On Thursday, October 3rd, more than 180 students came to listen as ACS and the Law and Government Program of Study hosted Professors Howell E. Jackson and Robert E. Mnookin in a panel discussion about the recent government shutdown. Professor Jackson began the talk by noting that despite the relative frequency of government shutdowns (17 in the last quarter century), this shutdown is unusual in that there has been a complete breakdown in the budget process; none of the 13 appropriations bills were passed this year. He then offered comments on the legal framework surrounding the government shutdown, and the constitutional options for keeping the government running. For example, Professor Jackson explained how the interpretations of the Antideficiency Act, which prevents spending in excess of appropriations, has kept the employees of some mandatory spending programs working during the shutdown, while forcing roughly 800,000 “non-essential” employees to go home. Professor Jackson wrapped up his remarks by expressing even greater concern over the impending debt-ceiling crisis.
Professor Mnookin, a renowned negotiations expert, extrapolated as to how the problem might be solved. He compared the current standoff to a game of chicken, where two cars drive towards each other until one driver finally swerves to avoid a collision (and loses the game). In Professor Mnookin’s view, the President needs to make it clear that he is willing to sit down and go through the process of negotiation to reach a solution. In this particular instance, the parties involved are beholden to very different constituencies, a fact that makes public negotiation fruitless. The talks would have to be private to be productive. Professor Mnookin views the President’s task as creating a “yesable” solution that the moderate Republicans can agree to without losing face. He should insist on a “clean” budget and “substantial” debt limit extension and, at the same time, jointly announce a process to address ACA amendments, tax reform, or changes in Social Security and Medicare.