Ending the government shutdown in court


So what if Congress and the president cannot reach an agreement to end the partial government shut-down or worse, extend the debt limit? Is the country hopelessly stuck in the middle of a political dispute? Not necessarily. Ignored in the entire dispute is one obvious resolution –the Supreme Court. While some may argue that budget and finance matters are no place for the courts to venture, the partial governmental shutdown and the pending debt limit extension both represent controversies that have a legal or constitutional basis that can be addressed by the courts.

Alexis DeTocqueville declared in a famous and often quoted passage in his Democracy in America: “There is hardly a political question in the United States which does not sooner or later turn into a judicial one.” Over time the courts have entered to resolve many contentious political disputes in America, both because the other branches have failed to act, but also because these disputes implicated constitutional legal questions.

Questions about reapportionment, presidential power to seize the steel mills during the Korean War, executive privilege and subpoenas, and presidential foreign policy power all implicated difficult political questions often involving interbranch conflicts, but they also bore important constitutional questions that the Supreme Court eventually resolved, for good or bad, depending on your perspective. While at one point the old political question doctrine deemed many issues non-justiciable (the courts should not hear them), since Baker v. Carr, 369 U.S. 186 (1962) the courts have found fewer and fewer disputes to be beyond the purview of judicial review. The same can be said with the partial governmental shutdown and the extension of the debt limit.

First, there are constitutional obligations that require funding. No matter what Congress and the President fail to do, they cannot let the federal courts close. One can argue that failing to fund the judiciary is a violation of Article III, section I in two distinct ways. First, there is a separation of powers problem in forcing the courts to close if no agreement is reached on the debt limit. Congress does not have the authority to act in a way to undermine the constitutional powers of the judiciary. Second, Article III, Section I declares that judges shall receive a “Compensation, which shall not be diminished during their Continuance in Office.” Defaulting on the debt limit and running out of money for judicial salaries clearly flies in the face of this language.

Some might argue that running out of money is a legitimate reason for why Congress may not allocate money to pay the judges and keep the courts open. However nothing in the text of the Constitution permits this exception. Moreover, today it is the debt limit, maybe next time Congress uses the excuse “We are out of money” to punish the judiciary for opinions it does not like.

Second, Section 4 of the Fourteenth Amendment states that the “validity of the public debt of the United States…shall not be questioned.” In refusing to extend the debt limit this is exactly what Congress (and the president) are doing. They have a constitutional duty or obligation to fund the government.

Third, think of the entire budget as a legal obligation. Whether it is payments to bondholders, Social Security checks to grandma, food stamps and WIC to the poor, or Medicaid reimbursement payments to the states, the federal government has created legally binding obligations to third parties. Were any of these creditors to sue in federal court they would have suffered the requisite injuries to have standing and ask the court to compel the federal government to fund their obligations.

But what if a court did order Congress to pay its debts, what then? Can it do that? In Minnesota where the state government has shut down twice because of political disputes between the governor and the legislature, its courts ordered funding for essential governmental functions. The judiciary ruled that the State had legally binding obligations and it directed the Minnesota Department of Revenue to disburse funds to pay its bills. While the authority of state and federal courts are different, Minnesota‘s experience points to a path for the federal courts to act. Moreover, in some cases, such as in Missouri v. Jenkins, 495 U.S. 33 (1990), the Supreme Court has ruled that courts do have the authority to order taxes increases and expenditures to fund court orders. This could also be the case here with the shutdown or the extension of the debt limit.

Finally, critics might argue that Supreme Court decision ordering the government to pay its bills would be unenforceable. Perhaps, but such an order might serve as a catalyst for change, providing conditions or incentives to compel negotiation. In effect, many court orders, or even the threat of litigation, encourage settlement or negotiation. This is exactly what is needed now.