliff in a high-stakes game of chicken gone horribly wrong.
House speakers once were made of better stuff. In Tom Reed’s seat, we now find John Boehner, who, infected by the responsible-governance-be-damned mania of certain elements of his party, told the Senate that all it has to do is “say yes and the government is funded tomorrow.” Say yes, that is, to defunding or delaying implementation of the ACA, even though Congress passed it, President Barack Obama signed it and the Supreme Court upheld it. I’m not sure if Boehner’s demand is blackmail, or simply the petulance of a child who storms off the court with the ball when he loses, but I have some bad news for him: When you run out of branches of government, Mr. Speaker, you don’t get to close down Washington out of spite.
Unfortunately, Boehner has ridden a tiger and now dares not dismount. The Republican congressional leadership has spent most of Obama’s presidency pandering to the Tea Party for tactical gain and the bill has now come due. Much of the Republican rank-and-file actually believes the sound bites they’ve heard over the last five years: government is bad; the president is a socialist; your freedom is at stake. (Maybe Boehner and Senate Majority Leader Mitch McConnell believe those things, too. I’m not sure if it’s a compliment, or an insult, to think that they are Machiavellian, not messianic.) Little did Boehner’s Boys realize that the price for their obstructionism would be this high.
Whatever our individual political views, as lawyers, we should be doubly outraged at this farce in Washington. Not only will the shutdown impact the judiciary – among the immediately affected is the Justice Department, which has postponed nearly all civil litigation and furloughed 15 percent of its employees – but the rule of law itself is at stake. Our Constitution balances the will of the majority with the rights of the minority by providing the minority with avenues to express its point of view; but our system cannot endure if the minority forces the government to commit slow-motion hara-kiri.