Appropos of nothing
I know who's *losing* the shutdown: Congress
Dear Friends,
You know, I was going to write something about poker today. And that was going to be fun.
But alas, we need to keep talking about appropriations. Nineteen thoughts:
People keep asking me who’s “winning” the shutdown. I never really know how to answer that, because politics is a diverse set of actors with a diverse set of goals and both short and long time horizons. Trying to evaluate any of that often requires guessing at the priorities and cost/benefit of individual actors and parties and citizens and the nation; or weighing things like the relative value of getting a policy vs. getting a winning campaign issue, for each of those groups. That is very hard, and it’s all too easy to substitute your own political goals as a proxy. But here are some things I see:
On legislative policy: the Democrats are still highly unlikely to get significant formal restrictions on executive spending encroachment, but seem reasonably likely to eventually get their health care demands mostly met, though almost certainly not until they agree to unconditionally reopen the government in exchange for a good-faith wink-and-nod on the ACA. That has always been, by far, the most likely outcome here, and I don’t see any change.
This is a good example of how hard it is to evaluate this stuff. Getting a health policy that helps people is certainly a win for those people! And I suspect they might trade a fair amount of future political cost from the shutdown for it. But should the Democratic party make that trade? How big is the trade, anyway—did the Democrats just take their best issue off the table for 2026? How much would it have helped? And would the health care deal have come together even if there wasn’t a shutdown? There are just a ton of imponderables here. In the end, it’s a lot of guesswork.
On short-term partisan politics: the Democrats have strongly exceeded my expectations on how the shutdown itself is being evaluated by public opinion. Some combination of partisan opinion lock-in, better-than-expected Dem messaging, and worse-than-expected Trump and GOP strategy has let the Democrats score at least a draw here. Whatever that means for long-term politics, it seems to me that it has, at a minimum, bolstered the Dem solidarity in Congress and allowed them to maintain their position without any visible crumbling. That may not ultimately win policy concessions or put them in a significantly better position over the next six months of governance politics, but it certainly is a prerequisite for it. That’s worth something.
On long-term partisan politics: I don’t have any sense of the electoral effects of all this, and I’m skeptical of anyone who claims they do. The best bet is always that this sort of shutdown has a pretty minor marginal effect on voter behavior 13 months down the road, but again this is really hard to evaluate because we don’t really have any great way to measure things like “how did the shutdown affect the decisions of potential primary challengers to enter races and/or adjust their platforms” or “how much did the Dem shutdown solidarity carry over to the electoral side in 2026” or “did the shutdown embolden Trump to do something really stupid that hurt the GOP brand” (more on the last one below.)
On internal party politics: This feels like a modest solidarity win for the Democrats right now. Schumer has probably shown enough fight to put down any real open rebellion from his left wing over the next year, though it may not be enough to save his job next Congress. The elite and activist Democrats seem energized by getting health care—by far their best issue—closer to the top of the agenda for a while. But this is all TBD, because at some point the deals have to be cut, and there could be some fallout there. But if your top priority for the shutdown was to unify the Dems, I have to think that expectations have been strongly exceeded. Mine certainly have been.
On executive policy: I figured Trump would play fast and loose with the shutdown, but even conditional on that I’m surprised at just how far he and OMB Director Vought have gone in trying to leverage the shutdown for ideological and executive power ends. Who knows where this is going electorally—as mentioned, this could easily blow up in Trump’s face if swing voters decide they’ve had enough wanna-be absolute monarch behavior—but if your goal for the shutdown was to rein-in executive encroachment on the spending authority, thus far it has completely backfired.
And that’s why I’m confident Congress is a big loser in the shutdown. The laundry list of legally-dubious things Trump and/or Vought are doing right now is pretty striking: accelerating RIFs in various federal agencies; using official communications of federal agencies for blatant partisan messaging about the shutdown; and targeting programmatic projects in blue states for impoundment or pseudo-impoundment of funds. If you were worried about executive encroachment on the spending power going into the shutdown, your hair should absolutely be on fire right now. I know mine is.
All that aside, the biggest deal here, by far, is paying the troops. I’m still not 100% sure where the actual money came from, but everything I do understand makes it look like an all-out assault on the most basic principles of Anglo-American legislative democracy: the legislature decides what to spend the money on, and the executive may not spend the money on other things. Trump did not invent executive encroachments on spending authority—I’ve been saying for years that Obama, Trump I, and Biden have all taken advantage of partisan solidarity to make outrageous executive spending moves—but Trump II is taking things to 11, and this week’s move really goes to 13.
What exactly happened? A quick review of how a shutdown works. No money can leave Treasury without an appropriation. Under federal law and modern interpretations, most employees must therefore be furloughed, but some employees (including all uniformed servicemembers) are exempted and therefore continue to work, albeit without being paid (they are eventually guaranteed the money). This is a major pain point politically, but especially on the military side—I, for one, certainly don’t like the idea of uniformed enlistees with kids and families missing paychecks—and the first missed military paycheck would have been October 15. Congress could rectify this by (1) striking a full deal to end the shutdown; or (2) striking a deal to pass the Defense appropriations bill, ending the shutdown at DoD; or (3) passing special legislation appropriating money specifically for the Military Personnel (MILPERS) accounts in the Defense bill, so the paychecks could go out. None of this happened.
Instead, the administration initially announced it had found a way to transfer some existing multi-year money from Research, Development, Testing, and Evaluation (RDTE) appropriations over to the MILPERS accounts. When I went looking for that authority—transfer authority between appropriations must be in law—I couldn’t find it. Turns out, nobody could. Best I can tell, Trump simply directed DoD to use the RDTE money to pay the troops. Essentially inventing presidential transfer authority among all military accounts. Here’s a nice tweetstorm on the technical details.
This is very bad, and completely out of step with the most basic legislative-executive power dynamics that have been settled since the aftermath of the English Civil War. This isn’t a too-clever-by-half reading of statute, like the Biden student loans. This isn’t finding old transfer authorities that get unlocked during emergencies, like the border wall money. And this isn’t even a probably-bad-faith interpretation of law, like the Obama CFR funding in the ACA. This is straight-up the executive saying “I have the authority to pay the troops because I’m the Commander-in-Chief and I am going to pay the troops.”
Charles I, another Anglo-American executive who stole legislative power This makes impoundment look quaint. I have written previously about how Trump and, especially, Vought are proposing theories of executive spending that would essentially undo late 17th century English settlements between King and parliament, and upend the 1787 constitutional dynamic. But the ability to not spend money appropriated by law is nothing compared to the ability to ignore purpose restrictions on money. The most bedrock feature of appropriations—indeed, the reason the word appropriation exists—is because the English parliament won the ability to condition their grants of supply to the King on three things: duration, amount, and purpose. For the legislature to say “you can spend $8B for the next two years on weapons research” and for the executive to take that money and proudly spend it on soldiers instead is a pure attack on Congress, and consequently, on the rule of law. It reduces Congress to a single, negative power: the right to not appropriate any money. Anything they do grant the executive might end up being spent on anything. Welcome to England, circa 1615.
No one should be happy about this, least of all Republicans. There is literally no functional legal difference between this—moving money between accounts from different titles of the same appropriations bill without any transfer authority, just on presidential order alone—and taking money from ICE and just declaring it transferred to FEMA because there happens to be some natural disasters and Congress isn’t providing the funding.
And please don’t start telling me that military money is different because Article II makes the president commander in chief. Article I provides that Congress has the authority to raise an army and navy, and there has never been a distinction made between DoD money and other types of appropriations that gives the president wider latitude with it on a constitutional basis. In fact, the only constitutional distinction limits the ability of Congress to appropriate army money for more than two years at a time, in an effort to prevent the standing royal armies parliament feared in England. Even more to the point, Congress strongly conditions the Commander-in-Chief power all the time in appropriations bills. It’s how they ended the Vietnam War. And they literally did it last week on a bipartisan basis in the NDAA, which, among other things, blocks the president from using money to reduce the number of troops in South Korea.
Of course, paying the troops is really popular. I support it. And everyone sort of understands that it would be politically insane for the Democrats to sue the administration in an effort to block uniformed servicemembers from getting their checks. So this is all going to happen. And it highlights two important features of small-d democratic politics. First, there are no neutral referees who blow the whistle when someone violates the law or the constitution. This isn’t college football. Other actors in the system have to call them out, and those actors must weigh the political costs of trying to enforce the law. Consequently, achieving popular things via legally dubious procedural maneuvers can put your opponents in a bind.
Second, presidents routinely take advantage of this usurp power from Congress. And that’s because the president has strong incentives to enhance the institutional power of the presidency, and no collective action problem to deal with when doing so. What consequently happens a heck of a lot is that the president and Congress both want something to happen, but the president makes sure that the manner in which it happens serves the ends of presidential power. Paying the troops is a nice example: if Trump came out and said “Congress should pass a bill to pay the troops” I’m pretty sure it happens. By law. As it should. The Democrats weren’t going to block that. But doing it how it was done serves the interests of presidential power (and, conveniently, denies the Democrats any credit for paying the troops).
As it relates to the shutdown, paying the troops undoes a major pressure point politically. And so the bizarre meta-dynamic of the shutdown that I outlined previously—where we have an appropriations crisis masquerading as a policy dispute over health care and a pretty pedestrian and solvable heath-care dispute masquerading as a shutdown-worthy fight—becomes even more cemented in place: the stakes of the appropriations crisis are escalating, but the manner in which they are escalating is serving as a release-valve that allows the low-stakes policy shutdown to continue! And short of Trump truly stepping on some power grab kill-switch—I’m not even sure what that would be at this point—the resolution of the shutdown is highly unlikely to result in any formal restraint on executive spending power.
I continue to be surprised by how little Trump is involved in the shutdown politics. Forget some national televised address from the Oval Office, he barely seems to consider solving it a top-tier issue. He doesn’t appear to be involved in any negotiations, and he seems perfectly content to publicly put his attention on other domestic and foreign policy issues. To some degree, this has to be partially the cause of the general lack of attention that the shutdown is drawing among the public. It’s not garner newspaper headlines. It’s being overshadowed by ICE raids in Chicago and peace deals in Israel. In some ways, the “attentional” strategy of the Democrats worked, but in the exact opposite way I expected: everyone who is talking about the shutdown is talking about health care. But not that many people are talking about the shutdown. I genuinely thought the shutdown would be bigger news, and health care would get lost in the fog.
I will say the shutdown feels somewhat less low-key in DC than it did two weeks ago. Part of this is that the stakes still seem pretty low at the policy level—I think everyone expects the obvious deal (reopen unconditionally and then have a good-faith ACA subsidy deal of some sort pushed through but little or no movement on the Trump power plays) to eventually happen—but a political equilibrium has set in where neither side feels uncomfortable politically with the shutdown status quo. There’s more and more worried chatter that this might actually blow through not only the No Kings protest scheduled this weekend, but also the November 1 ACA premium-mailers, the 35-day record for shutdown length, or even the November 21 CR date in the live House bill that the Senate keeps voting on.
Lots of things on the ground could change that, like a huge sick-out from air traffic controllers or another civilian fed missed paycheck. Or one of two specific Democratic Senators could decide to throw in the towel. Or a million other things that might move public opinion or get the deal cut. Many people keep telling me the Dems might just aggressively give up after the premium-increase notifications hit in November, voting to reopen the government, but trying to make the GOP own the subsidy increases. Possible! And I do think the cynical logic of the health care issue was always best served by getting an issue rather than a policy fix. But I still don’t really see it. Mark me down for thinking the deal is still going to be cut.
One thing that has definitely changed this week is the procedural strategy being taken by the Senate GOP. Prior to this week, they were still allowing Schumer to make motions to proceed to the Democratic alternative CR, which allowed the Dems to get cloture votes on their plan. That all came to a halt this week, as Thune took the procedural path I expected and foreclosed the votes on the Democratic alternative. I’m still surprised it took this long. What they are doing now makes it much more clear who is refusing to open the government. At least in the Senate; Trump is still very much muddying the waters about who is trying to leverage the shutdown. In addition, Thune has started bringing up the Defense Appropriations bill as a stand-alone, just to put more screws to the Dems. Look for other innovations of that nature on the Senate floor next week.
This is only for procedural nerds, but at a nuts and bolts level Thune is leaving in place a motion to proceed so that no competing motion to proceed can dislodge it. He’s immediately filing cloture, which sets up cloture votes two days later, plus gives him the subsequent option for a reconsideration vote on the failed cloture motion at the time of his choosing. That amounts to a vote per day on the House CR if you rinse and repeat. And, of course, the same technique could be used on the Defense bill to double the number of total votes.
Someone asked me where I thought all this executive spending power-grab stuff ends, and I think the answer is probably at the Supreme Court. There might be a bridge too far that Trump could take where the court would be ready to stand up for an Article I Major Questions line of reasoning, but I know that will be true the next time there’s a Democrat in the White House. I very much enjoyed this Ross Douthat interview with Justice Barrett, and she was guarded but still surprisingly honest about how the judges are human and the degree to which cases might turn on substantive political beliefs. So I highly doubt the current court would allow President Newsome to just use ICE money to spend more at FEMA. That’s not great substantively if you are a partisan Dem, but it is a backstop on the complete demolition of the separation of powers, and would (hopefully) set up some precedents that the court would be less shy about applying to future conservative administrations.
On the biggest-picture meta question of what is going on in American politics, I have generally been inclined to view the Trump era as something more like a new (and worse) constitutional order than a major backsliding into a competitive authoritarian system. Think Jackson or FDR rather than Orban or Erdogan. So I finally got around to reading the newish Levitsky and Way article making the case for Trump II as the backslide to competitive authoritarianism, and the subsequent Kortukov and Waller response, and I recommend both articles. In my view, the latter two have the better of the argument, but that also confirms my priors. So decide for yourself.
Cheers,
Matt
btw how well do you think that article in American Affairs has aged? I read it and was encouraged but noticed they wrote it back in June.
Thank you for curating those articles, and for presenting such a closely-argued and cogent analysis. I am reading the articles from 18 and 19 now.