The Legality of Government by Extortion: “As We Say, Or We Shut It Down”

Updated:

Here they go again. Congressional Republicans are demanding that it’s their way or no way.  They have once again shut down the government.  Because Democrats refused to kill funding for some or all of the Affordable Care Act—Obamacare—before it became effective, the Republicans shut down the government this week, on October 1, 2013.  And they will be back at it again for the October 17 deadline when the government needs to raise the debt limit so that the USA can pay its bills.  If Democrats refuse to repeal Obamacare, the Members of the GOP-controlled House of Representatives claim that they will refuse to raise the debt ceiling, which, in turn, will cause the government to default on its bills—and crash the American, if not the world, economy.

In short, we are back to GOP governing by extortion, meaning that the Republicans are seeking to force their way by taking the economic health of the nation hostage if they are not able to prevail.  This is not persuasion; rather, it’s intimidation.  There is no deliberation, only compulsion. This is not the democratic way, but the demagogue’s.

There is surprisingly little legal commentary on this repulsive modern GOP tactic, not to mention its broader legal implications.  Can it be constitutional?  Where in the Constitution does it say that one branch of the government can refuse to carryout its governing responsibilities if one of the other branches does not agree with it? Is this a proper procedure?  If not, why doesn’t someone take legal action against these clowns and force them to behave?

While I claim no particular expertise in this area, the answers appear as conspicuous as these issues are unpleasant.  The Republicans’ strategy for imposing their Party’s minority will on the majority by refusing to fund a law, or to keep the entire government functioning is (1) patently unconstitutional and unconscionable; (2) in violation of the Congressional Oath of Office; (3) unethical and unseemly; and yet, (4) there is no legal action that anyone in the other branches can pursue to end this shameful conduct. Fortunately, though, there is another type of remedy available to deal with this aberrant political behavior, as I will explain.

First: Government Shutdowns Are Unconstitutional and Unconscionable

The U.S. Government is designed to never sleep, never take holidays, never close its operations, and when it is operating normally, it functions 24/7 around the world.  Our Constitution calls for an ongoing and perpetual government unless modified under the amendment process set forth in Article V of the Constitution or by revolution.  Refusal to fund the government, which under law shuts it down, because a small recalcitrant group of Republican Party office holders are unwilling to fulfill their basic responsibilities for maintaining a functioning government, is a form of unconstitutional insurrection.

Congressional Republicans are rejecting grade-school-level American civics. Our democracy is premised on the assumption that the will of the majority prevails, and the majority rules. We function through a government that provides total freedom for the minority to be heard, to dissent and to disagree, and to try to influence the collective thinking of the nation to make their minority view into a majority view.  But elections have consequences.  Not only do elections put the winners in office, but those officeholders can each vote his or her will to reflect the views of the majority that sent them to Washington.  The processes and procedures of government were never intended to serve as tools to block the will of the majority, and using them for that purpose is a clear abuse and misuse of power.

Writing in the Political Science Quarterly, in 2000, after the earlier GOP shutdowns in 1996 and when no shutdown was then looming, Columbia Law School professor Alfred Hill issued an informal opinion that only the briefest of shutdowns could be considered constitutional.  He noted that our Constitution creates a government of laws, which can only be suspended by the enactment of another law. Professor Hill reported that a law cannot be changed, nor made inoperative, by withholding an appropriation that is needed for it to operate, so refusing to fund a program, agency, or department is unconstitutional. What the Congress is doing when it refuses funds is also unconstitutional because it frustrates the president’s Article II, Section 3 responsibility to “take care that the Laws be faithfully executed.”

There has long been a legal doctrine that deems contracts or procedures to be unenforceable if they are unconscionable.  An unconscionable situation arises when one side takes unfair advantage over the other.  This is the case where there is a “gross overall one-sidedness” in the dealings of the parties.  As the U.S. Supreme Court has noted, “an unconscionable …[situation] is one which no man [or woman] in his senses, not under delusion, would make, on the one hand, and which no fair and honest man [or woman] would accept, on the other.”  A Republican threat to shut down the government, or destroy the American economy, creates an unconscionable situation. It is American policy to not negotiate with terrorists, for they seek an unconscionable bargain.  So too with Republicans who seek an unconscionable bargain.

The use of such political coercion—disrupting government operations for lack of funding or, in the case of the debt ceiling, to disrupt the world economy—is, at a minimum, a serious abuse of process and, at worst, blatantly illegal. By way of analogy, you cannot force another person to enter a contract by coercion or duress, so how can Republicans force the outcome of the legislative process by such tactics? Does not such action corrupt the legislative process? Does not the Constitution contemplate a deliberative process? If you answer any of these questions in the affirmative, it means that what the Republicans are doing is not only unconstitutional, and conspicuously unconscionable, but probably illegal as well. However their action is labeled or described, it is clearly unacceptable.

Senate Democratic Majority Leader Reid has refused to negotiate with the House Republicans while they are “holding a gun to his head.” President Obama has spoken of House Republicans demanding “ransom” to do their job.  Hyperbole aside, this is actually “extortion” that we are witnessing.  Black’s Law Dictionary notes the classic definition, for example: “Extortion is a crime when, by color of office, any person extorts that which is not due, or more than is due, or before the time when it is due.” (Emphasis added.)  And “to extort” is defined as follows: “To gain by wrongful methods;” and “To exact something wrongfully by threats or putting in fear.” If what the House Republicans are doing is not a form of extortion, they have sure fooled me.

Second: Government Shutdowns Violate the Congressional Oath of Office  

The Congressional oath of office, binding every Republican serving in Congress, is found in Article I, clause 3 of the Constitution, as well as in the rules of the House of Representatives: “I do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I’m about to enter.”

No person can work in or for our federal government—in either an elective or appointive position—without taking a formal oath of allegiance to honor and be bound by our Constitution. That oath is a solemn pledge.  Yet we are witnessing what one moderate Republican calls an “insurrection” by the House GOP extremists, and there is no insurrection clause in our Constitution, a matter that was resolved by the Civil War.

Oaths are more than mere agreements. Rather, they are a form of attestation that goes far beyond the simple acceptance of terms and conditions.  Oath-takers make a pledge of conscience to perform faithfully and truly.  An oath is a guarantee on stilts, a special commitment, to which the oath-taker ties his or her personal honor.  Countless Americans have fought and died to honor their oath to our Constitution. Yet Republicans are now shamelessly claiming that their ideological partisan politics trump their oath of office.

Conspiring with Republican colleagues to refuse to vote to fund the government, and forcing it to shut down all but essential services, is a breach of the oath, not to mention an obvious failure to support and defend the Constitution while faithfully discharging the duties of the office of a Member of Congress.

Third: Shutting Down Government Is Unethical and Unseemly

According to the first rule of the Official Code of Conduct of the House of Representatives, “A Member of the House shall behave at all times in a manner that shall reflect creditably on the House.”  Needless to say, this rule is something of a catchall, but if anything has been clear since the last time the Republicans shut down government 17 years ago, it is that shutting down government does not “reflect creditably on the House.”  Republicans seem determined to push Congressional approval ratings—now at the lowest ever at ten percent—to even lower historic lows. Obviously, this action does not exactly reflect creditably on the House.

As the GOP was threatening a shutdown on Monday, September 30, 2013, a Reuters poll showed that sixty percent of Americans wanted Congress not to shut down the government.  Reuters further reported that an earlier CBS/New York Times poll showed that eighty percent of Americans did not want the government to shut down.  Polls following the shutdown show that seventy-two percent of American people opposed the shutdown to defund Obamacare. Republicans members of the House have shamed themselves and the House of Representatives.

House Republicans have been relentless and stunningly dishonest in trying to deflect blame for the shutdown away from themselves, and onto either the Democratic Senate or President Obama.  Because the House of Representatives’ Official Code of Conduct has no provision for false statements—unless such statements result in a conviction for a felony with a two-year or greater prison sentence—there is no fear of institutional retribution for lying.  Yet there is a societal norm that demands the truth in general, particularly from our public officeholders.  House Republicans are also blatantly dissembling about their actions, which is unseemly.

Fourth: Unfortunately, There Is No Judicial Remedy

There is a reason that no one in the past has tried, nor will anyone in the future likely try, to get a federal court to compel Congress to do what it is supposed to do, and appropriate money in a timely fashion to keep the government operating, or raise the debt ceiling to a level where the USA can pay its bills in a timely fashion.  It is highly unlikely that the federal judiciary would ever take on such a lawsuit, seeing the issue as a political question beyond the courts’ purview:

Most federal judges, in general, and Republican federal judges in particular, embrace “the political question doctrine,” which finds its roots in Chief Justice John Marshall’s landmark ruling in Marbury v. Madison (1803).  Briefly stated, this doctrine holds that political issues that are within the purview and power of the other branches do not belong in the federal courts, which handle legal, not political issues.

The federal judiciary likes to stay out of the business of the other branches.  To resolve cases and controversies, federal courts want to be seen as above the political fray, where the logic of the law persuades the parties to comply with the courts’ holdings.  The political question doctrine is a murky area of law, however, because, at times, the federal judiciary has indeed tangled with “political questions” in cases like Baker v. Carr (1962), which addressed legislative reapportionment, and U.S. v. Nixon (1974), which examined a president’s power to deny the production of his privately-recorded conversation to a federal grand jury—to name only a few.

While Congress shares the lawmaking power with the President, Congress does have the final say on when and how much money it will appropriate.  For this reason, it is unlikely that any federal court will ever become involved in this political process, notwithstanding the fact that the federal judiciary is also at the mercy of Congress for most of its revenue (fees and fines stay within the cashbox of the federal judiciary, but they do not begin to cover its operating costs).

The Only True Remedy for Government Shutdowns

There is only one way to compel Congress to do what it is suppose to do, and to do it in a timely fashion to keep our government running: Voters. Public outrage over this unconstitutional, unconscionable, oath-violating, unethical, and unseemly Republican Party behavior will end it.  At some point, the low-information voters who support these radical GOP insurrectionists will realize they are also hurting themselves, not to mention others.  But I have studied these authoritarian followers, and they are very slow to learn their lessons.

Meanwhile, we must hope that more Americans take greater interest in electing responsible people to Congress, although I am not optimistic on that front.  Maybe President Obama will express greater and more sustained outrage about this Congressional irresponsibility, yet I’m not optimistic about this either, for it is not his style.  There is real encouragement, however, in the fact that the Beltway news media has made it very clear that if the GOP plays this game with the debt ceiling, they are messing with nuclear materials that could set off a chain reaction not only destroying the American economy, but the world economy as well. The only thing good about that prospect is that if it becomes a reality, it will destroy the Republican Party in the process, putting them out of business for decades to come.

  • truthisliberty

    Obama blaming people and calling it extortion is a farce. Obama’s healthcare initiative is all about extortion. Mandating people pay up so he can extract money by forcing them with fines is extortion. Obama is a wicked ruler who is defiant to God’s laws and changes laws as he sees fit. The truth will expose the impostor!

  • Several items surprised me by their absence. Under judicial involvement in politics, there was no mention of Bush v. Gore or Citizens United. Also, the gerrymandering of the House was ignored. The House of Representatives was intended to be the most responsive part of the government, but it is now involved in some sort of a contest with the Senate to see who can ignore the most people. The Senate has always been apportioned in a fundamentally unfair way, but now the House, which should have a modest Democratic majority based on the actual votes winds up with a 55% neo-GOP majority because computerized gerrymandering has effectively neutralized so many votes.

    Amusingly, it seems that the neo-GOP is determined to immolate their own party. I actually believe that President Obama is sincere about wanting to be able to negotiate. Freedom is about meaningful and unconstrained choice, and if the neo-GOP goes away, then we lose freedom. One choice is not an actual choice. Two political parties is the smallest situation with actual freedom…

    • Lane Lombardia

      The current dynamic is the direct result of changing the election process for the Senate.

      • Presumably you are referring to direct election of Senators, but I think that is an extremely weak argument. The representation of different constituencies is a good thing, but the States had already become a rather meaningless constituency.

        I do agree that the Senate needs radical reform, but I think the best dimension would have been explicitly wealth-based. I think the Senate should be apportioned based on taxes paid, which would create an interesting balancing dynamic. If a large company succeeded in manipulating the Senate to reduce their taxes, their own influence would decrease after the next election. In terms of increasing your political influence in the Senate, more taxes would be better.

  • Roger T. Yokubaitis

    I remember it quite well. John Dean could not be more incorrect. He assumes without demonstrating that the Republicans shut down the government. The Republicans did not shut down the government. In fact, the House sent a revenue bill to the Senate that carved out Obamacare from funding (because there was no agreement on funding it) and funded all the rest of the budget so there would be no government shutdown. The Democrats in the Senate and Obama refused to let the rest of the budget be funded as proposed by the House so there would be no government shutdown, announced that they would not let the rest of the budget be funded until all of Obamacare had been funded, and then shut down the government. It is patent that the Democrats shut down the government.in an attempt to force the House to fund Obamacare and they continue to do so today. How it can be argued that the Republicans shut down the government is completely beyond the actual historical facts.

    • Mark Johnson

      Dude, you’re a jerkoff. America reelected Obama on a platform of ACA and other liberal ideas, ACA became a law and the F*****G conservative Supreme Court upheld the passage of the law.
      The losers on the right are violating their constitutional duty by obstructing everything they can. They are a bunch of whiney pussies who are destroying this country.
      Do everyone a favor, take your Fox “News” revisionist history loving brain and GFYS

  • No, there is no judicial remedy to stop a government shutdown, but there IS one to prevent a federal government debt default. Lost in all the heated rhetoric about the shutdown is the fact that it is unconstitutional for the federal government to default on its debt obligations.

    The Supreme Court ruled in 1935 that Section 4 of the Fourteenth Amendment (“The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned”) applies not only to the debts incurred during the Civil War, but to ALL federal government debts authorized by Congress under Article I, Section 8 (“The Congress shall have the power . . . To borrow Money on the credit of the United States”).

    The court held that, under Section 4, Congress cannot fail to ensure that debts it agreed to on the credit of the United States are paid. What does this mean for the debt ceiling? That if Congress fails to raise it — causing the federal government to default — its failure to raise the debt ceiling would violate Section 4 of the Fourteenth Amendment, and is therefore illegal.

    Also illegal is the Tea Party-backed House Republicans hard-line — I dare say, fanatical — determination to gut “Obamacare” in spite of having lost at the ballot box in the 2012 election and at the Supreme Court last spring. It has to be called for what it is: blackmail and extortion.

    In an earlier era — World War II and the Cold War, for example — such tactics would have resulted in the “Teapublicans” arrest and prosecution for sedition under the Smith Act of 1940, for what they are doing is nothing less than a seditious — even treasonous — insurrection against the federal government by a group of extremists motivated, in part, by animus against the nation’s first black president.

    We can’t stop the Republicans from shutting down the government, but we CAN stop them from destroying the nation’s creditworthiness. It is time for House Speaker John Boehner to “read the riot act” on the debt ceiling to the Tea Party hard-liners in his caucus.

  • ValerieCurl

    I wish this post were on the front page of the Washington Post.

  • John Hash

    John Dean superbly articulates this Gordian knot!

  • Douglas Stephens

    You are so full of it, are your knees sore yet from being on them and worshipping obama? It is obama who has shut down the government. Why is it his way or now way? Why must everything go the unrighteousness democrats way? You are just another reason why our country is calling off the cliff……Douglas Stephens

    • bob diamond

      because doofus we are in the majority

  • Brian Barreira

    Many of these extortionists shutting down the federal government have law licenses. Is there any reason ethical complaints could not be filed against them with their state licensing board?

  • Robert LaRoss

    Thank you, Mr. Dean. Finally, at long last, someone is calling a spade a spade.

  • Really? No comments? Wow. Mr. Dean’s column is the most reasonable assessment of the shutdown that I have seen anywhere. I’ve said before that the acts of Republicans in Congress border on sedition and I’m glad to see I’m not the only one with that opinion. These guys came to Washington with the idea of being openly obstructionist and are being supported by Boehner’s lame brand of “leadership.” #Dump Boehner.

  • Korinne M Jackman

    Thank you for your insightful article. I think it a fair statement that few people believe the Congress is there to do the “people’s business,” and I find it offensive when I hear them admonishing each other for not as it is too much the pot calling the kettle black.

    As you stated, there are two ways in which we can change the government. First, under the provisions of Article V in which 2/3 of the states can apply for a constitutional convention (aside: currently there are 29 states with standing Con-Cons in place). The second is revolution.

    In your opinion, in what context would a revolution by the people be legal? Is there a Constitutional provision that would provide legal remedy of this sort?

    The 1st Amendment allows for a petitioning of the government for a redress of grievances. The 2nd Amendment provides for a well-regulated militia which the founding fathers found necessary to the security of a free State and holds that the citizens have a right to bear arms to keep the State free. The 10th Amendment preserves states rights, giving them sovereignty over themselves in the ability to nullify federal law. Putting all these together, it would appear the PEOPLE have a constitutional mandate to effect a revolution. However, as with Article V, the people must rely on those in office to facilitate that “revolution.”

    Short of that, what are the legal provisions for patriotic citizens to rise up and forcefully reclaim their government should their petitions for a redress of their grievances go unanswered? The 9th Amendment preserves our basic rights under the Constitution, EVEN IF THEY ARE NOT LISTED THERE…which basically translates that we have more rights than what they framers actually wrote. And it is a commonly held belief that the right to bear arms is specifically enumerated in the Bill of Rights so that the right of the people to rise up against a tyrannical government is not impeded.

    With all that said, as a noted legal scholar who has, himself, first hand experience with violating the Constitution of the United States, where are the legal provisions that allow for us to use any means necessary to reclaim our Republic and set about doing the people’s business? How can a patriot organize a revolution and not be tried for treason?

    This is our conundrum.

  • Where in the Demoiling is a straw man. crats are notion does it say that one branch of the government can refThis to carryout its governing responsibilities if one of the other branches does not agree with it If Democrats refuse to repeal Obamacare, the Members of the GOP-controlled House of Representatives claim that they will refuse to raise the debt ceiling, which, in turn, will cause the government to default on its bills

    Inaccurate. Democrats are not being asked to repeal Obamacare, the Republicans have asked for some changes. Watch the news for God’s sake. You don’t get to just make stuff up.

    Also, the debt ceiling is a straw man: incoming revenues more than cover the monthly interest on the debt.

    &

    Where in the Constitution does it say that one branch of the government can refuse to carryout its governing responsibilities if one of the other branches does not agree with it

    Read some American political history, this happens all the time.

    &

    Our democracy is premised on the assumption that the will of the majority prevails, and the majority rules.

    This is the biggest whopper in hear. Read your Madison, the majority specifically does Not rule.

    Grade=fail

  • Dominick

    Heroically argued. I’m with it, though I’m not so into the oath thing, given the way it was used in the 1950s. And I would go one farther than Mr. Dean in saying that the only remedy is the voter. Vote for who? The Democrats? Bill Maher on his last show gave a good rundown of the gratuitous, large-scale cuts to various programs that Obama is responsible for (by way of defending Obama from Republican and Tea Party attacks), the benefits of which will accrue mostly to the 1% notwithstanding Obama’s vaunted health care program. At any rate, this claim: “At some point, the low-information voters who support these radical GOP insurrectionists will realize they are also hurting themselves, not to mention others” is questionable at best. What we’re witnessing here is the rule of unreason, something beyond liberal political discourse, as Chris Hedges has recently described at Truthdig.com. Mere procedural democracy will not likely work any reversal of the apparent disease that has infected American political life, the most visible symptoms of which are on view in the Republican Party but are by no means restricted thereto. No, it will require a kind of political mobilization of thinking, decent people not seen in recent memory, except perhaps in the Occupy movement, but in any event outside the voting process.

  • JanS

    Well the branches UP UNTIL NOW may not like to get in each others business, but I don’t like this answer. Someone darn well better start liking it and enact laws where seditious and otherwise impaired behavior in branches of government can be dealt with. The American people don’t deserve to be ruled by threats and shutdowns. That’s not what we pay them to do. Waiting for rigged elections is NOT ENOUGH. Demand legislation to close these loopholes and STOP these shenanigans!

  • John Johnson

    I’m just saying who is the government to force healthcare when “we the people” should have 100% total control in the act of gaining health insurance. Seriously if I don’t want it you are going to fine me? OH YES THE DEMOCRATS are far from obstructing anything right? Well good for the republicans, I could give a shit what side is what as long I’m not the only one that feels my health is my own concern! As for shut down, already stated but these people were voted in, vote them out and all people do on here is complain anyway. What happened to people fighting for what they believe in? OH wait congress, the house, and senate had a great idea with law makers to twist and change meaningful freedom to every part of the constitution to fill those greedy, slimy, corrupt pockets. All this causes is problems between us civilians. The vicious cycle will always continue until some serious reforming is done from city officials to the white house and that’s up to you America not your leaders!. God bless the people and for you athiests yeah I said God bless and I don’t care for your opinion either it’s about time you and the satanists put up with our shit as much as we have had to deal with yours, is that not fair? too bad if our laws say we need to except you, then you’ll except us and like it! AMEN

  • Lane Lombardia

    This entire essay missed the key point that government either by democracy or democratic republic is extortion by the many upon the fewer. Whining ad nauseum because one particular faction of statists aren’t capitulating reveals the level of Stockholm syndrome. Indeed, what is needed is not merely a temporary “shutdown” which doesn’t actually shut down much (and supplies full back pay to all impacted parties at its resolution) but articles of dissolution. The essay reads like a poor cousin to the Federalist Papers, attempting to provide justification for grabbing ever more power. One of history’s great tragedies is that the antifederalists fell for it.