More Silliness on the Debt Ceiling and Government Shutdowns

Over at The Caucus blog at the New York Times, Carl Hulse yesterday posted about a letter from Reps. Barney Frank (D-MA) and Norm Dicks (D-WA) to Defense Secretary Robert Gates asking him “to explain the military impact of putting the government into default,” that is, what would happen if Republicans in Congress refuse to increase the federal debt ceiling when it’s reached later this year. Here’s the money quote from Hulse’s post:

More specifically, they asked the secretary what the effect would be on combat operations and military personnel in Afghanistan and Iraq “if Congress were to fail to raise the debt limit and a government shutdown occurred.”

“Would the troops in the field be imperiled if we reached a point where for however long the Pentagon was unable to spend money?” they wrote.

I have enormous respect for Hulse, who is a very good reporter and someone who, when he calls, you always have to take very seriously. And he got part of the story exactly right: Frank and Dicks were trying to put the GOP on the defensive by making the impact on the military of what some Republican members of Congress say they will do (or, in this case, not do) on the debt ceiling an issue.

Unfortunately, Hulse missed the most important part of the story: What Frank and Dicks was asking about in their letter to Gates was based on a number of inaccurate notions about the federal debt ceiling, government shutdowns, and the Pentagon.

Here are the basics.

1. As I noted earlier this week, not increasing the debt ceiling when the government’s current borrowing limit is reached does not result in a default or shut down the government. A shutdown only occurs when an appropriation isn’t enacted and a “funding gap” occurs.

2. In the past, most military activities have continued whenever a funding gap has occurred (there have actually been many, although none since 1996) because the president has determined that, in accordance with a memo issued in 1980 by Attorney General Benjamin Civiletti, there is “some reasonable and articulable connection between the function to be performed and the safety of human life or the protection of property.” This ruling was subsequently used by Ronald Reagan’s first OMB Director David Stockman in 1981 in a memo to agency heads in which he said that programs that “Provide for the national security, including the conduct of foreign relations essential to the national security or the safety of life and property” were exempt if a shutdown occurs.

Based on these two rulings, the Clinton administration exempted military activities during the shutdowns that occurred in 1995 and 1996. While it’s certainly true that the Obama administration could decide that the military will not be exempt if there is a shutdown this year as some are threatening, that seems very unlikely.

3. On top of everything else, the Pentagon actually has the ability to continue to operate even if its appropriation isn’t enacted because of the “Food and Forage Act” of 1861. Yes, it’s very old. And, yes, it’s amazingly obscure. Nevertheless, according to this 2007 report by OMB Watch, the Food and Forage Act gives the military

the unusual power to obtain goods and services prior to the enactment of an appropriations bill. Some restrictions apply, and the scope of the authority it grants is unclear. But these powers could be interpreted in a way that is sufficiently broad to sustain ongoing military operations for significant periods of time in the absence of enacted appropriations. So long as the president invoked this authority in a timely manner, the needs of deployed soldiers could be provided for even if negotiations over the supplemental appropriations bill were prolonged significantly.

In other words, unless the president decides to do something very unexpected and not exempt them, for a variety of reasons a shutdown will have no impact on the troops overseas if there’s a government shutdown.

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