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The natural progress of things is for liberty to yield and government to gain ground. —THOMAS JEFFERSON, 1788

Obama administration unnecessarily closes many private businesses in government shutdown

Barak Obama-United States-PoliticsPJ Media’s Bryan Preston reported Wednesday that the “White House” is “ordering hundreds of privately run, private funded parks to close,” using the government shutdown as an excuse (even though most federal employees remain on the job):

Warren Meyer of Phoenix, AZ, is owner and president of Recreation Resource Management, Inc.

RRM employs about 400-500 camp workers and managers across about a dozen states. It is one of a handful of companies that have been managing national parks and campgrounds as tenants for years, through previous government shutdowns including the last one in 1995-1996. Those previous shutdowns never closed any of the parks managed in this way, but the current shutdown threatens closure.

But this time, it’s different: “They are shutting all of us down ASAP.  Marching orders straight from the White House,” says Meyer.

As Preston noted, “The campgrounds are self-sufficient and receive no federal funding. No government employees staff or manage the parks. The management companies pay the National Park Service out of the funds they generate from operating the thousands of campgrounds. So . . . the shutdown is puzzling to Meyer.”  Earlier, Meyer wrote:

[T]oday, we have been told by senior member of the US Forest Service and Department of Agriculture that people ‘above the department’, which I presume means the White House, plan to order the Forest Service to needlessly and illegally close all private operations. I can only assume their intention is to artificially increase the cost of the shutdown as some sort of political ploy.  The point of the shutdown is to close non-essential operations that require Federal money and manpower to stay open. So why is the White House closing private operations that require no government money to keep open and actually pay a percentage of their gate revenues back to the Treasury? We are a tenant of the US Forest Service, and a tenant does not have to close his business just because his landlord goes on a vacation.

Earlier, as Preston notes, the National Park Service barricaded the World War II Memorial in Washington, D.C. (an unmanned outdoor memorial that has historically been open 24 hours a day), and closed a self-sufficient living history farm in Virginia, as we discussed earlier.  It also reportedly shut down restaurants and hotels on public land, expelling guests.

As Case Western Reserve University Law Professor Jonathan Adler notes, these forced closures of private businesses and facilities are of dubious legality:

[S]imilar closures were not ordered during prior shutdowns, so they would not seem to be required. So, for instance, the National Park Service ordered Philadelphia’s City Tavern closed, even though it was not closed during prior government shutdowns. . . .The fact that some facilities are being closed now when they were not closed during prior shutdowns suggests these are discretionary choices. These closures also raise some interesting legal questions. For instance, one what authority can the NPS or another federal agency order the closure of a facility run by a private concessionaire or tenant? Do the relevant lease or concession agreements provide for this? And if there is not clear authority for ordering a closure in this sort of instance, might the federal government be liable for the subsequent losses?

I understand the “Washington Monument strategy.” President Clinton used it quite effectively. But it seems to me there’s a difference between focusing cuts where they will be the most visible (or inflict the most pain) and ordering costly actions to create the appearance of cuts where no cuts are required. So, for instance, the NPS Park Police were apparently ordered to erect barriers across the entrances to various parks that cost nothing to keep open, such as the WWII memorial and overlooks on the GW parkway. But any such orders should be justified by the need to conserve funds. Closures that are not legally required and that cost the government money would seem to exceed the executive’s prerogative.

The victims of these closures “‘should immediately file a lawsuit and seek a temporary injunction against the  government,’ said Former Justice Department lawyer Hans Von Spakovsky.”  Other former government lawyers also questioned the legality of the government’s actions.

Meanwhile, the government is actually expanding its presence at national monuments in order to drive people away, at increased expense to taxpayers.  The Daily Caller reports that “Many national monuments are getting  a police presence for the first time in recent memory. The Lincoln Memorial  was open 24/7 without overnight staff until the shutdown, according to its  website. Since the shutdown a night watchman has been  installed. . . .The Martin Luther King Jr. Memorial, too, was also open 24/7 with no  overnight staff, according to its website, but now is fenced  off. . . .The Park Service is also using taxpayer money to barricade scenic overlooks,  another set of resources that typically need no security presence and do not  cost anything to maintain. . . .The Obama  administration has also gone to great lengths — and at great cost — to close off  public areas that had remained accessible to the public during previous  shutdowns.”

Hans Bader

Hans Bader is Counsel at the Competitive Enterprise Institute in Washington. After studying economics and history at the University of Virginia and law at Harvard, he practiced civil-rights, international-trade, and constitutional law. Hans also writes for CNS News and has appeared on C-SPAN’s “Washington Journal.”

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