Let me tell you why I didn’t write Thursday on the raging fight among Senate Democrats about whether or not to vote for the continuing resolution to keep the government from shutting down on Friday. It’s because it is so fucking complicated. I read a lot. I did a bunch of research. I saw all the heat on social media. I texted back and forth with my podcasting partner Brendan Skwire. But after all of that, I could not game it out to my satisfaction. The most accurate statement I saw all day came from Democratic Sen. Cory Booker of New Jersey who said, “We are in a perverse bizarro land where we’re having to decide between letting Donald Trump wreck the government this way or wreck the government that way.”
“This way” is funding the government through September knowing that Trump intends to ignore how Congress wants the money spent. “That way” is shutting the government down knowing that Trump is completely prepared to exploit a shutdown to accelerate his destruction of the administrative state and merit-based civil service.
Booker was very clear that he prefers a government shutdown because funding the government under these circumstances “is saying, let’s just give up even more of our Constitutional authority, because, hey, he can do a lot worse later on. And so to me, that’s capitulating to someone who’s already showing that he’s reckless and willing to do a lot of destruction.” But he recognizes that there is no winning move.
Senate Minority Leader Chuck Schumer ultimately took the other side, as he explained in the New York Times. I’ll be honest with you, though. Schumer did his best to explain his rationale, but he still had to dumb it down too much to be very convincing. And, I understand. Trying to explain this stuff is daunting. I don’t think it’s conceited to say that I know more about congressional procedure, reconciliation bills, appropriations, debt ceilings and government shutdowns than 99.9 percent of the people howling about this decision on the internet. But I can’t get my mind around this problem well enough to decide conclusively what decision is right, and that makes explaining the pros and cons really difficult.
So, I’ll start with something very simple. The congressional Democrats cannot win here and many people unfairly believe that they can and are seething mad. It’s fair to be mad about past mistakes that led us to a second Trump administration, but it makes no sense to ask powerless people to do things they cannot accomplish.
There are only two institutions in the country that have the power to stop what Trump is doing to the government: congressional Republicans and the Supreme Court. The congressional Republicans are enabling him, so the only recourse left is the Supreme Court, and it’s controlled by a 6-3 Republican majority. Any strategy with any hope for success has to game out the most promising way to fight this out in front of conservative Justices Samuel Alito, Neil Gorsuch, Clarence Thomas, Brett Kavanaugh, Amy Coney Barrett and John Roberts.
And there’s a lot for them to decide. The two biggest issues are how Trump is attacking the merit-based civil service and how he is impounding or making recessions in congressionally mandated spending. While everyone on the internet was screaming at the Senate Democrats to shut down the government on Thursday, a federal district judge in California ruled “that the departments of Veterans Affairs, Defense, Energy, Interior, Agriculture and Treasury reinstate thousands of probationary employees who were fired last month” and that ” any further terminations of probationary employees must be made by the departments or agencies themselves, within the regulations outlined in the Civil Service Reform Act and the Reduction in Force Act.”
That’s a huge win, if it stands. But a government shutdown could squander that win, as Schumer obliquely explained:
A shutdown could further stall federal court cases and furlough critical staff members — denying victims and defendants alike their day in court, dragging out appeals and clogging the justice system for months or years…
…a shutdown would give Mr. Trump and Mr. Musk permission to destroy vital government services at a significantly faster rate than they can right now. Under a shutdown, the Trump administration would have wide-ranging authority to deem whole agencies, programs and personnel nonessential, furloughing staff members with no promise they would ever be rehired.
The decisions about what is essential would, in practice, be largely up to the executive branch, with few left at agencies to check it.
…In a protracted shutdown, House and Senate Republicans could bring bills to the floor to reopen only their favored departments and agencies while leaving other vital services that they don’t like to languish.
One way of looking at this is that on Thursday, a federal judge ordered the administration to rehire most of the probationary workers they have fired but the Democratic base was demanding that Schumer hand that win right back to Trump by giving him the opportunity to furlough whole departments in perpetuity. For Schumer and those who share his position, this is a trap. The Supreme Court might ultimately uphold the district court’s decision, but it would be meaningless if those jobs are destroyed in a different way, and in an even more severe manner.
But there’s another side to the legal argument, as expressed by David Dayan in The American Prospect. Before I get to his case for a shutdown, I want to show that he’s aware there is an argument against one, including a 30-day provision that Schumer bizarrely didn’t mention.
There’s a strain of thought that Trump and Musk relish this moment. They’ve been shutting parts of the government down anyway, and without available funds they could continue the job. It could even lead to permanent cuts; there’s a provision for layoffs if the shutdown lasts longer than 30 days. And the Office of Management and Budget, along with the Department of Government Efficiency, would get to control who stays and who goes. That’s what Gillibrand was shouting at the Senate lunch today, arguing that “this will not be a normal shutdown.”
Dayan makes two legal arguments in favor of a shutdown. Here’s the first:
DOGE and OMB are controlling who stays and who goes right now. Musk has reduced federal credit card limits to $1. He’s destroyed several agencies and canceled appropriated spending. There are lawsuits trying to stop all this, and passing a bill that gives the president flexibility to move around or cut spending harms those lawsuits. If Congress signed off on the kinds of things DOGE is doing, that offers a powerful legal talking point, as Norm Eisen says.
What Eisen argues in the linked video is that passing the CR will allow Trump to argue in Court that Congress endorsed their impoundment and recessions by not explicitly prohibiting them. That’s a stretch since Congress’s spending power is written into the Constitution and should not need to be reiterated in a spending resolution. It also doesn’t touch on the other half of the issue, which is the attack on federal workers and the merit-based civil service. At best, Eisen’s argument pushes back on Schumer’s idea that “a shutdown could further stall federal court cases.”
Dayen’s second legal argument isn’t complicated: “The ostrich approach from Democratic politicians has led to an inexorable fight in the courts that sooner or later will prompt Trump to ignore them; in many cases, he has already.” In other words, he’s arguing that a strategy premised on the Courts isn’t hopeless because the conservatives on the Supreme Court will rule against us, but because Trump will simply ignore any adverse ruling.
If that’s the case, then there really is no hope and I don’t know why yelling and screaming at Democrats is fair or productive.
There are a whole lot of people using reasoning akin to this. It breaks down under scrutiny and doesn’t accurately game things out because their considerations are too incomplete. It sounds good to say that people shouldn’t capitulate and have to take a stand. Dayan says “The way to change this dynamic is with an opposition party showing that there’s an actual debate going on, starting with an unwillingness to feed their own institution into a wood chipper.” And that appears to be exactly the reasoning used by Sen. Booker. I’m not saying they’re wrong, only that they don’t have a clearly better argument.
There needs to be a fight, but choosing where to plant the flag is a hard decision. On the government shutdown, the Democrats were damned if they did and damned if they didn’t. That doesn’t seem like the best place to make a stand. On the other hand, when it comes to the Republicans effort to pass their agenda through the budget reconciliation process, the dynamics will be reversed.
In that case, the Republicans will be damned if they succeed, because it will necessitate enormously unpopular cuts, including hundreds of billions of cuts to Medicaid that the people very clearly do not want. They’ll also be damned if they fail, because Trump’s entire legislative agenda is dependent on the success of the reconciliation process. If it collapses, his tax cuts expire and he doesn’t get his energy and immigration reforms. He’ll be forced to negotiate with the Democrats to get funding, or he’ll have to keep resorting to continuing resolutions that fund the government at Biden levels.
It’s true that they can monkey around with how that appropriated money is spent if there is no entity to stop them, but the Democrats can’t make the Republicans or the Supreme Court do anything, nor can they compel Trump to respect the Supreme Court. The best they can do is to make it as difficult and painful as possible for Trump to pass his agenda through reconciliation. And, they can have a good strategy for when these things are eventually argued at the Supreme Court, because despite being very conservative, the Court is still a potential ally when it comes to preserving Congress’s power and the merit-based civil service.
In the end, the reason I am unsure what the right answer is because I’m not a constitutional lawyer and I can’t figure out how these cases will land at the Supreme Court or just how passing or not passing the CR might impact the ultimate rulings.
The pro-shutdown argument really doesn’t address this adequately and, for me, depends on lot of emotional and magical thinking. People say they are sick of the Democrats acting as if they’re helpless. Well, they are not helpless, but they lack the power to stop Trump on their own. Trump can do his destruction just as well with a shutdown as without one, and perhaps better and with more thoroughness. Civil servants have a real chance to win their jobs back in the legal system, but not if their departments are furloughed and shuttered for so long that they’re compelled to find other work.
I get that the Senate Democrats signing off on the CR is in a sense as Dayan says, feeding “their own institution into a wood chipper” because it empowers “Donald Trump and his minions [to] just rip it up and decide unilaterally what they wanted to spend money on.” That’s why I haven’t come down against Dayan’s position. I think his argument is poorly argued, but I also think Schumer did a poor job of explaining his side.
What I will say is that I am not seething mad at Schumer over this because I don’t clearly see how he is wrong. The real fight against Trump was never going to be about extending Biden’s spending levels into the next fiscal year. In a way, that’s a win, only undermined by Trump’s refusal to spend the money as directed. The real fight, in Congress at least, is about the reconciliation process. The Dems can win that fight either way it goes down. They can either sink Trump’s whole legislative agenda and force him into real negotiations or the Republicans can vote in unanimous lockstep to commit electoral suicide.
And to parallel Dayan’s remark that the legal strategy is hopeless because Trump will ignore the Supreme Court, the same can be said of the political strategy because it assumes there will be free and fair midterm elections in 2026. Maybe that’s a flawed assumption. Maybe every avenue is cut off because no one has the power to prevent Trump from pulling a Putin and establishing a dictatorship.
In the end, the best bet is that the Supreme Court will try to stop that and that its authority will be respected. This is a fascist regime and nothing will get better until they are defeated. That might be at the ballot box or it might be by a popular uprising, but it was never going to hinge on a mere funding bill designed to avoid a government shutdown.
