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If we wanted to create a rule for the government budget that said that would prevent government from NOT leaving the government funded, would it require a constitutional amendment or could/should this be done by an appropriations law requiring only a majority of legislators?

Here's an example of what the wording might be like (not very formal, but I hope you get the idea of what I mean):

If the House of Representatives or Senate fail to agree on new funding or the Executive Branch fails to approve a budget, then the previous funding shall stay in effect until a new one is agreed on. The government or no portion of it may be shut down without funding as a result of the expiration of a budgeting law.

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    en.wikipedia.org/wiki/… and en.wikipedia.org/wiki/Bowsher_v._Synar strongly suggest you'd need a Constitutional amendment. You can't force a budget on tomorrow's Congress or today/tomorrow's President via law, since this power is embedded in the Constitution. It's essentially the same reason we'd need a Balanced Budget amendment, not law. – barrycarter Dec 26 '18 at 20:50
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    But when we change congresses/presidents, we are already forcing a previously passed budget onto the new congress/president. It is also conceivable that since Congress appropriates, it would not be an infringement of its powers to decide how to continuously appropriate as in the Balanced Budget Law which would infringed on another branch of congress. – Karlomanio Dec 26 '18 at 21:22
  • when we change congresses/presidents, we are already forcing a previously passed budget onto the new congress/president. No, we're not. There was a controversy a couple of years back re Congress not funding the enforcement of an existing law. And no, today's Congress can't infringe on the Constitutional right of future Congresses/Presidents. In fact, they can't even infringe on their own rights. If they pass such a law and change their mind later, they can do so. – barrycarter Dec 26 '18 at 21:59
  • Hi @barrycarter Thanks for your feedback. What I see happening is that the fiscal year overlaps the terms of congress and the president, so budgeting can occur that is enacted by one congress and continues into the next that would be elected with different members, thereby never having a say in that legislation. That is what I mean. Maybe I am just misunderstanding you. – Karlomanio Dec 26 '18 at 22:04
  • As @daviid-s notes, the new Congress can't take back money that has already been spent, but once that money runs out, they are not legally required to appropriate any new money. – barrycarter Dec 26 '18 at 22:11
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According to the Constitution, Congress has the power:

To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years;

So, without a constitutional amendment, there is no way to fund the military without passing at least a military spending resolution at least once every two years. But this also implies that for non-military spending, Congress has the power to pass a budget that lasts more than two years.

I think that Congress could, without a Constitutional amendment, specify that a previous budget would be in effect if no new budget was passed - at least for non-military spending. There's nothing in the Constitution to prevent it. However, you wouldn't want to do this for everything in the budget.

Let's say the budget one year contains $50 million to build a particular bridge in a particular location. If this provision kicked in, then another $50 million to build the same bridge would automatically be in the next year's budget. Are we going to build a second bridge in the same location? Or maybe there's $20 million to upgrade a particular agency's computer system. Are we going to upgrade it again? Probably not.

And things might become clouded when it comes to how the government is often funded - through continuing resolutions, instead of a budget. If a particular department gets $100 million per year in a budget, and they get $75 million for the first 9 months and then $30 million in a 3 month continuing resolution, how much should they get if this provision kicks in? $105 million, which is what they got in the last 12 months? $100 million, which was what they were allocated in the last actual budget? Or $120 million, which is the extrapolation of the last continuing resolution?

Congress could, of course, clear up any ambiguities by wording the laws correctly. And they could specify when an item was a one-off that shouldn't be automatically renewed. But they still might not want to pass this sort of law. Perhaps one reason is that it would be too easy to fall back on this, instead of passing a good budget that reflects the needs of the current year instead of the previous year.

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    "instead of passing a good budget that reflects the needs of the current year instead of the previous year" I'm not sure that's happened since 1793. – chrylis -on strike- Dec 27 '18 at 6:30
  • "I think that Congress could, without a Constitutional amendment, specify that a previous budget would be in effect if no new budget was passed" This fails in cases where Congress wants to change the budget (but not veto-proof majority) and the President does not. A President could just veto the spending bill and even though Congress wants to change the budget, they'd be impotent to do so. – David Rice Jan 28 at 15:37
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A normal vote is all that is needed.

A constitutional amendment is needed to prevent it from being possible.

The house originates the bill. It then goes to the Senate for changes/approval. Once the House and Senate have a bill to pass, they send it to the President to sign (bill is law) or veto (goes back). If it goes back then the bill requires a 2/3 majority to override the veto. To prevent it from happening, an amendment would be needed to alter how the separation of powers between legislative and executive function. That is, a clause needs to be added or altered. A law alone cannot circumvent a veto or required 2/3 override.

In this (current) case, it is the same as a veto. Two-thirds majority will overrule the veto and pass the budget. Additionally, the lack of the President's signature doesn't actually shut the government down, it only prevents it from spending more than what it is currently allowed to spend.

The shut down occurs when the various departments run out of money they were previously allocated.

Section 7 here.

To make changes that would prevent the government from ever shutting down would require amendments to the constitution. Specifically areas citing presidential approval or new language supporting a new mechanism to keep the budget operating.

To address your idea, this is already somewhat done in the sense that all essential federal government employees continue to work without pay. Once the budget is approved they will receive their back pay.

Edits to make improvements. Edit: To include information from comments

  • Hi @DavidS I'm not sure how this answers my question. I just was asking how to require the government from not shutting down. Can this be done through regular legislation or would it require a constitutional Amendment? At the beginning, you say all you need is a normal vote and then you say a constitutional amendment? – Karlomanio Dec 26 '18 at 21:16
  • I guess that is based on the context of your question. Are you asking what can be done in this instance? Or in general? The general answer is laid out in the link, it is explicitly said that it is done by vote to overrule a veto. Depending on how you are asking to "prevent' the shutdown will then change the answers. – David S Dec 26 '18 at 21:24
  • In general. I'm not interested in this specific case. Other countries never have this problem. Specifically, I'm interested in not letting it happen again and preventing it through procedure/law/constitutional amendment. – Karlomanio Dec 26 '18 at 21:26
  • A minor wrinkle as noted in Section 7: All Bills for raising Revenue shall originate in the House of Representatives. Of course, even if appropriations bills could be introduced by the Senate, the House could just vote against them, but this gives the House a little more indirect power re budgeting. – barrycarter Dec 26 '18 at 22:19
  • @barrycarter Unfortunately, many times appropriations bills are debated and created in the Senate before the House. To keep it "constitutional", sometimes the House passes the Senate's version first even though the House didn't actually create them. – Karlomanio Dec 26 '18 at 22:22
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Constitutional amendment.

I'm adding this answer because a lot of the existing commentary is getting lost in the weeds.

The fact is that any "mere legislation" that seeks to prevent government shutdowns indefinitely is subject to ongoing legislative review and repeal (think of the concept of the "nuclear option") in a way that the Constitution thankfully is not.

To be prudent the amendment may have to cover certain considerations and special cases that I haven't seen mentioned here but may already be a part of related law. For example the expenditure should probably be indexed to inflation, GDP or other economic variables at the discretion of the executive to prevent unreasonable automatic budgeting under extraordinary economic conditions like hyperinflation. Natural disaster or war may also justify certain kinds of opt out or automatic escalator clauses.

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Depends on how far you want to go to "prevent". No law could prevent a future Congress from undoing past law... Save a Constitutional Amendment. And even that is subject to ...further amendment. But:

The shutdown occurred because no funds were appropriated for certain purposes. I do not see why law could not be enacted authorizing and making appropriations to pay existing employees of the Civil Service etc under their existing employment contracts, rates of pay etc. and to pay for certain operations of the various departments (like buy gas for the FBI) - perhaps a long and carefully considered list - and to pay Military Salaries up to two years.... In other words appropriations language to make certain currently discretionary funds mandatory in the event of lack of discretionary funding. Probably written in a way to let the Government limp without hurting its employees, soldiers and key beneficiaries etc, but still make regular appropriations necessary.

The laws establishing Mandatory Spending programs such as Social Security and Medicare make such ongoing appropriations. I'm not aware of anything that says such appropriations can't be conditional, in fact I think they use the language "as needed".

PS. Mark Warner has introduced S.198 - A bill to provide for continuing appropriations in the event of a lapse in appropriations under the normal appropriations process, other than for the legislative branch and the Executive Office of the President. No Bill Text is available on Congress.gov but is available here: https://www.scribd.com/document/398006535/Stop-the-Shutdowns-Transferring-Unnecessary-Pain-and-Inflicting-Damage-In-The-Coming-Years-Act

PSS the bills title there makes the acronym Stop Stupidity..

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There is no constitutional mechanism by which Congress can be forced to make any law whatsoever. The only recourse for a "do-nothing" Congress is to vote them out of office at the end of their terms.

If memory serves, the only thing that could be readily construed as a way around this is the clear stipulation that the compensation to certain officials cannot be changed (in the case of the President) or reduced (in the case of Congress); any failure to pass a law paying these fellows would probably wind up in the Supreme Court, who would at the very least rule that the government must cut those specific checks.

It is not impossible that one of the more rationalization-prone judges in the US federal court system would rule that the failure to make other payments is a violation of some person's rights. That would probably wind up in the Supreme Court's lap, too.

  • A failure to pass a law specifying the compensation of the president or congress would mean that the level of their compensation would remain unchanged, not that they would go unpaid. – phoog Jan 25 at 11:38

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