Another government shutdown — thinking about the unthinkable

Mitch McConnell’s first act as “Senate Majority Leader Elect” was to take a government shutdown off the table. There won’t be one, McConnell insisted.

His position is understandable. Though not the disaster some proclaim it (Republicans prospered in the next big election), the partial shutdown was a set back for the GOP. Polling shows that it hurt the Party’s standing. Meanwhile, it failed to halt the implementation of Obamacare.

Should we infer from the 2013 experience that another partial shutdown would play out roughly the same way for Republicans? Yes and no.

Yes, we should be mindful that, thanks in part to the mainstream media and in part to force of habit, voters tend to blame Republicans for government shutdowns. But no, we shouldn’t assume that this dynamic automatically would operate now.

There are important features that would distinguish a partial government shutdown over the immigration executive order from the partial shutdown over Obamacare.

First, President Obama was more popular then than he is now. Voters are more inclined to blame Obama today. They likely would blame Republicans for a shutdown too, but this time the blame would, I believe, be shared more evenly, quite apart from the additional considerations discussed below.

Second, the main argument against the Republicans in 2013 doesn’t apply today. A year ago, Democrats could say, correctly, that the shutdown was over a dispute that Congress had already resolved — should Obamacare, legislation passed by Congress, go into effect.

This time around, the dispute is over Obama’s decision to implement a policy that Congress has refused to enact. Democrats do not hold the high ground they claimed in 2013.

Third, with Republicans in control of both chambers of Congress, the GOP may be able to tailor the partial shutdown in ways that will help it in the court of public opinion.

Specifically, Republicans could pass a bill that funds the entire government except for the Department of Homeland Security. Funding of that agency would be contingent on Obama backing down from the amnesty that DHS will otherwise implement.

Would Obama veto a bill that funds the entire government except for DHS? If he did, it’s very likely that he would be blamed for the ensuing partial shutdown except perhaps as it pertained to services provided by DHS.

Would Obama, therefore, sign the funding legislation? Only, I suspect, if he believed he could work around the non-funding of DHS.

Obama probably believes that he can. Most likely, he would respond to the non-funding by using fees, or some other source of revenue, to implement his amnesty. In addition, he would keep DHS’s security function operating on an emergency basis. But he would shut down other DHS functions, including some selected to inconvenience the public so as to inflict a political price on Republicans.

In this scenario, the shutdown is so “partial” as to have only minor political impact. But in this scenario, amnesty is implemented. Perhaps Obama’s legal position becomes more tenuous, as he appropriates funds to implement amnesty that Congress has not appropriated. But Congress’ legal challenge is problematic because of “standing” and “political question” concerns.

The alternatives to this approach are (1) a 2013-style shutdown or (2) inaction, essentially, in the face of amnesty.

For me, inaction is unacceptable. I assume that’s also the case for a large number of GOP Senators and Representatives.

A 2013-style shutdown apparently is unacceptable to the congressional leadership. As argued above, there are at least two reasons why a replay of 2013 might work out differently this time. But I well understand the reluctance to put this to a test.

In any event, the compromise between hardliners and cautious congressional leaders is to fund everything except DHS, and accept the extremely partial shutdown that this approach would probably trigger.