Another Shutdown? How can any shutdown be legal?

[Huin]

In our constitution:
Amendment 10: "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."
The power to shut down normal lawful operations or avoid obligations of our government is NOT delegated.
Hence: Nobody in our United States government has the power or right to shut down our government.

Republicans: We just don't pass a bill to vote or vote against it if the president does not want to sign it, or he can veto it. We have the right to do that and he does too.
Answer: Amendment 9: "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." --- Meaning: No, you can't do that if the result is a shutdown. You have to do everything in your power [even if you don't want to] to keep the government running for the people of the United States.

Republicans: What if we don't? --- Answer: (with a question or two, or three) Well, when you were sworn in to your office or mandate did you not swear an oath to support the Constitution? What does that mean to you, if anything? Does that not mean you will do what you solemnly pledged to do?

[brooklynite]

1. What does the 10th Amendment have to do with it?

States have no role in the operation of the Federal Government.

[Huin]

13. You may be surprised

You should look at Article VII of the constitution. Its first clause says: "The Ratification of the Conventions of nine States, shall be sufficient for the Establishment of this Constitution between the States so ratifying the Same."

Article V of the constitution provides, in part: "The Congress, ... on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which ... shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified by the Legislatures of three-fourths thereof,..."

It seems that the state legislatures of 3/4th of the states have the final say of whats required by the constitution.

Interestingly, the often cited Preamble of the constitution states: "We the People of the United States, ... do ordain and establish this Constitution for the United States of America."
Yet, the constitution does not become established until after the ratification of the conventions of nine states. Does that not mean that the people in ordaining and establishing the constitution yielded to the higher authority of their respective states?

[brooklynite]

17. Yes, there's an option, under difficult conditions, for States to change the Constitution...

...which has nothing to do with States taking an immediate position on a Federal Government shutdown.

[Huin]

24. I agree

The States cannot interfere with the federal government. When I quoted the 10th, it actually says what I quoted (unless I goofed up). But I think when the constitution refers to the people, it means the people of each of the states. That might be what the wording in the 10th amendment means.

Thanks for your participation in this thread.
(Actually, this was my first discussion post, ever. An historic event for me.)

[dlk]

2. How Can Not Paying Workers be Legal?

[Major Nikon]

9. It's not per the FLSA, but that's a civil crime and not a criminal one

Federal employees who were forced to work without pay have lawsuits that will probably take years to resolve.

[malaise]

3. There will not be another shutdown come Friday

Take that to the bank - Don the Con cannot be that fucking stupid.

[smirkymonkey]

5. Don the Con: "Hold my Diet Coke".

Oh yes, he can! I put nothing past him.

[obamanut2012]

6. Second that n/t

[Major Nikon]

10. Even if he does it won't last long

It only took 10 controllers calling in sick and 1 hour of delays at La Garbage to open it back up. It's not as if they don't have known options.

[malaise]

11. Man you made me laugh

at La Garbage

[manor321]

4. This is wildly wrong

I hardly know where to begin.

Congress funds the Federal government. I don't know what the States have to do with it. They don't run the Federal government.

If Congress stops funding something in the Federal government, it stops functioning. That's how it works.

This isn't hard.

[Huin]

16. You are correct in part.

The tenth amendment concludes "... are reserved to the States, respectively, or to the people." That's how the constitution under which we live and die tell us where the powers lie that are not delegated to the United States. I merely quoted the constitution. Believe me I did not write it.

But regardless of whether the states or the people have the right to shut down the government, that's not of importance. I think the constitution was ordained by the people acting as agents for their respective states. I tried to explain that in an answer earlier. What is important is that I learned already in high school in American Government that our government is a government given specific powers. The 10th Amendment tells us unless there is a specific power delegated to any of the three branches, the government just does not have that power.

Congress can repeal a law or pass a bill to change a law. But as long as a law exists that needs to executed (not meaning beheaded), the president has a sworn obligation to do so. And Congress has a sworn obligation to assist him by providing necessary funds. This applies to established routine operations.
The 9th Amendment seems to forbid the U.S. government to cause havoc by shutting down any of its lawfully established operations. If the 9th does not say that, what does it say? That's how I see it and that is why I posted my thoughts.

However, I am looking forward to reading a well reasoned support that I am wrong.

[AncientGeezer]

7. You are misreading the 10th..and 9th individual rights.. The Bill of Rights

They have Nothing to do with the Federal Budgetary process....or the legality of a shut down.

Maybe read this...it's a simplified idea of how the Federal Budget process works.
https://constitutioncenter.org/blog/the-constitution-and-the-federal-budget-process/

[Huin]

18. Interesting but lets talk about it.

Thanks for the challenge.

You must agree the 10th refers to the powers delegated to each of the 3 governmental branches.

With repect to the 9th, it refers to rights, not powers. However, I believe you misread the 9th when you say "individual rights" which implies rights by individuals. That is not what the ninth means (or I am misunderstanding what you mean). The 9th refers to the rights for the president or congress has that appear in the constitution. For example, Article I, Section 5, second paragraph states: "Each House may determine the Rules of its Proceedings".

So the Senate (McConnell) made a rule not to bring a bipartisan bill to a vote, because the president said he would not sign it. Here is where I think the 9th comes into play. Normally that is a right for him to do so, because it is an expedient. However, if that bill is a stop-gap bill that would keep the government from having to shut down because of lacking appropriations, then he has construed his right to make a rule to deny or disparage a right of the others which were retained by the people, namely to collectively decide whether to cause a shutdown of the government under this constitution. As I tried to explain in an answer to a reply above, only 3/4th of the States can implement changes to the constitution like giving it the right to shutdown for lack of appropriations.

Besides that he may have violated his oath of office by not allowing the stop-gap bill to be voted on, I believe he may also have done the same by not following the procedure prescribed by the constitution, Art. I, Sect. 7, second paragraph. "Every Billl which shall have passed the House of Representatives and the Senate, shall, before it become a Law, be presented to the President of the United States;" Running to the president and asking him if he will sign the bill into law, and then killing the bill without a vote seems to be a clear violation of the concept of separation of powers built into our constitution. Moreover, had he passed the bill to a vote, 1/5th of the members present could have asked to have the Yeas and Nays made of record. Diligent voting citizens could then have used that record to determine which of the members of congress abide by their oaths and keep the government running or which cause reckless havoc. I believe knowing who does what is the essence of a democracy.

In regard to the inability of the president to withdraw funds without apppropriations, I am well aware of that. It is therefore urgent that an appropriations bill is passed. I believe that is an obligation of the current government (Congress and Executive) to correct an existing error in any law that allowed the operations that would be affected to run out of funds in the first place. I read the article you cited. Nevertheless I am not convinced that any shutdown is not an act outside of the powers of the government and a wrong committed agains the people of the United States.

[AncientGeezer]

28. I'm not misreading either...they have ZERO to do with the bugetary process.

And neither side of Congress has to take up the passing of the other chamber

[Huin]

31. What does the 9th say?

The people of the United States have an absolute right to have their government kept running smoothly.
While each house may determine the rules of its proceeding, the Senate can certainly have a rule not to pass a bill to vote when it may lack the support for passage.
However, if that rule denies or disparages the people's absolute right to a smooth operation of their government by not passing a stop-gap bill the rule becomes inoperative because of the dictates of the ninth amendment., I believe a shutdown is a direct attack against the people of the United States, no different than a hostile nation taking over and imposing a military rule on our nation. It serves no purpose other than to destroy, cause havoc and allow our great nation to be ridiculed by the western world and laughed at by nations hostile to us. I have no compassion for such shenanigans within our government.

I appreciated your comments and participation in this discussion.

Having been told there is a tentative agreement on a budget I am hoping there will not be another shutdown, not now and not ever again.

[AncientGeezer]

38. There's your misunderstanging of the 9th...

"The people of the United States have an absolute right to have their government kept running smoothly. " That is not in the 9th..not even close.
The 9th says...and I quote..."The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." Again referring to people NOT the Federal Govt....it's easy reading.

Has ZERO to do with how the budgetary process works.
Ok....good... we should be clear on that...I would hope.

The House has their rules based on direct representation of the "people" in their districts...The Senate which represents the States...not the people..have a different set of rules.
It's not rocket science....your premise is flawed..I get your passion but shut downs are perfectly legal...and Constitutionally so.

Shut downs are not new.....

[Huin]

41. Read the 10th Amendment in conjunction with the ninth

Show me where in the Constitution the power is granted to shut down the government. I dare you to give me a citation for that. There exists no such power. Some States were hesitant to join the Union under our constitution. That's why there is a Bill of Rights. That's why the 10th makes it clear that if the United States is not given a power, the government just does not have it.

The 9th (quoted and annotated for purposes of this post) "The enumeration in the Constitution, of certain rights [such as <Each House may determine the Rules of its Proceedings,>], shall not be construed to deny or disparage others [such as the right to shut down the government which according to the 10th amendment is...] retained by the people."

The ninth merely says if you think you can do it indirectly, such as by failing to fund a law, or in this case even by not passing a bill that would fund currently agreed to operations, then you (I don't mean you, the person I am communicating with but meaning the person responsible for the horrendous damage done to our great nation) then you are denying or disparaging the right retained by the people to shut down the government. I say to that person: better re-examine the oath you took when you assumed your office to support the constitution and serve the people of these United States of America.

I hope I clarified that.

Thank you for your comments, but please take another good look at that great document that is the foundation of our great nation.

[AncientGeezer]

42. The govt is never "shut down"...

NO side of Congress is Constitutionally required to pass the legislation from the other chamber.
NO POTUS is Constitutionally required to sign Bills sent to hes/her desk...Spending or otherwise.

The 10 says nothing of the Federal budget process.

I'm not the 1 that doesen't know what the Bill Right(the 1st 10 a's) mean and what/whom they apply to.

Read this article...it shows the BoR's has nothing to do with shut downs..specifically...when it points to....The U.S. Constitution Article I, section 9, clause 7..NOT the BoR's
https://constitutioncenter.org/blog/the-constitution-and-the-federal-budget-process/

[Huin]

43. You are right the 10th says nothing of the Federal budget process.

But neither does any other part of the constitution.

And congress and the executive offices are not shut down. Nevertheless, contracts were breached and the good reputation of our country was smeared before the whole world. Are we wrong when we fear that our enemies are engaged in manipulating our government? Our country has never been looked upon with disfavor as it is now. Don't you feel that way too?

By the way you cited an interesting article. I read it quickly and bookmarked it to study it in detail.

Thanks.

[Turbineguy]

8. So, back in the day....

I was Chief Engineer on ships. I could shut the ship down with one button. But my job was to run the ship, not stop it. I could be fired for that.

Lots of people go to work every day to make the World run.

The President's job is to run the government. The Congress has the purse strings. The executive branch has to cope with that. The executive branch can complain and make its case.

If the president shuts down the government, he should be fired, just like anybody else who will not do his fucking job.

[BumRushDaShow]

15. Obligatory nod

(sorry I had to do it!!!! )

[Turbineguy]

21. Strange.

I always just doubled it....

[BumRushDaShow]

25. Well...

Scotty had a pretty big ship so....

[Turbineguy]

30. You made me look.

Mine's bigger by 11 feet

[BumRushDaShow]

32. Could depend on which

Enterprise - the original (~980 ft) or the A (~1001 ft).

The 1701-D (way after his time) was ~2108 ft.

[Huin]

20. Right you are.

But congress has to present him with a bill. If he vetoes it then congress should.

[Ferrets are Cool]

12. What really burns me is that THEY (and you know who THEY are)

gladly take our taxes to keep this GOVERNMENT alive and running. How can THEY take my money and NOT keep the GOVERNMENT running. And on more of a personal level, how can ONE man shut down the GOVERNMENT???????? HOW? HOW? HOW?

[Huin]

23. He needs money to pay his people

But I think he cannot legally refuse the money for meeting his obligations to keep existing operations running just because Congress does not think it proper to include taxpayer money or borrowed money for his Pet Wall. I believe that would be unconstitutional.

[AncientGeezer]

40. Any POTUS can veto ANY spending bill....Peroid. And it's Constitutional.

[Huin]

44. Sorry, but you need to look at the constitution and abide by it.

Yes, you are right for the most part.. The POTUS can veto "any" spending bill, except one. If the spending bill is passed to him for his approval and it contains ONLY the needed funds to keep legal obligations of the government funded thereby not impairing lawfully established and currently operating functions of our government, then he has no choice but to pass it.

Why? To assume his office, the POTUS had to take the following oath or affirmation: "I do solemnly swear (or affirm) that I will faithfully execute the Office of the President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States."

Should he veto such a pass-through spending bill that does nothing else but keep the government running, allowing it to pursue its normal, lawfully established operations, then he has violated his solemn oath or affirmation that allowed him to enter the Execution of his Office. He does have the right to veto, if the veto causes a failure to provide needed appropriations for the government to continue its lawful operations.

Why? Because the constitution charges the POTUS with an important obligation: "he shall take Care that the Laws be faithfully executed".

If his reason for a veto of the pass-through spending bill was that his pet wall was not funded, then he would be doubly in trouble because he used the veto and ensuing shutdown as coercion by his act putting himself ahead of congress and thereby destroying the concept of separation of powers, which is a basis of our democracy.

[AncientGeezer]

45. You are wrong..but you have shown that several times in this thread

Last edited Fri Feb 22, 2019, 02:51 PM - Edit history (1)

Find "Pass through Bills" in the Constitution

[Huin]

46. That's why I explained to you what I meant by it

the name of the bill doesn't mean a thing. I just named it that way. but I explained exactly what I meant by it. I cannot convince you of what I believe is reality, so let's just leave it. You have not really presented a well reasoned argument to me yet.
And you have not shown me in the constitution a power to shut down the government or to impair its vital functions to force your way illegally onto the American people. Period. Finito

[AncientGeezer]

47. I did....others in this OP have. Art.1 Sec. 9 SS.7 clearly describes the process for funding.

Last edited Fri Feb 22, 2019, 02:52 PM - Edit history (1)

There is NO Constitutional restriction on the Senate to refuse to pass a House Bill(or vice versa). Budgetary or otherwise.
There is NO Constitutional restriction on ANY POTUS to veto a Bill passed by Both Houses. Budgetary or otherwise. The States or people have no say until elections.
Congress can override..IF they have the votes.
There is NO Constitutional restriction on Congress being morons...we have a remedy for that in the Constitution..elections.

That's the beauty of the Constitution and our Govt..3 co-equal branches

[BumRushDaShow]

14. "How can any shutdown be legal?"

Because of this provision in the U.S. Constitution -

Article I

<...>

Section 9.

<...>

No money shall be drawn from the treasury, but in consequence of appropriations made by law; and a regular statement and account of receipts and expenditures of all public money shall be published from time to time.

<...>

https://www.law.cornell.edu/constitution/articlei

When Congress fails to enact appropriations (money to be distributed for government functions) then the federal government is forbidden from "spending" (goods, services, salaries) what has not been authorized by law (appropriations legislation). This is different from the "budget" which is a separate set of legislation.

This is why Democrats have been proposing to pass a law to have a Continuing Resolution automatically kick in (keeping the funding the same as a previous fiscal year) should Congress not pass the regular appropriations bills by October 1st (beginning of a new federal fiscal year).

[912gdm]

19. thank you for sanity. n/t

[Huin]

22. You also raise an excellent point.

A shutdown should only occur through a gross screw-up by congress. I fully agree, and that is a great idea you make reference to.
Also, in the future, for routine governmental functions established by law the necessary appropriations could be attached to each bill to be good for as long as the bill remains a law.
That only works for non-military appropriations. The constitution delegates the power to congress: "To raise and support Armies, but no Appropriation to that Use shall be for a longer Term than two Years;" Note "to that Use" , no such limitation applies to any other money appropriation. It is understandable that in time of war, expenditures go way up. So for the military spending congress needs to have the two year oversight to make adjustments if needed to prevent waste.
The paragraph saying: "No Money shall be drawn...." also requires that a regular statement of account of the receipts and expenditures of all public money shall be published from time to time, but that is regular bookkeeping. The way I read it, it has nothing to do with making the appropriations, just an accounting where did the money come from (from the bill with the appropriation attached to it) and where was it spent (paid the controllers and the park rangers).


Thanks for your comments.

[BumRushDaShow]

26. In response to this

A shutdown should only occur through a gross screw-up by congress. I fully agree, and that is a great idea you make reference to.

In 1980, a broad interpretation of the Anti-Deficiency Act (which has been amended several times over the past almost 150 years) essentially started the ball rolling on actually shutting down government functions when no appropriation has been enacted. Before 1980, agencies merely continued to expend at current levels until the new amounts were authorized, and lapses in appropriations did not lead to shutdowns.

A good article on this - https://www.theatlantic.com/politics/archive/2013/09/the-odd-story-of-the-law-that-dictates-how-government-shutdowns-work/280047/

Some other interesting related history -

Congressional Budget and Impoundment Control Act of 1974
July 12, 1974

The Congressional Budget and Impoundment Control Act of 1974, was signed into law creating the House Budget Committee on this date. The bill overhauled the Budget and Accounting Act of 1921, which had been intended to assist Congress in its appropriations role by requiring the President to submit an annual budget. As the process grew more institutionalized, Presidents sought to exert greater control over federal spending. Frustrated with President Richard M. Nixon’s impoundment of congressionally appropriated funds, Congress reasserted its budget authority. By shifting the federal government’s fiscal year from July 1 to October 1, Congress gained the time to respond to the President’s annual budget message and properly legislate federal spending. The act created both the House and Senate Budget Committees and the Congressional Budget Office (CBO). The CBO was charged with gathering data and estimates and supplying the committees with proper information to assist the federal budget process. The House Budget Committee became a standing committee on July 12, 1974, in the 93rd Congress (1973–1975), but it did not organize until August 14, 1974. Albert Ullman of Oregon served as the first chairman of the committee.

https://history.house.gov/Historical-Highlights/1951-2000/Congressional-Budget-and-Impoundment-Control-Act-of-1974/

Also, in the future, for routine governmental functions established by law the necessary appropriations could be attached to each bill to be good for as long as the bill remains a law.

This is already what they are supposed to be doing. Each Department/Agency is to have an appropriation associated with it and the various committees in both the House and Senate have hearings with representatives of those agencies after reviewing the Budget Request from the President, and then they start marking up the appropriations bills for eventual committee and full chamber votes. The problem is that the GOP has not prioritized having hearings for some departments that they feel are not important and have tried to craft appropriations language outside of the committee, and then ram it out of committee with only their votes or let it languish in committee until it is moved out in order to be jammed into an "Omnibus" or "Minibus" piece of legislation that combines the appropriations of multiple departments/agencies into a single or several bills.

So for the military spending congress needs to have the two year oversight to make adjustments

The problem is that "oversight" only seems to apply to everything thing else but this when the GOP is in charge.

The way I read it, it has nothing to do with making the appropriations, just an accounting where did the money come from

The "accounting" is where departments/agencies actually go through a financial reconciliation at the end of every FY. So, as an example, at my agency (I am now retired after 30+ years), they would start a phase-down of purchasing starting some time in August and by mid-September, the procurement system would be locked out for all but certain financial folks as they started working through the process of accounting for every penny. There are a number of different "buckets" of money that commitments and obligations use and some are not actually associated with appropriated money but must be accounted for. The spending reports are then sent to Congress for review.

[Huin]

34. Impressed by the complexity of this

Thanks for your reply with historical background. My reason for bringing this up was to raise a discussion and, maybe, someone will look in to allow government shutdowns to be put to rest, forever.

[BumRushDaShow]

35. The "shutdowns" are relatively "new" in the history of the country

Essentially only happening on and off during the past 40 years or so... but most notably thanks to Newt Gingrich, who as the GOP Speaker of the House at the time, made it a hostage-taking tool during the 1995-1996 shutdowns (the length of time of which was just surpassed by this last shutdown). The GOP has been using it for that purpose ever since.

[HopeAgain]

27. Not a lot of lawyers up this morning?

I think applying the 10th to NOT running the Federal Government is way beyond just a stretch. Besides, there is no Constitutional right to the operation of non-constitutionally created federal agencies.

[Huin]

36. What do you mean and what does the 10th stand for?

The constitution was to be a government of limited powers. The constitution gives to each of the three branches specific powers. The constitution delegated a multitude of powers to congress to make and shape this nation. The president on the other hand is given very few powers, nevertheless important, but different from those delegated to congress and to the judicial branch. The 10th amendment was included in the Bill of Rights to convince states who feared the federal government would be overreaching that the government was indeed on of limited powers. The power to shutdown legal operations is not delegated to our government. We the people own that right to its continued operation to secure the blessings of liberty to ourselves and posterity, as the preamble of the constitution aptly states.

With respect to your second sentence that there is no constitutional right to the operation of non-consttutionally created federal agencies, one might take isssue. The constitution only creates the three main branches, the legislative, the executive run by the president and the judicial headed the supreme court. But congress is given a general power to make all laws which shall be necessary and proper for carrying into execution the foregoing powers and all other powers vested by this constitution in the in the United States, or any department or officer thereof.

The constitution clearly recognizes that there shall be different departments to carry into effect the powers delegated by the constitution to the United States. And if any department needs a special agency to perform a specific action, and congress authorizes that agency, to properly carry out the delegated powers in the constitution, it would appear that such agency is as constitutional as the Department charged with the execution of the respective power.

So, you must forgive me, but I don't quite understand what you are driving at.

[HopeAgain]

37. Nothing in the 10th Amendment give States power to control the federal government

But nothing in the 10th Amendment says a State can prohibit a federal shutdown. The Tenth says the States have their own autonomous powers that do not conflict with federal Constitutional powers. It is not designed to give states control over the federal government, it is there to prevent overreaching by the Federal Government.

There's a big difference between a power and a mandate. Congress has the power to tax and spend. If they do not exercise that power wisely, then the Constitutional remedy is to not re-elect them. I see no reasonable federalism argument here without contorting the Constitution.

[duforsure]

29. Legality has never been

An issue for trump, and he'll either shut it down , or declare an National Emergency,or try to do another run around by using other funds and claiming something to use it with. He uses his powers to abuse the Constitution with, and as a weapon .

[peggysue2]

33. Bingo!

We're being lead by a bunch of mini-me mobsters who don't give a hoot about the Rule of Law. In fact, their basic desire is to break from any law that doesn't suit them. The Institution breaking is not a bug, it's the whole purpose. The Trumpster is wanna-be dictator/King and as such wants to rule without any accountability, the way he's run his entire life. His followers and hangers-on want the same thing or are being coerced into agreeing because they're compromised up to their eyeballs.

Trump has already warned that if he doesn't get the adequate funds, he'll 'move things around.' That means money. Mulvaney has threatened a 'firestorm' over funding shortages, says they'll rob the emergency disaster funds for Puerto Rico and California. Puerto Rico announced this morning that the island will be instituting water rationing; the island is nowhere near a comeback since the massive storm. As for California? They're all a bunch of liberal Democrats on the West Coast, so the Trumpster doesn't care--they're not his people.

So yes, the whole bunch of goons in the White House have decided to weaponize the power of the Executive branch, daring anyone to block them.

[jalan48]

39. Trump has got us chasing our tails. Manipulation is the game.