The shutdown of the U.S. government after failure to pass a budget is exceptional by global standards. Other governments in mature constitutional democracies do not stop functioning, despite the difficulties in passing revenue bills. Yet shutdowns in America are increasing in occurrence, costliness and intensity. I argue that the Constitution is partly to blame, both because of what it creates and what it lacks. Drawing on a comparative perspective, I show how the constitutional emphasis on checks and balances contributes to the likelihood of shutdown, and how features that might forestall or resolve financial impasse are omitted.
After rejecting an easy story of parliamentary functionality compared with presidential deadlock, I provide three frames in which constitutions resolve financial impasse, across branches or legislative chambers. In the first, the constitution rules that a default budget must pass if a proposed budget has stalled. Analogous to proposals for an automatic continuing resolution in the United States, these provisions differ in terms of whether the previous year’s budget continues, or the proposed budget passes. In the second, the constitution outlines the procedure for a prorepresentative solution, in the form of an early election. In presenting a closer case study of the Australian version of this option, this Article shows its dependence upon voter repercussions and hence political compromise. In the third, constitutional silence relies on a political resolution only. As American experience has shown, however, compromise is more difficult in conditions of divided-party government, polarization, and an unequal party tolerance for shutdowns.
Unlike other instances of legislative impasse, checks-and-balances deadlock on budgets does not simply continue the status quo, but causes the active shuttering of government operations. These shutdowns harm vulnerable populations, government employees, fiscal stability, and the public trust of government more generally. The curious tolerance for shutdowns in the U.S. is not simply part of a libertarian strain within an American culture of negative constitutionalism. Rather, it may be attributed to distinctive – but curable – features of constitutional design.
This Article was part of the Boston University Law Review Symposium: America’s Political Dysfunction, Constitutional Connections, Causes, and Cures, November 15-16, 2013.
Comparative and Foreign Law
- Journal title
Boston University Law Review
- Date submitted
8 September 2022