Jeremy Rabkin Responds on the Shutdown and National Security

Jeremy Rabkin, a law professor at George Mason University, sent me an email in response to my post from Sunday about the shutdown and national security. He poses a series of questions, which I reproduce here:

Ben Wittes’s posts on the government shutdown raise questions not yet addressed. (1) The shutdown allows exemptions for government employees performing “essential” work.  Why hasn’t the Obama administration declared all officials engaged in national security work to be “essential”? (2) House Republicans have proposed a number of bills to refund particular urgent aspects of federal operations, such as activities of the Veterans Administration.  President Obama has rejected this “piece meal” approach.  Why hasn’t the President agreed to an exception for national security operations and urged Republicans to fund those parts of the government at pre-shut down levels? (3) The White House seems determined to make the shut-down look as painful as possible, as by "closing" (i.e. barricading) the open-air World War II memorial, even to World War II veterans on special tours---though the Mall was then reopened for an immigration reform rally. Could it be that the White House is also playing politics with national security issues? (4) Lawfare condemns Republicans for, in effect, making national security operations into a political football.  It has posted an approving comment on this charge from an unnamed senior administration official.  Wouldn’t this charge be more persuasive if Lawfare were not running with the national security ball, itself, and then shouting “Touchdown!” for Team Obama?

A few thoughts in response. First, Lawfare does not condemn Republicans. Lawfare does not take positions institutionally on any issues, and any of its writers is certainly entitled to disagree with my expressed view of this matter. I, however, do criticize House Republicans for holding national security operations hostage to unrelated fiscal and health care policy disputes. Second, the official I quoted is not a political appointee but a long-serving career official. Rabkin can accuse me of running the ball for Team Obama, as he puts it, but the truth of the matter is that the rank-and-file career national security officials I speak to are alarmed and demoralized. I obviously haven't done a scientific poll of the federal work force, but I'd be stunned if the people in the trenches are, generally speaking, complacent about the impacts associated with their being kept home. Third, is the White House playing politics? Of course it is. That's what White Houses do. And I don't fault Republicans for playing politics either. I fault them for playing Russian Roulette--which strikes me as a better sports metaphor here than football. As I explained in my original piece, I don't think this situation is symmetrical between the parties. One side chambered a round and pointed the gun at the country's head. That creates a real quandary for the other side. Playing politics is one thing. Refusing to fund the government when we have troops in the field unless you get what you want on domestic matters is a high-stakes gamble that a responsible person sworn to protect the Constitution just doesn't take. Fourth, why hasn't Obama declared a great deal more people essential and ordered them back to work? Ultimately, of course, the Defense Department did interpret its discretion broadly and bring the vast bulk of its workforce back, and the administration is clearly moving more generally in the direction of declaring more national security civilians essential. I'm not an expert on this area of the law, and I don't purport to know how aggressively the president could act in this vein. I will, however, say this: It ill becomes Congress to refuse to appropriate money for national security activities and then to blame the president for failing to push the legal boundaries in effect to defy its will and conduct those activities anyway. That's just not the way a serious legislature behaves.