Everyone is looking for someone to blame for the federal government shutdown. Some have even pinned it on a guy who died in 1836.
For those who are saying that James Madison led the continental congress when they created a strong chief executive and left the power to pass a budget with Congress during the 1787 Constitutional Convention, it is a giant leap to blame him for what is happening today. This shutdown is about Congress attempting to use the budget to renegotiate Obamacare. That’s not something Madison or the framers could have conceived would ever happen.
Under the U.S. Constitution, Congress has “the power of the purse.” Article I of the Constitution specifically states, “No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law.”
Accordingly, both the Senate and House of Representatives must agree on a budget, which is then given to the President of the United States for signature. This separation of powers is one of the hallmarks of our democratic form of government. It has worked for hundreds of years and will survive the latest government shutdown, just as it has 17 times before.
Those who fault the framers for failing to include a fail-safe measure to ensure the continuous operation of the government don’t know their history. James Madison and his peers viewed disagreements over the best way to run the government as a good thing. During the peak of the debate between the Federalists and the States Rights advocates, John Adams and Thomas Jefferson managed to get things done together.
Attaching an amendment to defund or delay the Affordable Care Act to a continuing resolution to fund the federal government is a vast departure from the sort of give and take envisioned by the framers of the Constitution. Even Alexander Hamilton, who favored a lifetime term for the President, did not foresee this one.
Shutdowns are a relatively modern invention, with the first occurring in 1976. They also tend to occur when extraneous issues become part of the budget process. During the Carter Administration, federal funding of abortion was the key issue. Under President Reagan, civil rights, missile defense and funding the Nicaraguan Contras took center stage during budget disputes. All of the shutdowns ended in less than a month with a successful negotiation.
To move forward this time, the Republicans will have to accept that Obamacare is the law of the land and a minority of Congressmen cannot change the law. If the Tea Party Republicans choose to negotiate over the budget instead of other laws then the Democrats will have to make some budgetary concessions. This is what James Madison did envision.
Donald Scarinci is a managing partner at Lyndhurst, N.J. based law firm Scarinci Hollenbeck. He is also the editor of the Constitutional Law Reporter and Government and Law blogs.
