Photo above: The Hertford Bridge in Oxford, England. Used by Permission. © Tom Ley 01302 782837

Friday, March 18, 2011

Who Shuts Down the Government According to the Constitution?

James Davids, J.D.
Robertson School of Government

Shutting down government, or at least stalling its progress, seems to be a rite of spring these days. Last year a Republican filibuster delayed passage of the health care reform bill in the U.S. Senate.

This spring, the Democrats in the Wisconsin Senate and the Indiana House decided to shut down reform efforts in their states by taking their “spring break” in, of all places, Democratic-controlled Illinois (much to the delight of the Illinois hoteliers). Similarly, this spring there has also been much talk about a federal government shut down. In this discussion, however, I have seen little coverage on what the Constitution says about responsibility for a federal government shut down.

In the Constitution, there is a rather obscure provision known as the Origination Clause. This Clause, which is found in Article I, Section 7 of the Constitution, simply states that “[a]ll Bills for raising Revenue shall originate in the House of Representatives.” Although this Clause contains no express words of “shut down” or similar import, it does designate responsibility for supplying government with money, which of course allows it to operate. In conformity with this process, all recent Continuing Resolutions to fund government have originated in the House of Representatives.

Starting the process of funding government in the body closest to the will of the electorate was not an original idea for the Founders. England for many years prior to our nation’s founding required money bills to start in the House of Commons which makes eminently good sense – the representatives of those who pay the taxes should have the first say in what those taxes will be.

James Madison, our fourth President and the Father of the Constitution, noted the importance of the Origination Clause in The Federalist No. 58. He wrote: “The House of Representatives cannot only refuse, but they alone can propose, the supplies requisite for the support of government. They, in a word, hold the purse . . . [which] may, in fact, be regarded as the most complete and effectual weapon with which any constitution can arm the immediate representatives of the people . . .” This powerful weapon, this power of the purse, lies in the hands of those public officials who must face the electorate every two years and therefore are most sensitive to the will of the people, the members of the House of Representatives.

The Origination Clause gives the House the power to start the process of taxing and spending, but this power is not exclusive. That is, in our system of checks and balances, bills to fund the government, like other legislation, must also be approved by the Senate and then signed by the President before they become law.

The House of Representatives fulfills its constitutional role to fund government if it passes a budget and then forwards it to the Senate for consideration. The Senate, of course, may not agree with the budget proposed by the House. Similarly, the President may disagree with the budget passed by the House and Senate and therefore veto it. If the Senate and President disagree with the House passed budget, however, it is they, and not the House, that is deciding to shut down government. The Senate and President would assure continuance of government by agreeing with the budget passed by the House.

Please recognize that this analysis of the Origination Clause does not favor either party. Currently the Republicans control the House as the result of the last election. They want to spend less money than the Democrats in the Senate and the President. If the House passes a bill cutting spending and the Senate and/or President refuses to accept it, it is the Democratic Senate or President Obama who is shutting down the government and not the Republican House. Please note, however, that when the voters return the House to Democratic control in the future and the Senate or the presidency is controlled by the Republicans, a budget passed by the House, but refused by the Senate or President will also result in government shut down, but this time caused by the Republicans.

The Origination Clause gives responsibility for initiating and passing a budget to the body that can be thrown out of office every two years. The House Republicans are, just like their Democratic predecessors, responsible directly to the will of the electorate. They should respond to the public whom voted them into office. They will fulfill their constitutional responsibility by passing a budget bill the House majority finds acceptable. If this bill is unacceptable to the Democratic controlled Senate and Executive Branch, they can refuse it and therefore cause the government to run out of funds. Such a shut down, of course, would be the fault of the Democrats and not the House Republicans.


  1. Thank you for that balanced and Constitutional look at our ongoing budget problems. Your point that the House isn't implicit in the Senate's or president's rejection of a budget bill is an insightful one. I wish more conservatives understood this and saw Congress less as a unified body and more as the check and balance upon each other the Founders intended.

  2. Indeed, this was an insightful article. This is just one of the more recent examples of the Congress loosing focus. If Congress would simply return to the basic principles on which our nation was founded, we would surely be in a more favorable position. Amen.