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


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.