Oh, Dear, What Can the Matter Be?

Well, it ain't this:

On Day 25 of the longest government shutdown in United States history, Congress was no closer to resolving the impasse than it was on Day One. Since President Donald Trump rejected the easiest path out of the shutdown—declaring a national emergency and punting the issue of a border wall to the courts—over the weekend, the Capitol has seen its fair share of commotion. But none of that should be confused with movement toward resolution.

The partial shutdown of the government (occasioned because the final bill authorizing funding for the few remaining unfunded government agencies failed because Trump threatened a veto) is treated as a Constitutional mandate which cannot be resolved without political agreement or else the heavens will fall.  Actually, the declaration of a "national emergency" would be the Constitutional crisis, not simply ignoring this mess until Congress gets around to doing its job officially.  But no one wants to talk about that.

Why haven't we had this problem since the founding of the Republic?  There is no Supreme Court decision mandating this situation.  There is no Constitutional article, clause, or amendment requiring we do things this way or risk the validity of the Republic.  There is no statute, rule, or regulation saying it has to be this way.  Why do we do this?

According to an earlier Slate article (and Slate is not a monolith; it can publish wise articles and foolish ones, just like individual bloggers), the origins of this mess lay with Jimmy Carter's Attorney General, who issued an opinion that it was against proper practice for government agencies to function without current funding authorization.  Why he felt compelled to issue that opinion is one thing; why we feel compelled to operate our government this way, is another.

I'm most familiar with Attorney General opinions at the state level.  The Texas AG, who otherwise has limited legal authority in Texas (he cannot prosecute criminal cases, although his office can represent the state in all capital crime appeals; and while the Texas AG doesn't represent private individuals, the office and and does pursue child support claims on behalf of individuals who can't otherwise prosecute them), can issue legal opinions which are considered binding and authoritative unless and until a court of competent jurisdiction finds otherwise (directly or indirectly).  The AG of the US isn't as usually known for issuing such opinions (they are usually known for prosecuting criminal cases and civil matters), but such opinions do hold the same weight as opinions of the Texas AG:  i.e., legally binding as long as all parties agree they should be, and until a court says otherwise.

Aye, there's the rub:  tout le political demi-monde in D.C. has agree this legal opinion no one remembers or probably has ever read, demands that workers be furloughed and parks be shuttered and "essential workers" go unpaid but remain on the job, because we've always done it this way.  But is this any way to run a railroad?  Is this really necessary, really legally required, really a Constitutional necessity?  Is there no one who will rid us of the troubling legal opinion?

You, too, may be old enough to remember that the legal opinions of John Yoo and Alberto Gonzalez declared the United States could torture individuals with impunity.  Those legal opinions were repudiated by the next Administration, and yet the heavens did not fall, the foundations of our republic did not even tremble.  Why can't we revisit this legal opinion from nearly 40 years ago and decide it is unwise, invalid, and more trouble than its worth?  Why do we all agree we must do it this way?  Because we dare not say the emperor is unclothed?

Or is it because we think this situation, and this now-inevitable outcome (the third in two years) is a politically feasible mechanism?  We are entering into the longest government shutdown in history, something from which we will surely learn lessons.  Should that lesson be that the other side has to blink?  That a President with no political or negotiating skills whatsoever, whose word is as mercurial as the weather and as reliable as a 10-day forecast, should be able to knuckle the government to his intemperate will whenever he chooses to make a fallacious and unnecessary point?  Should the lesson be that the Constitution is indeed some measure of a mutual suicide pact and requires all concerned to cut off their noses to spite their faces?

Or can we actually be a little more sensible than that?  It seems to be declaring this "inevitability" to be nothing of the sort is actually the easiest path out of the shutdown.  After all, it isn't like a previous President declared a national non-binding referendum on a matter of absolute importance to the economy and even the nation, and set up a situation where the outcome of the vote can neither be followed nor ignored.

This ain't Brexit, people; this is just stupid.  We keep insisting the rule of law is beautifully clothed, when the naked truth is before us, and the rule of law isn't really even involved.  We are the ones holding the gun to our heads, threatening to shoot if anybody moves.

Boy, oh boy, are we stupid!