Law and politics are intertwined; the political ideas derive their legitimacy through the vehicle of law. Francis Fukuyama, while tracing the origins of these political ideas in his celebrated article ‘The End of History’ (that later became main thesis of his book titled ‘The End of History and the Last Man’) noted:
“For better or worse, much of Hegel’s historicism has become part of our contemporary intellectual baggage. The notion that mankind has progressed through a series of primitive stages of consciousness on his path to the present, and that these stages corresponded to concrete forms of social organization, such as tribal, slave-owning, theocratic, and finally democratic-egalitarian societies, has become inseparable from the modern understanding of man.”
The US was obviously in the imagination of Fukuyama when he alluded to ‘democratic-egalitarian’ societies. The US government shutdown, like many other events, has underlined the gap that exists in translating the intellectual components of political ideas into law which, thereupon, shape political behaviour. The instant adumbration will try to examine the constitutional aspects of the US government shutdown and its relationship with the international relations.
I. The legal framework
In the architecture of the US Constitution, the powers of the organs of the state – the executive, the judiciary and the legislature – are calibrated. All these organs are interdependent and this is what leads to the famous system of checks and balances and the separation of powers. In the context of the shutdown, the ‘purse’ is at the heart of the debate. Due to the relationship of the lawmaking and the budget-making, the power to authorise expenditure from the government exchequer is vested in the Congress vide two constitutional clauses:
1. Taxation clause: The US Constitution allows the Congress exclusive power to lay taxes that fill the government ‘purse'; Article I, Section 8, Clause 1 reads:
“The Congress shall have power to lay and collect taxes, duties, imposts and excises, to pay the debts and provide for the common defense and general welfare of the United States; but all duties, imposts and excises shall be uniform throughout the United States.”
2. Appropriation clause: The taxes collected, and other revenue generated, can be expended by authorization from the Congress. The Congress does it through legislation on money bills in the form of appropriation bills, continuing resolutions and supplemental bills. The constitutional basis for the appropriation clause is Article I, Section 9, Clause 7 which is reproduced hereunder:
“No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law; and a regular Statement and Account of the Receipts and Expenditures of all public Money shall be published from time to time.”
a. Anti-Deficiency Act, 1884: Besides the constitutional legislation, the Anti-Deficiency Act, 1884, was enacted by the Congress to control its appropriation powers. The law prohibits appropriations beyond the available funds. The law required proper authorization of budget for the government spending and any expenditure beyond the authorized budget limits has then to be further authorized through supplemental money bills. In case the political parties are unable to agree on the authorized budget, the earlier budget is authorized through continuing resolutions.
b. The Hastert Rule: In addition to the constitutional law and the primary legislation, a delegated rule by the Congress for processing of money bills is central to the instant shutdown. The rule is called Hastert Rule and was introduced by the Republicans in 1990s. It is called ‘the majority of the majority rule’ and is a product of bipartisan politics. It is argued that the US government shutdown is triggered more because of the Hastert Rule than the constitutional framework. The Hastert Rule prevents tabling of a money bill in the Congress that is not agreed to by the majority party.
The legal framework governing the US government shutdown will inform upon the fact that, in practice, sometimes the delegated legislation is so practiced that it controls the constitutional legislation and the whole scheme of the system is stalled.
II. Primacy of the US president and the international relations
While the Congress has the exclusive power to legislate on authorization of the expenditure, the office of the President of the United States is vested with the executive authority and it is mandated to do only the lawful expenditure. If expenditure is not authorized, it cannot spend the money that leads to ‘shutdown’ of non-essential services/functions of the government. Admittedly, the present shutdown is not the first in the history of the United States. However, given the acute positions taken by the Congress and the President, it is affecting many an American. That may be so, but the important question is the primacy of the Office of the President in the United States that has the potential of upending the US system of governance. As it is well known that the shutdown is linked with a foreign affairs matter (erecting wall on Mexican border), the increasing role of the Presidency in foreign affairs is upsetting the checks and balances envisioned by the framers of the US Constitution.
On a larger plane, Congress is trying to assert its legislative authority to offset the primacy acquired by the Presidency in executive domain, including in foreign affairs. Whether this can truly be treated as a matter of separation of powers or as a question of primacy of the power of the US President is arguable. The matter is not likely to rest here. The rollback from the international legal order that is deep-rooted into the ‘democratic – egalitarian’ setups along with unilateral moves by the US at international level from the matter of withdrawing from the US-Iran Nuclear Deal to the establishment of the US embassy at Jerusalem-all manifest the issue of primacy of the President in policy and decision making of the US. For outsiders, the ‘inter-mestics’ (international-domestic decision making) of the primacy of the Presidential power is an important aspect to predict the future course of America’s role in international relations.
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