NRO Dismisses "Hysterical" Fears About Shutdown And Potential Closure Of The Courts


National Review Online is calling fears about the effects of the government shutdown "hysterical," ignoring the uncertain future for both the Department of Justice and the federal court system if House Republicans refuse to fund federal obligations.

Right-wing media have repeatedly trivialized the impact of the shutdown since Congress failed to pass a resolution to continue government funding, referring to it as a mere "slimdown" and insisting that "no one is going to starve" even without essential government nutrition programs. NRO joined this chorus, calling the reaction to the shutdown "almost comical." From a September 30 column:

The hysterical fears about the effects of a government "shutdown" being voiced by many in Washington, such as Senator Tom Harkin (D., Iowa), who claims it is "as dangerous as the break-up of the Union before the Civil War," are almost comical.

The truth from the experience of prior shutdowns, applicable federal laws, Justice Department legal opinions, and Office of Management and Budget (OMB) directives, is that crucial government services and benefits would continue without interruption even if Congress fails to agree on a continuing resolution (CR) or President Obama vetoes it. That includes all services essential for national security and public safety -- such as the military and law enforcement -- as well as mandatory government payments such as Social Security and veterans' benefits.

In fact, as the Justice Department said in a legal opinion in 1995, "the federal government will not be truly 'shut down' ... because Congress has itself provided that some activities of Government should continue." Any claim that not passing a CR would result in a "shutting down" of the government "is an entirely inaccurate description," according to the Justice Department.

The "legal opinion" cited in the post is actually a memorandum opinion--a strictly advisory memo that was not legally binding, but offered legal guidance to the director of the Office of Management and Budget during the government shutdown in 1995. The memo provided only "advice regarding the permissible scope of government operations during a lapse in appropriations."

Moreover, NRO's assertion that the crucial government services will continue "without interruption" is also wide of the mark. Though it cites an old DOJ memo, NRO fails to note that the DOJ itself is facing severe cutbacks. As Colorlines points out, significant portions of the DOJ's staff will be furloughed throughout the duration of the shutdown:

For the Justice Department, many of its staff will be exempt from shutdown-imposed furloughs, due to the nature of its national security work, but some of its divisions will have to send home huge swaths of their staff. Among those is the Civil Rights Division, which is furloughing 71 percent of its employees, according to a copy of the Justice Department's shutdown contingency plan.  Of the division's 634 employees, 182 will stay on board, including 134 attorneys.

Also hit: the general Civil Division with 71 percent of its 1,310 employees on furlough and the Executive Office for Immigration Review, which would lose 70 percent of its 1,339 employees.

All political appointees are immune to furloughs, but at yesterday's press conference, Holder said some of his agents and lawyers will not survive.

"It is entirely possible that we will have to put on furlough some FBI agents and prosecutors as result of the dysfunction that exists primarily in the House of Representatives," said Holder.

Perhaps even more unsettling, the immediate future of the federal courts is also in doubt. As The New York Times reports, not even the Supreme Court of the United States is immune from the effects of the shutdown:

A notice posted on the Supreme Court's website says the court "will continue to conduct its normal operations" through this Friday.  It is silent about what will happen if the "lapse of appropriations," as the notice delicately describes the madness, continues beyond that. The court will be announcing its plans a week at a time.

It is expected, though, that the term's first oral arguments will proceed as scheduled, shutdown or no, and that the court will conduct business as usual, much as it did during the Clinton-era shutdowns. How long Supreme Court operations could remain unharmed if the shutdown drags on is unclear.

For lower federal courts, a prolonged shutdown could be disastrous. Sufficient reserve funds are on hand for normal court operations for just 10 business days, through Oct. 15, according to a memo recently circulated by Judge John Bates, director of the Administrative Office of the United States Courts.

Once those funds are depleted, there would need to be extensive furloughing of staff, and reductions in probation, pretrial and courthouse security services to comply with the federal Anti-Deficiency Act, which allows only "essential work" to continue during a government shutdown. Coming on top of the devastation to the nation's court system caused by the maniacal across-the-board budget cuts known as sequestration, the damage to American justice would be compounded and hard to recover from once the impasse is over.

Even though, as The American Prospect notes, "criminal justice is generally considered an essential service" and many court services will likely remain available because of "[t]he Sixth Amendment's requirement that defendants be given a 'speedy and public trial,'" the effect of a shutdown on the courts will still be "substantial." Civil litigation is not protected by the same constitutional guarantees as criminal trials, and the shutdown could gravely impact government attorneys and other court staff:

While criminal-justices cases will be considered "essential" and will proceed, most civil litigation is likely to be suspended should the shutdown persist. Public defenders, already hit hard by the sequester caused by the last bout of Republican gone awry, may be required to work without pay and be compensated later.

As with most of the shutdown, however, the biggest effect will be on ordinary workers[.]


The workers least likely to be able to afford it, in other words, are going to be facing a period of unemployment should the shutdown continue. While this number might not be huge in itself, when combined with similar actions taken by other parts of the federal government the impact on many individuals and their communities grows substantially. A lot of working people are going to needlessly suffer because of the Republican temper tantrum enabled by our dysfunctional political system.

The shutdown is clearly having a significant effect on hardworking Americans, and it is now threatening to delay civil justice for those who rely on the federal courts. NRO's attempts to paint these very real harms as "almost comical" show right-wing media's contempt of government apparently extends to all three branches.

Photo by Flickr user Mark Fischer

Posted In
Government, Justice & Civil Liberties
National Review Online
Hans von Spakovsky
Courts Matter
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