Jurisprudence

Trump’s Shutdown Is a Natural Extension of Past GOP Brinkmanship

Nancy Pelosi, Mike Pence, Donald Trump, and Chuck Schumer sitting in the White House.
Nancy Pelosi, Mike Pence, Donald Trump, and Chuck Schumer wait to start a meeting at the White House on Dec. 11 in Washington.
Brendan Smialowski/AFP/Getty Images

We are in the midst of a historic government shutdown. While polls suggest that Trump and the GOP are taking the brunt of the blame for it, some Republicans and members of the media argue that “it takes two to tango.”

Both sides–ism isn’t the answer, though. The history of shutdowns gives clear guidance about which side is responsible: the side that rejects continuing budget resolutions in order to force a change in the status quo. In this shutdown, that has clearly been Trump and congressional Republicans.

The conflict ties directly into a pre-existing academic debate about how and why parties play “constitutional hardball.” As Joey Fishkin and David Pozen wrote in a recent Columbia Law Review article titled “Asymmetric Constitutional Hardball,” the political science literature on asymmetric polarization and political structures demonstrates that Republicans are now the party that is more likely to escalate constitutional battles.

Replying in the Columbia Law Review to Fishkin and Pozen, David Bernstein offered a contrary interpretation suggesting both sides are to blame: “If the President and Congress are unable to reach a compromise that would lead the President to sign a spending bill passed by Congress, both the President and Congress played constitutional hardball to shut down the government.” His case is unconvincing.

Bernstein points to what he calls the “Reagan and Bush shutdownsto argue that both parties engage in this sort of constitutional brinkmanship. Essentially, he claims that congressional Democrats working with Republican presidents used constitutional brinkmanship to shut down the government throughout the ’80s and early ’90s. Looking at each of these so-called shutdowns, however, it’s clear that there really weren’t “Reagan and Bush shutdowns” of any practical significance, and Bernstein’s both sides–ism isn’t justified.

The 1981 “shutdown,” the first of Bernstein’s list of nine such events, lasted just two days with one furlough day, while the 1982 “shutdown” was actually just a one-day-long accidental stoppage. The remaining shutdowns under Ronald Reagan and George H.W. Bush were not accidental, but according to the Washington Post, they were remarkably short: three, three, two, one, one, one, and three days, respectively.

When the New York Times examined the question in 1995 just prior to the Gingrich-Clinton shutdown, it found there had only been four previous short-lived furloughs for a grand total of one day, two afternoons, and a long weekend of government workers being sent home. I grew up in the D.C. area in the 1980s and early 1990s, the child of a nonessential federal employee, and I have no recollection of these furloughs, probably because they were nonevents.

In fact, short funding gaps often do not constitute shutdowns at all, which means no real constitutional “hardball” was played in the circumstances cited by Bernstein. Even in the current shutdown, for about 10 days, departments and agencies were able to run on “carryover cash.” But since then, the effects have caused unavoidable damage. The Reagan and Bush funding gaps seem to have produced no major harm.

In light of these details, it makes sense that Fishkin and Pozen did not include these minor events in their analysis of who plays constitutional “hardball.”

Bernstein’s view of shutdowns is that each party is equally responsible: It takes both Congress and the president, effectively both parties, to tango. However, this is not how shutdowns play out, practically, politically, and legislatively. When the president and Congress reach a budget impasse, the conventional next step is to pass a continuing resolution to keep the government funded at the status quo, to extend the previous budget while negotiations continue.

Every once in a while, one side says, “No, no continuing resolution unless we get X, a change in the status quo.” Practically and politically, the side that rejects the continuing resolution because of a demand to change the status quo is the side bearing more responsibility for the shutdown. In the 1980s and early 1990s, Presidents Reagan and Bush were generally seeking changes to the status quo in terms of budget cuts, but Democrats often had their own demands as well. But because both sides generally shared responsibility and had relatively balanced sets of demands, each impasse was resolved quickly with minimal furloughs, if any. There was not much hardball played on either side.

Again, the shutdowns of the mid-1990s and the 2010s have been different. In 1995, Gingrich and Senate Majority Leader Bob Dole passed a continuing resolution that did not extend the status quo but increased Medicare premiums, deregulated environmental policies, and included a balanced-budget requirement. Clinton wanted a status quo continuing resolution. The impasse led to two shutdowns, lasting a total of about four weeks, that were far more significant than anything that came before them. Yes, Clinton vetoed the GOP measure that modified the status quo, but he spoke out forcefully against shutdowns and sought to keep the government open during negotiations. As seen in that shutdown and this one, the continuation of the status quo is the nature of norms and conventions, and the changing of the status quo is the nature of hardball.

The 2013 shutdown involved a similar dynamic as that of 1995–96: House Republicans were able to get Senate Majority Leader Harry Reid and President Barack Obama to compromise closer to the Republican budget numbers. But Sen. Ted Cruz and the Tea Party House members blew up the deal in order to try to get Obama to sign a bill defunding his signature achievement, the Affordable Care Act. This version of hardball was obviously never going to succeed, but the Tea Party wing of the Republican Party was able to force the entire caucus to shut down the government for half of October. Again, the capacity of the right-wing backbenchers of the Republican Party to have this kind of control over its leadership in 2013 confirms Fishkin and Pozen’s understanding of who plays hardball.

Democrats were more responsible for the January 2018 shutdown, because they were pushing for the change in the status quo for immigration reform and DACA. That shutdown, though, lasted only from a Saturday through a Monday, effectively a one-day furlough. And the Democrats essentially folded, without any concrete concessions. So much for hardball.

Ultimately, in the 2018–19 shutdown, Trump is the one to blame because he has rejected the status quo of continuing resolutions in favor of demanding new funding for a wall on the U.S.-Mexico border. Trump has even famously acknowledged that this was his asymmetrical decision, having told Democratic leaders Chuck Schumer and Nancy Pelosi, “I will be the one to shut it down. I’m not going to blame you for it.” Trump has not lived up to that promise, as he increasingly tries to blame Democrats the longer the shutdown lasts. However, this history helps us attribute responsibility and blame to the side rejecting continuing resolutions and the status quo, regardless of whatever the president might tweet.