Government “Shutdowns” and the U.S. Constitution

In a wearyingly familiar recurrence, parts of the U.S. government shut down last week after Congress failed to approve funding for the new fiscal year. Though bewildering to foreign observers (and many Americans), these government closures reflect important features of the U.S. system of checks and balances. In that sense, they are a sign of constitutional strength rather than weakness, yet this shutdown, like other recent funding lapses, also shows that acute partisan divisions are complicating American governance.

The “Power of the Purse” in the U.S. System

In any constitutional system, the question of who controls the government’s money is important, and different systems may make different choices. The U.S. Constitution places this power squarely in Congress’s hands.

The Constitution’s Appropriations Clause states: “No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law.” An “appropriation” is a term of art for a law authorizing expenditure of funds, so this provision means that Congress must enact laws specifically allowing any government spending. At the same time, the Constitution requires the President to “take Care that the Laws be faithfully executed.” The President thus holds a duty to carry out laws that Congress enacts, including laws limiting or requiring spending.

These provisions reflect a deep history. In England, Parliament used its power over government funds to impose limits on the Crown and extract constitutional concessions. The framers therefore thought of control over spending as a central legislative authority.

From the beginning, moreover, the U.S. Congress picked up the British practice of enacting most appropriations only in limited amounts for limited periods (typically one year). In the British context, such time-limited appropriations enabled the legislature to maintain an ongoing check on the Crown’s actions, particularly with respect to warfare. In the United States, they have served much the same purpose with respect to executive policy.

Fitting Congress’s power of the purse into the U.S. constitutional structure nevertheless presents some puzzles. Reflecting the English historical background, James Madison lauded “[t]he purse” as a “powerful instrument” for “reducing, as far as [the legislature] seems to have wished, all the overgrown prerogatives of the other branches of the government.” As some recognized early on, however, the U.S. Constitution doesn’t leave the scope of executive authority entirely up to Congress. Instead, it gives the President certain enumerated powers, powers that in some cases exist to impose a check on Congress. As a result, some funding limits and conditions – a denial of funds to issue pardons, for example – should be unconstitutional.

For the most part, however, in the United States as in Britain, Congress’s control over appropriations is a vital check on the executive branch, and indeed one that may now be more important than ever. Today, administrative agencies overseen by the president often hold significant powers, and presidents have claimed broad authority over foreign affairs and the use of military force. By imposing limits or conditions on new funds – funds the President needs to keep the government running and advance his priorities – Congress can exercise an ongoing check on how those authorities are exercised.

How Congress Has Effectuated This Power – and Why It Leads to Shutdowns

Funding the government thus requires new legislation each year. But why does the government actually shut down when that annual funding runs out? The reason is an important statute called the Anti-Deficiency Act (ADA).

Originally enacted in 1870 and then periodically amended and strengthened, this law was part of a long-running effort by Congress to make its power of the purse more effective. For roughly the first 150 years of U.S. history, federal agencies not only continued operating when funds ran out but also often overran their appropriations during the fiscal year. They would spend as they saw fit and then come to Congress afterwards asking it to make up the shortfall.

This practice came to be called the “coercive deficiency” because Congress often felt it had no choice but to honor executive contracts and spending commitments even when they exceeded prior appropriations. Leading figures in Congress complained that this executive overspending was gutting Congress’s power of the purse, and Congress enacted the ADA and other reforms to bring such practices to heel.

Shutdowns are an important sign that these reforms worked. The ADA not only bars spending without an appropriation but also forbids “obligating” funds, that is, committing to spend them, without an adequate current appropriation. In addition, the law prohibits accepting “voluntary services . . . except for emergencies involving the safety of human life or the protection of property.”

These provisions bring about government shutdowns. If there are no current appropriations for salaries, government employees can’t come to work, because their work would create an obligation to pay them. And they also can’t volunteer to work for free in hopes of future payment, because then the government would be unlawfully accepting “voluntary services.”

Some functions, to be sure, may continue. The government has understood the “emergencies” exception to cover functions like air traffic control, prison supervision, and certain law enforcement efforts that bear some connection to protecting lives and property. As a result, people doing such jobs can keep working, even if the government doesn’t actually pay them until new appropriations fund their wages.

Both Congress and the executive branch have also concluded that certain constitutional functions, like advising the President or members of Congress on legislation, may continue. And some government officials, including Senate-confirmed senior officials, receive their salaries by virtue of their positions whether or not they show up each day, so the ADA does not prevent them from working.

Work outside such exceptions, however, should halt if Congress fails to enact new appropriations when the fiscal year ends.

The Problem of Partisanship

Shutdowns, then, are a function of important statutes that reinforce Congress’s power of the purse. Though frustrating, they reflect laws and institutional arrangements that help maintain checks and balances in the U.S. Constitution’s separation of powers system.

But why have shutdowns become such a problem? Unfortunately, the annual budget process has been breaking down, and this breakdown reflects larger challenges.

Enacting laws under the U.S. Constitution requires agreement between both houses of Congress (the House of Representatives and the Senate), plus approval by the President (or enactment by a two-thirds vote in both houses). In addition, to avoid a delaying tactic called the “filibuster,” spending bills normally require 60 votes out of 100 in the Senate.

As the American electorate has grown polarized between two parties with markedly different policy agendas, reaching the necessary agreement to enact legislation in this system has grown difficult. At the same time, the same political polarization has encouraged presidents to pursue partisan policy goals through executive action, a trend President Trump has extended to spending. In principle, broad claims of unilateral executive authority come at Congress’s expense, but the President’s co-partisans in the legislature often hold stronger incentives to support his agenda than to defend their own branch’s institutional interests. Thus, over the past nine months, Congress has done little to defend its power of the purse even as the Trump administration has asserted broader executive authority over spending.

All these trends have combined to produce the current shutdown. Having failed to complete new annual appropriations bills, Republicans in Congress hoped to enact a short-term measure to extend the period for negotiation. But Republicans hold only narrow majorities in both the House and the Senate, and Senate Democrats withheld the votes required to overcome a filibuster. Facing pressure from their own political base to fight against President Trump, Democrats are now demanding an extension of certain healthcare subsidies as the price of reopening the government. Yet the administration is employing the shutdown as a justification for yet more unilateral cuts to government programs. Everyone is playing hardball, even though basic government operations are at stake.

Shutdowns’ Dual Significance

Politics have thus combined with important laws and constitutional arrangements to produce a dispiriting failure to fund the U.S. government.

On some level, the U.S. separation of powers system, and particularly its bicameral legislative process, is to blame for this predicament. Yet other systems with different structures seem to be facing similar challenges. France, for example, is now paralyzed over budget difficulties, even though its constitution provides a mechanism for imposing a budget without legislation. Historically, moreover, legislative control over spending has been an essential check on executive governance. In both Bismarck’s Prussia and Meiji Japan, launching imperial wars required bypassing legislatures that didn’t want to pay for them.

Thus, government shutdowns in the United States are at once a sign of partisan division and a testament to constitutional compliance: they reflect the enduring force of a central congressional power. For all the harm and frustration they cause, abandoning that crucial check on the presidency would be far worse.