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Jack Balkin: jackbalkin at yahoo.com Bruce Ackerman bruce.ackerman at yale.edu Ian Ayres ian.ayres at yale.edu Corey Brettschneider corey_brettschneider at brown.edu Mary Dudziak mary.l.dudziak at emory.edu Joey Fishkin joey.fishkin at gmail.com Heather Gerken heather.gerken at yale.edu Abbe Gluck abbe.gluck at yale.edu Mark Graber mgraber at law.umaryland.edu Stephen Griffin sgriffin at tulane.edu Jonathan Hafetz jonathan.hafetz at shu.edu Jeremy Kessler jkessler at law.columbia.edu Andrew Koppelman akoppelman at law.northwestern.edu Marty Lederman msl46 at law.georgetown.edu Sanford Levinson slevinson at law.utexas.edu David Luban david.luban at gmail.com Gerard Magliocca gmaglioc at iupui.edu Jason Mazzone mazzonej at illinois.edu Linda McClain lmcclain at bu.edu John Mikhail mikhail at law.georgetown.edu Frank Pasquale pasquale.frank at gmail.com Nate Persily npersily at gmail.com Michael Stokes Paulsen michaelstokespaulsen at gmail.com Deborah Pearlstein dpearlst at yu.edu Rick Pildes rick.pildes at nyu.edu David Pozen dpozen at law.columbia.edu Richard Primus raprimus at umich.edu K. Sabeel Rahmansabeel.rahman at brooklaw.edu Alice Ristroph alice.ristroph at shu.edu Neil Siegel siegel at law.duke.edu David Super david.super at law.georgetown.edu Brian Tamanaha btamanaha at wulaw.wustl.edu Nelson Tebbe nelson.tebbe at brooklaw.edu Mark Tushnet mtushnet at law.harvard.edu Adam Winkler winkler at ucla.edu Compendium of posts on Hobby Lobby and related cases The Anti-Torture Memos: Balkinization Posts on Torture, Interrogation, Detention, War Powers, and OLC The Anti-Torture Memos (arranged by topic) Recent Posts The Aw-Shucks-No-Sweat-Just-Hangin’-Around Appropriations Bill of 2022
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Monday, February 07, 2022
The Aw-Shucks-No-Sweat-Just-Hangin’-Around Appropriations Bill of 2022
David Super
Some years ago,
Members of Congress sought to outdo one another in the application of adjectives
to supplemental appropriations bills. If
we say a
bill is a “dire emergency supplemental appropriation”, the reasoning must have
gone, maybe nobody will look too closely at all the rather mundane activities
it is funding. The feeling about
appropriations this year could hardly be more different. The beginning of the fiscal year arrived on
October 1 without enactment of a single one of the twelve regular
appropriations bills that, between them, fund the federal government. Since then, Congress has enacted a series of
stopgap continuing resolutions to keep the government going, and it likely will
enact another this week or early next to avert a partial government shutdown on
February 18. The reason for the
absence of appropriations bills is not sloth or a failure to appreciate the
importance of letting federal agencies their budgets so they can plan and go
through contracting procedures. Instead,
the absence of appropriations bills is a forceful application of the principle
that “nothing is agreed until everything is agreed.” The two parties likely would have little
trouble reaching common ground on several of the individual bills, but in order
to do so they would have to reach agreement on the top-line dollar figure to be
made available for each of the twelve appropriations bills. That would allow each of the twelve
appropriations committees to know how much money they could distribute and
negotiate funding levels for particular programs. But the parties are in sharp disagreement about
what those top-line figures should be. President Biden’s
budget proposal and the House’s appropriations bills
make large investments in social and environmental programs in large part to
offset the damage those programs suffered
from a decade of sequestration and tight appropriations caps. Senate Republicans, however, insist on parity
between domestic and defense spending, meaning that if domestic programs get
large increases, so does the Pentagon.
The prior decade of austerity affected the Defense Department much less
seriously than it did domestic programs, in part for technical reasons and in
part because the Pentagon proved adept at smuggling funding for its regular
operations into “emergency” supplemental appropriations for the wars in Afghanistan
and Iraq. Democrats
therefore face an unappealing choice: force-feed the Pentagon far more money than
it needs or can efficiently use, or have Republicans block any regular
appropriations bills for the current fiscal year. This would result in a year-long “continuing
resolution” freezing all programs at the levels Congress negotiated last year
with former President Trump. Congress could
add extra funding to address “anomalies” in a few programs, but Republicans
presumably would demand Defense anomalies comparable to the domestic ones. It also would all but guarantee a year-long
continuing resolution next year, as well.
By all indications,
the congressional Democratic leadership is trying to reach agreement with
Republicans that would allow full appropriations bills to move forward. This means, at a minimum, defense spending at
the levels contained in the bipartisan Defense Authorization Act, whose
excesses have faced withering criticism from both left
and right. The process of reaching
agreement to write full appropriations bills has been further complicated by
the large number of substantive policy issues governed by appropriations
riders. A year-long continuing
resolution traditionally continues all prior riders. Democrats desire
to eliminate some of last year’s riders while adding or strengthening
others. At this point, however, unless
they can work out a swap with Republicans, appropriations bills are likely to
leave the rider-verse largely undisturbed.
Would Eliminating the Legislative Filibuster Help? Because opposition
to the filibuster so dominates progressive discourse on federal policy these
days, it may be useful to work out how all of this would go were there no legislative
filibuster. Superficially, this
laborious process is necessary only because Democrats require sixty votes to
pass appropriations bills through the Senate.
Yet in a world
without the filibuster, the starting point would be much, much worse: President Trump and the Republican Congress
likely would have zeroed out many important social programs in the
appropriations bills written during 2017 and 2018; they were unable to do so only
because Democratic senators could filibuster any extreme appropriations bills. Other programs’ funding would have been
slashed much more deeply than the Republicans were able to do. (Those insisting that Democrats might as well
eliminate the legislative filibuster because Republicans are certain to do so next
time they can should explain why Senator McConnell did not drop the legislative
filibuster in 2017-18 when it severely hampered this and many other pieces of
the Republican legislative agenda.) Gutting or ending
these programs would have done considerable damage over the past four years and
would have left a much bigger funding hole needing to be filled now. In addition, where Republicans had dissolved
programs, it would require still more money and time to recreate them. For example, if a community health center had
been closed three years ago, it would take considerable time to find and rent
space, hire managers and health care professionals, obtain provider agreements
with Medicare, Medicaid, and other insurers, publicize the center’s renewed
existence, and so forth. Where states
were unwilling to help, federal staff likely would be sufficient to organize
only a handful of new health centers per year.
And even if the
current Congress was willing to invest in building back those programs, the job
likely would not be complete before the next Congress – likely with a
Republican majority – took office and stopped the rebuilding process in its
tracks. Human services programs, along
with the people they serve and those that staff them, are delicate and
vulnerable: easy to harm and slow to
heal. They cannot do well in an
environment of wild policy swings, which is what the filibuster’s end would
entail. Moreover, even if Senate
rules allowed Democrats to legislate with a simple majority, that majority
often will not be available. Obviously
they would be unable to pass legislation that divides their ideologically
diverse caucus, as seen in the setbacks the Build Back Better human services
and environmental bill has suffered. In
addition, their majority depends on the good health of fifty-one people, some
of whom are quite old. When New Mexico
Senator Lujan – who is not old at all – suffered a stroke
in late January, Democrats lost their Senate majority until his projected
return in mid-March. Build Back Better,
contested appropriations votes, and contested confirmations (is there any other
kind these days?) are therefore on hold for more than a month. (When Senator Manchin talks about preserving
the civility of the Senate, part of what he means is the tradition of “pairing”: senators agreeing to withhold their votes to
balance those of ailing members of the other party. That would be quite useful just now.) With Democrats controlling the House and the
White House, Senator McConnell is not expected to attempt any “jail-break”
maneuvers with his temporary majority; were a Republican president in office,
considerable mischief would be possible.
With
appropriations as elsewhere, eliminating the filibuster is the political equivalent
of krokodil: a cheap, quick high followed by a staggering
amount of long-term damage and pain. The
Democrats’ current bind results from losing too many elections and from failing
to develop effective messaging about the need for human services funding that
would deter Republican attacks. No quick
fix is available. @DavidASuper1
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Books by Balkinization Bloggers Jack M. Balkin, Memory and Authority: The Uses of History in Constitutional Interpretation (Yale University Press, 2024) Mark A. Graber, Punish Treason, Reward Loyalty: The Forgotten Goals of Constitutional Reform after the Civil War (University of Kansas Press, 2023) Jack M. Balkin, What Roe v. Wade Should Have Said: The Nation's Top Legal Experts Rewrite America's Most Controversial Decision - Revised Edition (NYU Press, 2023) Andrew Koppelman, Burning Down the House: How Libertarian Philosophy Was Corrupted by Delusion and Greed (St. Martin’s Press, 2022) Gerard N. Magliocca, Washington's Heir: The Life of Justice Bushrod Washington (Oxford University Press, 2022) Joseph Fishkin and William E. Forbath, The Anti-Oligarchy Constitution: Reconstructing the Economic Foundations of American Democracy (Harvard University Press, 2022) Mark Tushnet and Bojan Bugaric, Power to the People: Constitutionalism in the Age of Populism (Oxford University Press 2021). Mark Philip Bradley and Mary L. Dudziak, eds., Making the Forever War: Marilyn B. Young on the Culture and Politics of American Militarism Culture and Politics in the Cold War and Beyond (University of Massachusetts Press, 2021). Jack M. Balkin, What Obergefell v. Hodges Should Have Said: The Nation's Top Legal Experts Rewrite America's Same-Sex Marriage Decision (Yale University Press, 2020) Frank Pasquale, New Laws of Robotics: Defending Human Expertise in the Age of AI (Belknap Press, 2020) Jack M. Balkin, The Cycles of Constitutional Time (Oxford University Press, 2020) Mark Tushnet, Taking Back the Constitution: Activist Judges and the Next Age of American Law (Yale University Press 2020). Andrew Koppelman, Gay Rights vs. Religious Liberty?: The Unnecessary Conflict (Oxford University Press, 2020) Ezekiel J Emanuel and Abbe R. Gluck, The Trillion Dollar Revolution: How the Affordable Care Act Transformed Politics, Law, and Health Care in America (PublicAffairs, 2020) Linda C. McClain, Who's the Bigot?: Learning from Conflicts over Marriage and Civil Rights Law (Oxford University Press, 2020) Sanford Levinson and Jack M. Balkin, Democracy and Dysfunction (University of Chicago Press, 2019) Sanford Levinson, Written in Stone: Public Monuments in Changing Societies (Duke University Press 2018) Mark A. Graber, Sanford Levinson, and Mark Tushnet, eds., Constitutional Democracy in Crisis? (Oxford University Press 2018) Gerard Magliocca, The Heart of the Constitution: How the Bill of Rights became the Bill of Rights (Oxford University Press, 2018) Cynthia Levinson and Sanford Levinson, Fault Lines in the Constitution: The Framers, Their Fights, and the Flaws that Affect Us Today (Peachtree Publishers, 2017) Brian Z. Tamanaha, A Realistic Theory of Law (Cambridge University Press 2017) Sanford Levinson, Nullification and Secession in Modern Constitutional Thought (University Press of Kansas 2016) Sanford Levinson, An Argument Open to All: Reading The Federalist in the 21st Century (Yale University Press 2015) Stephen M. Griffin, Broken Trust: Dysfunctional Government and Constitutional Reform (University Press of Kansas, 2015) Frank Pasquale, The Black Box Society: The Secret Algorithms That Control Money and Information (Harvard University Press, 2015) Bruce Ackerman, We the People, Volume 3: The Civil Rights Revolution (Harvard University Press, 2014) Balkinization Symposium on We the People, Volume 3: The Civil Rights Revolution Joseph Fishkin, Bottlenecks: A New Theory of Equal Opportunity (Oxford University Press, 2014) Mark A. Graber, A New Introduction to American Constitutionalism (Oxford University Press, 2013) John Mikhail, Elements of Moral Cognition: Rawls' Linguistic Analogy and the Cognitive Science of Moral and Legal Judgment (Cambridge University Press, 2013) Gerard N. Magliocca, American Founding Son: John Bingham and the Invention of the Fourteenth Amendment (New York University Press, 2013) Stephen M. Griffin, Long Wars and the Constitution (Harvard University Press, 2013) Andrew Koppelman, The Tough Luck Constitution and the Assault on Health Care Reform (Oxford University Press, 2013) James E. Fleming and Linda C. McClain, Ordered Liberty: Rights, Responsibilities, and Virtues (Harvard University Press, 2013) Balkinization Symposium on Ordered Liberty: Rights, Responsibilities, and Virtues Andrew Koppelman, Defending American Religious Neutrality (Harvard University Press, 2013) Brian Z. Tamanaha, Failing Law Schools (University of Chicago Press, 2012) Sanford Levinson, Framed: America's 51 Constitutions and the Crisis of Governance (Oxford University Press, 2012) Linda C. McClain and Joanna L. Grossman, Gender Equality: Dimensions of Women's Equal Citizenship (Cambridge University Press, 2012) Mary Dudziak, War Time: An Idea, Its History, Its Consequences (Oxford University Press, 2012) Jack M. Balkin, Living Originalism (Harvard University Press, 2011) Jason Mazzone, Copyfraud and Other Abuses of Intellectual Property Law (Stanford University Press, 2011) Richard W. Garnett and Andrew Koppelman, First Amendment Stories, (Foundation Press 2011) Jack M. Balkin, Constitutional Redemption: Political Faith in an Unjust World (Harvard University Press, 2011) Gerard Magliocca, The Tragedy of William Jennings Bryan: Constitutional Law and the Politics of Backlash (Yale University Press, 2011) Bernard Harcourt, The Illusion of Free Markets: Punishment and the Myth of Natural Order (Harvard University Press, 2010) Bruce Ackerman, The Decline and Fall of the American Republic (Harvard University Press, 2010) Balkinization Symposium on The Decline and Fall of the American Republic Ian Ayres. Carrots and Sticks: Unlock the Power of Incentives to Get Things Done (Bantam Books, 2010) Mark Tushnet, Why the Constitution Matters (Yale University Press 2010) Ian Ayres and Barry Nalebuff: Lifecycle Investing: A New, Safe, and Audacious Way to Improve the Performance of Your Retirement Portfolio (Basic Books, 2010) Jack M. Balkin, The Laws of Change: I Ching and the Philosophy of Life (2d Edition, Sybil Creek Press 2009) Brian Z. Tamanaha, Beyond the Formalist-Realist Divide: The Role of Politics in Judging (Princeton University Press 2009) Andrew Koppelman and Tobias Barrington Wolff, A Right to Discriminate?: How the Case of Boy Scouts of America v. James Dale Warped the Law of Free Association (Yale University Press 2009) Jack M. Balkin and Reva B. Siegel, The Constitution in 2020 (Oxford University Press 2009) Heather K. Gerken, The Democracy Index: Why Our Election System Is Failing and How to Fix It (Princeton University Press 2009) Mary Dudziak, Exporting American Dreams: Thurgood Marshall's African Journey (Oxford University Press 2008) David Luban, Legal Ethics and Human Dignity (Cambridge Univ. Press 2007) Ian Ayres, Super Crunchers: Why Thinking-By-Numbers is the New Way to be Smart (Bantam 2007) Jack M. Balkin, James Grimmelmann, Eddan Katz, Nimrod Kozlovski, Shlomit Wagman and Tal Zarsky, eds., Cybercrime: Digital Cops in a Networked Environment (N.Y.U. Press 2007) Jack M. Balkin and Beth Simone Noveck, The State of Play: Law, Games, and Virtual Worlds (N.Y.U. Press 2006) Andrew Koppelman, Same Sex, Different States: When Same-Sex Marriages Cross State Lines (Yale University Press 2006) Brian Tamanaha, Law as a Means to an End (Cambridge University Press 2006) Sanford Levinson, Our Undemocratic Constitution (Oxford University Press 2006) Mark Graber, Dred Scott and the Problem of Constitutional Evil (Cambridge University Press 2006) Jack M. Balkin, ed., What Roe v. Wade Should Have Said (N.Y.U. Press 2005) Sanford Levinson, ed., Torture: A Collection (Oxford University Press 2004) Balkin.com homepage Bibliography Conlaw.net Cultural Software Writings Opeds The Information Society Project BrownvBoard.com Useful Links Syllabi and Exams |