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The Cutting Edge

Will We Learn from the Government Shutdown?

Many of us who have served in the government did not fear a government shutdown.  We have seen this movie before.  The movie has a predictable ending:  regret, recrimination, and a reminder of how important a functioning government is to our economy, and our daily lives.

This time, it is less clear that the lesson will sink in.  Rather than acknowledge that cutting off government funding has deleterious consequences, many of the same political actors who brought us the shutdown are blaming its utterly predictable impacts on the very governmental workers who are victimized by it.

Enough is enough.  Attempting to blame the hurt associated with the shutdown on the Faustian choices that a remaining, skeletal federal workforce has had to make in dealing with the shutdown represents a new high water mark in cynicism. Furloughed federal workers are required by law to follow the law set out by Congress—even when that means not working. The blame belongs in one place, and one place alone:  with those in the Congress who defunded the government and forced it to close.

The National Parks are providing the venue for this play-acting.  When Congress denied access to the National Park Service for the operational funds needed to keep our parks open, they had to close.  It is that simple.  And the closures hurt.  They hurt individual Americans and visitors from around the world who had planned trips to our parks, and they hurt local communities whose businesses profit from these visits.  Indeed, as of October 10, an estimated 7 million people were unable to visit 12 of the busiest and biggest U.S. national parks, costing parks and nearby communities about $76 million in lost visitor spending for each day of the shutdown.

Rather than accept these completely predictable consequences, some in Congress and in the media have been stirring up a counter-narrative that the National Park Service has unnecessarily closed our parks.  Spurred on by this disingenuous criticism, the conservative blogosphere has been buzzing, prompting local officials in southern Utah to threaten removal of the “closed” signs on ranger-less National Parks and take possession of the parks.  Likewise, antigovernment protesters physically removed barriers from Washington DC park attractions and dumped them outside the White House, somehow blaming the Park Service employees who have been thrown out of work by Congress for the closures.

The counter-narrative skips over the stark reality that—thanks to Congress—the operational funds needed to keep both our “open air” and our fee-collecting parks safe, clean, and welcoming are gone.  It also overlooks the fact that furloughed National Park Service employees who report to duty and try to mitigate the harsh impact of the shutdown run the risk of actually breaking the law.  More specifically, the Congress prohibits any federal employee from “mak[ing] or authoriz[ing] an expenditure or obligation exceeding an amount available in an appropriation.” The Congressional Research Service summarized the law in this way:  “The Antideficiency Act generally prohibits agencies from continued operation in the absence of appropriations.  Failure to comply with the act may result in criminal sanctions, fines, and removal.”

So let’s cut out the nonsense and simply acknowledge that when government services are defunded, all of us suffer.  It’s true for the National Parks, and it’s also true for many other important governmental services that we take for granted, from getting a passport, to being assured that our food is safe, to getting permits that many businesses need to continue to operate.  Around the edges, good faith efforts can and are being made to overcome the cutoff of federal funds (including, for example, Secretary of the Interior Sally Jewell’s invitation that states supply funds to keep National Parks within their borders open).

But there is no substitute for getting our dedicated federal workforce back to work, doing the job that the American people want them to do.  As they return to their posts, how about a simple “thank you” and “welcome back”?  It would be a first step in the road to civility that is sadly missing from today’s cynical and mean-spirited politics.

David J. Hayes, JD ’78, is a distinguished visiting lecturer at the Stanford Law School and is serving as a Senior Fellow at the William and Flora Hewlett Foundation. From 2009 until July 2013, Hayes served as the Deputy Secretary of the Department of the Interior where he was the Chief Operating Officer and second in command to the Secretary, with line authority over Interior’s 70,000 employees, $12 billion dollar budget, and the Department’s ten major bureaus and agencies. Prior to serving as the Deputy Secretary of the Interior, Hayes was a leader in the President’s Transition Team, heading the energy and environmental agency review process, with responsibility for the Departments of Energy, Agriculture, and Interior and the Environmental Protection Agency. He previously served as the Deputy Secretary and counselor to the Secretary of the Interior from 1997 to 2001 in the Clinton Administration. Hayes worked for many years in the private sector where he chaired the Environment, Land and Resources Department at Latham and Watkins, an international law firm. He is a former chairman of the Board of the Environmental Law Institute; he was a consulting professor at Stanford University’s Woods Institute for the Environment; he served as a Senior Fellow for the World Wildlife Fund, and was the Vice-Chair of the Board of American Rivers.

Read an earlier Stanford Lawyer Q&A with Hayes when he was appointed Deputy Secretary of the Department of the Interior in 2009,

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