The Opinion That Broke the Government

It's Wednesday, March twenty fifth, and welcome to HigherIQ. If you flew anywhere this week, you probably noticed the lines. TSA wait times at Hartsfield-Jackson in Atlanta hit four hours on Monday. Over three hundred and sixty TSA officers have quit since the shutdown started. And yesterday, ICE agents showed up at airport security checkpoints to fill the gaps. But here's the part most people don't know: for the first hundred and ninety four years of this country, government shutdowns didn't exist. Not during the Civil War. Not during the Great Depression. Not during World War II. The entire concept was invented in 1980, by one man, in one legal opinion, and he never intended any of this. The current shutdown started on February fourteenth. The Department of Homeland Security lost its funding after Senate Democrats blocked the appropriations bill over ICE enforcement reforms following the killing of two US citizens by federal agents in Minneapolis in January. It's now day thirty nine. TSA workers have missed two full paychecks. Callout rates hit fifty five percent at some airports. At least three hundred and sixty six TSA officers have quit since the shutdown began. Atlanta's Hartsfield-Jackson, the busiest airport in the country, told travelers on Monday to arrive four hours early. Houston, Baltimore, San Diego, all reporting the same. The deal being negotiated as of yesterday would fund ninety four percent of DHS but leave ICE's deportation operations unfunded. Senate Republicans said they'd handle ICE funding through a separate reconciliation bill. Democrats want enforcement reforms first. Congress is about to leave for a two-week Easter recess, which means this could easily stretch into mid-April. We're not going to litigate who's right in this particular fight. We're going to explain the system that makes it possible for the government to shut down at all. Because it didn't used to be. The Constitution gives Congress the power of the purse. Article One says no money can be drawn from the Treasury except through appropriations made by law. For most of American history, that meant Congress passed spending bills, the president signed them, and federal agencies operated. When Congress was late with the bills, which happened regularly, agencies just kept running. They spent on credit, knowing Congress would eventually pass the funding and make it retroactive. Between 1950 and 1980, there were at least seven funding gaps. None of them resulted in a shutdown. Nobody went home. Nobody missed a paycheck. The government kept functioning because everyone assumed that was the point. Then came a series of coincidences that nobody would have scripted. In the late 1970s, funding gaps started happening more frequently, tangled up in fights over abortion, school integration, and other policy disputes that had nothing to do with spending. Every year of the Carter presidency, Congress failed to pass a budget on time. A congressional staffer working for Representative Gladys Spellman of Maryland stumbled across an obscure 1884 law called the Antideficiency Act, originally passed to stop federal agencies from intentionally overspending their budgets. Spellman asked Comptroller General Elmer Staats whether this old law meant agencies had to stop working when their funding lapsed. Staats said no. He wrote that Congress clearly didn't intend for agencies to close during routine appropriations delays. But Spellman also asked the Attorney General. Benjamin Civiletti, Jimmy Carter's AG, read the same law and came to the opposite conclusion. On April twenty fifth, 1980, Civiletti issued a legal opinion stating that the Antideficiency Act prohibited agencies from spending any money during a funding gap, "except as necessary to bring about the orderly termination of an agency's functions." Then he went further. He said the Justice Department would enforce the criminal provisions of the act against any federal official who kept their agency running without appropriations. That meant fines up to five thousand dollars and up to two years in prison. Five days later, on May first, 1980, the Federal Trade Commission became the first agency in American history to shut down due to a funding lapse. Sixteen hundred employees were furloughed. Federal marshals were sent to enforce the closure. The whole thing lasted one day and cost about seven hundred thousand dollars. It was treated as an oddity, a one-off bureaucratic hiccup. Nobody imagined it would become a recurring feature of American governance. Civiletti issued a revised opinion in January 1981 that softened things slightly, carving out exceptions for work that protects human life or property. This is why air traffic controllers still go to work during shutdowns. This is why "essential" employees keep showing up. But the core framework held: if Congress doesn't pass the spending, the government stops. That binary, funding either exists or it doesn't, became the new normal. For the first decade, shutdowns were brief and mostly fell over weekends. Nobody really noticed. The tool sat there, unused as a weapon, until Newt Gingrich picked it up in 1995. Gingrich, then Speaker of the House, forced two shutdowns over a budget dispute with Bill Clinton, lasting a combined twenty six days. It was the first time a shutdown was used explicitly as political leverage, a way to force the other side to negotiate by inflicting visible pain on the public. It didn't work politically. Clinton's approval ratings went up. Gingrich's went down. But the precedent was set. The shutdown was now a bargaining chip. The playbook has been reused ever since. In 2013, Ted Cruz led a shutdown over the Affordable Care Act that lasted sixteen days and furloughed roughly eight hundred thousand federal workers. In 2018 and 2019, a shutdown over border wall funding lasted thirty five days, the longest in history at that point, until TSA agents started calling in sick en masse and air travel disruptions forced a resolution. The Congressional Budget Office estimated that shutdown alone cost the economy eleven billion dollars, three billion of which was never recovered. The pattern is always the same: Congress can't agree, agencies close, essential workers keep working without pay, public services degrade, and eventually someone blinks. Then Congress retroactively pays everyone for the time they weren't allowed to work. The government spends money to shut itself down and then spends more money to undo the shutdown. The people who suffer most are the federal employees caught in the middle, people like TSA agents who are expected to show up, work full shifts, and protect the flying public while their mortgage payments bounce. No other major democracy works this way. In the UK, if Parliament can't agree on a budget, the previous year's spending levels continue automatically. In Canada, interim supply keeps the government funded during budget disputes. In Germany, the constitution explicitly allows the government to keep spending at prior levels. Australia, Japan, France, all have mechanisms that prevent a budget disagreement from shuttering government services. The American system, where a lapse in appropriations triggers a legal obligation to close the government, is globally unique. And it exists because of a single legal interpretation of a law written in 1884 to solve a completely different problem. Civiletti, now in his nineties, told the Washington Post in 2019 that he "couldn't have ever imagined" shutdowns would last this long or be used as a political weapon. He said he was offering "a purely direct opinion on a fairly narrow subject" that "has been used in ways that were not imagined at the time." The legal opinion was about accounting compliance. It became a doomsday button. The Civiletti opinions could be reversed. A future attorney general could issue a new interpretation. Congress could pass a law establishing automatic continuing resolutions, the way nearly every other democracy handles it. The mechanism that causes shutdowns is not in the Constitution. It's not in the Antideficiency Act itself. It lives in two legal opinions from 1980 and 1981 that one lawyer wrote for one president to address a problem at one agency. Everything that's happened since, every furlough, every missed paycheck, every four-hour TSA line, traces back to that. So if this comes up in conversation, here's how to frame it. Government shutdowns aren't an inevitable feature of democracy. They're a uniquely American invention, created by accident in 1980 when an attorney general interpreted an 1884 accounting law in a way nobody had before. For a hundred and ninety four years, the government never shut down. Since that opinion, it's happened twenty one times. The TSA lines, the missed paychecks, the ICE agents at airport checkpoints right now, all of it flows from a legal opinion that its own author says was never meant to be used this way. Stay informed, stay curious, and we'll see you tomorrow.