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Why Government Shutdowns Are a Much Bigger Deal Than They Used to Be

5 minute read

Money to keep the U.S. government up and running could be about to run out — again. As of Thursday, Congress still hasn’t reached an agreement on passing the 12 appropriation bills that the provide annual budget, and its third extension on making that decision is about to expire on Friday.

The hope is that there won’t be a repeat of the most recent shutdown, which lasted 16 days from in October of 2013 — the third-longest government shutdown, after a 21-day shutdown during the Clinton administration (Dec. 5, 1995 to Jan. 6, 1996) and an 18-day shutdown in 1978, during the Carter administration.

But, while a 1978 shutdown sits in that top-three list for the longest shutdowns, duration isn’t the only thing that matters when it comes to measuring the impact of such a shutdown. In fact, length aside, U.S. government shutdowns have gotten much worse since 1980. It’s only since then that average Americans could see such shutdowns lead to widespread disrupted government services, from visa office delays to closed museums and national landmarks. And such visible symbols of disruption in government are largely thanks to a re-interpretation of a 19th century law that had lost its bite.

During the Carter administration, Congress couldn’t pass the budget on time, and President Carter asked Attorney General Benjamin Civiletti how that would affect the management of the federal bureaucracy. Civiletti returned with a legal opinion on the Anti-Deficiency Act of 1870. For background: This law was originally designed to get spending under control after the Civil War jacked up defense spending and the government debt. It did that by limiting the Executive Branch to spending only what Congress authorized for each fiscal year. As TIME has previously reported, it was “enacted by Congress to stop the then-routine practice of agencies intentionally overspending, secure in the knowledge that Congress would eventually have to pick up the tab.”

Over time, however, enforcement of the law grew lax. By the 1960s and ’70s, it was “not taken that seriously at all,” as Charles Tiefer, a former legal advisor to the House of Representatives and University of Baltimore School of Law professor told NPR in the walk-up to the 2013 shutdown. Presidents and federal agencies regularly switched to credit, continuing their work with or without a budget, knowing they would be funded retroactively.

Then, in an April 1980 opinion, Civiletti wrote that there is no gray area on this issue. The opinion didn’t overrule any longstanding precedent, Howell Jackson, professor at Harvard Law School, tells TIME, but it still made a big difference.

“The legal authority for continued operations either exists or it does not,” Civiletti wrote. “There is nothing in the language of the Antideficiency Act or in its long history from which any exception to its terms during a period of lapsed appropriations may be inferred. Faithful execution of the laws cannot rest on mere speculation that Congress does not want the Executive Branch to carry out Congress’ unambiguous mandates.”

The only funds that can be expended are ones that are “necessary to bring about the orderly termination of an agency’s functions.” In a key exception to Congressional authority on this matter, he writes, the Executive has “leeway to perform essential functions and make the government ‘workable.'” Anyone whose federal job is “nonessential” stays home.

And the country took Civiletti seriously. “Every federal employee knows about the Antideficiency Act because they can go to jail if they spent money that is not appropriated,” says Jackson.

The first government shutdown after Civiletti’s clarification of the law’s meaning is the one that took place on Nov. 23, 1981, when President Ronald Reagan ordered the furlough of 241,000 of the 2.1 million federal employees “deemed nonessential to protect life, national security or Federal property,” thus marking “the first time a chief executive has ordered so massive a shutdown of federal operations,” the Washington Post reported on Nov. 24, 1981.

Here’s how Reagan—who famously promised to reduce government spending when he was elected in 1980—explained why the furlough was necessary:

This resolution presented me with a difficult choice: either to sign a budget-busting appropriations bill that would finance the entire government at levels well above my recommendations—and thus set back our efforts to halt the excessive Government spending that has fueled inflation and high interest rates, and destroyed investments for new jobs—or to hold the line on spending with a veto but risk interruption of government activities and services.

I have chosen the latter. The failure to provide a reasonable resolution means that some citizens may be inconvenienced and that there is a possibility of some temporary hardship. Nevertheless a far greater threat to all Americans is the sustained hardship they will suffer by continuing the past budget-busting policies of big spending and big deficits.

Thus, just as Reagan wanted to make good on a campaign promise, many shutdowns have about more than just keeping the lights on—i.e. the showdown over tax cuts between leaders of opposite political parties President Bill Clinton and Newt Gingrich in 1995 and 1996, or President Obama’s health care law in 2013. Likewise in 2018, it looks as if lawmakers may not be able to reach an agreement to keep funding the government until they can agree on whether to keep the Obama-era program aiding Dreamers.

What’s unusual, notes Jackson, is that such shutdowns are thought of as something that happens when the federal government is divided along party lines, something that would ordinarily not be an issue in Republican-controlled Washington. The party may still resolve the matter in time — but if not, another shutdown would soon be added to the list.

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Write to Olivia B. Waxman at olivia.waxman@time.com