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Despite the obvious drawbacks to short-term funding measures, they’re commonplace in Congress. With a few exceptions, at least one has been enacted almost every fiscal year since 1977, with the exceptions of 1989, 1995, and 1997. That means that Congress has failed to pass a budget by October 1 almost every year for 45 years.

All CRs, however, aren’t created equal. Some are short-term measures to buy Congress a bit more time to put the finishing touches on appropriations bills; others can stretch for months over the course of back-to-back, short-term funding measures, keeping funding levels frozen long past the beginning of the new fiscal year.

That’s the case with Friday’s measure — the third of this fiscal year, following two other short-term measures signed by President Joe Biden last year — and Congress has even passed back-to-back CRs covering an entire fiscal year before, in 2007, 2011, and 2013, according to a Congressional Research Service report.

There are consequences to Congress’s procrastination: those back-to-back, multi-month CRs can create serious funding problems and program freezes for government agencies, and in such a divided Congress, it’s not clear when a new appropriations bill will pass.

Part of the problem is that the CR mechanism has become ingrained into the budget process, Mark Harkins, a senior fellow at Georgetown University’s Government Affairs Institute, told Vox. At this point, he said, CRs are “seen as standard operating procedure,” although “nobody likes them, they’re not positive.”

“It’s almost as if, every October 1, you’re essentially furloughed at your current salary,” Harkins said, making it difficult to plan for the future.

As Vox’s Li Zhou pointed out Thursday, the latest CR means that government agencies are still operating on a budget from December 2020. Not only is that budget insufficient to meet the funding needs of major portions of the government, such as the Defense and Transportation departments, but the use of the CR prevents the implementation of new programs from legislation Congress has already passed, like the infrastructure bill. Without individual appropriations bills or an omnibus bill that accounts for all of the programs and funding needed for different agencies, the government can’t get started on a number of major projects despite the clear need for infrastructure upgrades and bipartisan support for the legislation.

In addition to holding up already-passed legislation, appropriations bills can have secondary, but serious, policy repercussions in their own right. One major issue with the current bill, for example, is the Hyde Amendment, a ban on using federal funds for abortion care. The amendment has been included in the appropriations process every year for decades, but Democrats hope to cut it from an eventual fiscal year 2022 funding deal.

As Alice Miranda Ollstein and Jennifer Scholtes reported for Politico last week, the amendment’s defeat is looking less likely — despite a campaign promise from President Joe Biden — as Republican Sen. Richard Shelby, the ranking member on the Senate Appropriations Committee, exerts his leverage in an evenly divided Senate. But the Hyde Amendment’s fate shows just what’s at stake when Congress doesn’t hammer out a new appropriations package.

The partisan divide in Congress is part of the problem; though Democrats have unified control of Washington — both chambers of the Congress and the presidency — they “don’t control the money,” Harkins told Vox.

That’s because appropriations bills require 60 votes in the Senate, and because Democrats have such a slim majority in the Senate — 50 seats, with Vice President Kamala Harris as the tiebreaking vote — there’s no way for them to pass an appropriations measure without the cooperation of ten Republican senators.

Continuing resolutions have become increasingly common since the 1970s

Part of the point of a CR, as Politico explained in a 2015 investigation into “CR hell,” is that it’s supposed to be so restrictive and unpleasant that it forces legislators to come up with a longer-term solution — either the 12 appropriations bills that Congress is supposed to pass each fiscal year to fund the government, or an omnibus package that wraps up all of those bills into one.

As the Center for American Progress documented in 2018, the process by which Congress is supposed to pass and enact those bills is outlined in the 1974 Congressional Budget Act.

Theoretically, each of 12 separate appropriations bills should get passed before the October 1 deadline. The last time that all of the appropriations bills were actually passed on time, however, was fiscal year 1997 (there were 13 separate appropriations bills at the time).

More commonly, Congress now uses omnibus bills, which bundle multiple appropriations measures into one package, to fund the government. But even those can be difficult to achieve, resulting in yet more short-term funding measures.

In the political reality of 2022, Harkins told Vox, there’s little impetus make sure that the appropriations process works as intended in the Congressional Budget Act, because there are no consequences for legislators who stymie that process.

“It’s not a systemic problem, it’s an operator problem,” Harkins said. “And those operators” — members of Congress, and specifically senators — “have to be willing to compromise.”

This year, Harkins told Vox, the stakes are particularly high. Given the likelihood that Republicans will take back at least one chamber of Congress in the midterm elections in November, the 2022 appropriations package “could be the only appropriations Democrats get. That’s why this battle has been so pitched,” he said.

It’s unclear, however, what — if anything — can convince Congress to return to something more closely resembling normal order for the appropriations process. One possibility is the imminent return of earmarks — the “pork barrel” spending that members of Congress could request for projects in their districts and add to the appropriations bills. The practice was banned in 2011, but it did give legislators “a little skin in the game,” Harkins said, a reason to pass the appropriations bills.

The current deadlock over this year’s omnibus package, however, casts that into some doubt, and Harkins said that there’s a sense, too, that there has to be an undeniable reason — a trigger — to overhaul the process. In 1974, that trigger was President Richard Nixon’s overly heavy hand in the budget process and his impounding of nearly $12 billion in funds that had already been appropriated by Congress, according to the Center for American Progress.

Despite the problems that Congress’s reliance on continuing resolutions can cause, Harkins said, “I’m not sure we have that trigger yet.”

The time from a microbe (pathogen) being identified to widespread vaccination for different infectious diseases.

Still, there are caveats. The biggest one is that the speed of the Covid-19 vaccine rollout primarily applies to high- and middle-income countries. Our World in Data reports that while 61.9 percent of the globe has received at least one dose of a Covid-19 vaccine, only 10.6 percent of people in low-income countries have received at least one dose.

As the CGD report shows, this rate is actually slower than campaigns to vaccinate for diseases like tuberculosis and diphtheria in low-income countries. In other words, we know we can vaccinate at a faster rate in those areas — we just haven’t been able to do it with Covid-19.

Josh Michaud, associate director for Global Health Policy at the Kaiser Family Foundation, said in an email, “Our benchmark for success shouldn’t necessarily be ‘faster than what we did decades ago.’ Rather it should be, ‘what’s the best we can do right now with existing technology and know-how?’”

Kenny doesn’t disagree, and argues that the report is a sign of optimism with an asterisk. “’Did we do as well as we could?’ is a separate question. I think no, not nearly as well as we should have,” he said. “It is still sort of interesting and important to recognize that we are in a better place than we … have been historically with vaccine rollouts.”

That progress is indeed encouraging. While the Covid-19 vaccine rollout highlights how inequities continue to leave the most marginalized populations of the world underprotected, the campaign’s broader success is promising for both the current pandemic and for pandemics that may arise in the years and decades to come. Humanity now knows how fast it can get a global vaccination program up and running, and that sets a standard for the future.

The Covid-19 vaccine rollout, in historical context

One lesson we have absorbed from Covid-19 is that when it comes to infectious disease, speed — or the lack of it — kills.

The longer a pathogen is able to spread through a population without being checked by a vaccine, the more people it can infect. The CGD study reports that prior to Covid-19, aside from smallpox, the average period between identifying the disease-causing pathogen behind a disease (such as poliovirus for polio) and development of a vaccine was 48 years. After the pathogen had been identified, the average time between vaccine development and vaccine rollout sufficient to reach 20 percent global coverage was 36 years; for 40 percent coverage, 42 years; and for 75 percent coverage, 53 years.

For the Covid-19 vaccines, however, the period between identifying the disease-causing pathogen and developing a vaccine was less than a year. And the time between vaccine development and 20 percent global coverage was just under eight months, while getting to 40 percent coverage took another three months.

The Center for Global Development

Speed and progress of different global vaccination campaigns.

The CGD report also put the Covid-19 vaccine development and rollout in the context of three major global vaccine initiatives: smallpox, routine childhood vaccinations (against diseases like pertussis and tetanus), and annual influenza.

There were lessons to be learned from each of them. With smallpox, the improved technology and vaccination strategies (particularly the use of disease surveillance and ring vaccination — vaccinating those most likely to be infected) were crucial to its gradual eradication. Routine childhood vaccination against diseases like polio proved the necessity of having good financing and a global infrastructure for universal immunization. Global influenza vaccination efforts revealed the importance of building capacity for recurring vaccination.

Those and other lessons paved the way for the rapid development and distribution of Covid-19 vaccines.

“It helped that much of the technology had already been primed and ready to go based upon a foundation of existing research, including the viral vector and mRNA vaccine platforms,” Michaud said.

In addition, high- and middle-income countries alike had much more of the health financing and infrastructure today to develop, manufacture, acquire, and get shots into the arms of their populations. Before Covid-19, the annual influenza shot was the world’s largest regular vaccination program. Yet as of 2013, it reached only about 7 percent of the global population, with a majority of coverage in richer countries, according to the CGD report.

Meanwhile, the number of Covid-19 vaccinations delivered annually is 9.4 times that of influenza vaccines given in 2019, with much greater coverage in both higher- and lower-middle-income countries. (In this case, “annual” Covid-19 vaccinations are “derived by taking the total Covid-19 doses delivered as of this publication and dividing by two,” per the report.)

Where the world fell short

That doesn’t mean there weren’t hiccups in the distribution of Covid-19 vaccines.

The campaign against smallpox is worth zooming into for one aspect in particular that has been in short supply during the Covid-19 pandemic: global cooperation.

The WHO, then as now, attempted to coordinate a joint global response. And crucially, despite the tensions of the Cold War, the two superpowers, the United States and the Soviet Union, engaged in “vaccine diplomacy” that would prove crucial to the global eradication of smallpox. This collaboration contributed to the vaccination of “significant proportions of populations even in some of the world’s poorest countries within 18 months,” the CGD study states.

The Center for Global Development
Speed of Covid-19 vaccine rollout in 2020 by country income group compared to the first three years of rollout data for vaccines against diseases including polio, tetanus, measles, HPV, and rotavirus.

That kind of global cooperation, especially between the US and China, hasn’t been in evidence during this pandemic. The US and China certainly ought to have cooperated on vaccinating the world against Covid-19, as they had collaborated previously on crises like the 2014 West African Ebola epidemic.

However, relations between the two have only deteriorated during the Covid-19 pandemic. On top of this, countries with strong vaccine manufacturing capacity — including the US — engaged in vaccine nationalism, prioritizing their own populations over the global community, and failed to properly fund and support Covax, the primary vehicle for ensuring vaccine equity for both high- income and low-income countries.

In the end, as Kenny told Vox, “no government did particularly well” when it came to collaborating to make sure the world was equitably vaccinated — “to everybody’s loss.”

This leaves us with dueling assessments of the global response to Covid-19 — astonishingly fast in the context of human history, but still wanting in the face of what we could have done. That we now know what we’re capable of, and what we need to work on when the next one rolls around, is one indisputable takeaway from humanity’s response to this pandemic.

A version of this story was initially published in the Future Perfect newsletter. Sign up here to subscribe!

  1. United States (1989), for example, the Court held that judges should be exceedingly reluctant to strike down an act of Congress giving a federal agency the power to regulate. And Chevron
  2. Natural Resources Defense Council (1984) held that courts should typically defer to federal agencies, regarding the scope of the agency’s authority to regulate, if the statute permitting the agency to issue binding rules is ambiguous.

    Thus, under Barrett’s distinction between formalist and pragmatic judges, both Mistretta and Chevron are formalistic decisions. Both impose “constraints on judicial discretion,” by requiring that judges defer to federal agencies.

    In NFIB and Alabama Association of Realtors, however, the Court walked away from this more restrained approach to judging — with Barrett joining the majority in both decisions. Both cases relied on the so-called “major questions doctrine,” a doctrine that was invented entirely by judges, and that has no basis in any statute or in the Constitution’s text.

    This doctrine places vague limits on federal agencies’ power to issue regulations that are likely to have a significant impact. “We expect Congress to speak clearly when authorizing an agency to exercise powers of ‘vast economic and political significance,’” the Court stated in both the NFIB and the Alabama Association of Realtors cases.

The problem with this major questions doctrine is, as federal appellate Judge Jane Stranch wrote in a lower court opinion upholding the Biden administration’s vaccination rules, “the doctrine itself is hardly a model of clarity, and its precise contours—specifically, what constitutes a question concerning deep economic and political significance—remain undefined.” The Court also hasn’t explained just how “clearly” Congress must “speak” if it wishes to delegate important powers to a federal agency.

The major questions doctrine, in other words, is an invitation to pragmatic judging. The major questions doctrine maximizes judicial discretion because it is so vague, and thus permits judges to invoke it whenever they disagree with a federal regulation and wish to strike it down. After all, if no one can say for sure “what constitutes a question concerning deep economic and political significance,” then the ultimate answer to this question will rest with Barrett’s court.

The same can be said about the nondelegation doctrine, a similarly vague constraint on federal agencies advanced by Barrett’s five Republican colleagues. (The Court’s most recent majority opinion discussing this doctrine, Little Sisters v. Pennsylvania, was decided a few months before Barrett joined the Court in 2020. So there is still a little uncertainty regarding Barrett’s views on nondelegation.)

The nondelegation doctrine would scrap the deferential approach that the Court advocated in Mistretta. In Gorsuch’s words, nondelegation calls upon judges to strike down federal laws permitting agencies to regulate, unless those laws were “‘sufficiently definite and precise to enable Congress, the courts, and the public to ascertain’ whether Congress’s guidance has been followed.”

Thus, like the major questions doctrine, the nondelegation doctrine is so vague that it maximizes the discretion of judges to restrict federal agencies. It is a fundamentally pragmatic doctrine under Barrett’s distinction between pragmatic and formalistic judges.

The Court needs to be more honest about what it’s actually doing

Opinions like Jackson, NFIB, and Alabama Association of Realtors are quite disingenuous about what the Court is actually up to in those decisions.

Gorsuch’s opinion in Jackson, for example, tries to present his Constitution-destroying approach as a simple application of a formalistic rule prohibiting federal courts from issuing court orders against state courts. “If it caught on and federal judges could enjoin state courts and clerks from entertaining disputes between private parties under this state law,” Gorsuch wrote, “what would stop federal judges from prohibiting state courts and clerks from hearing and docketing disputes between private parties under other state laws?”

Similarly, the Court often justifies doctrines like nondelegation and major questions by claiming that they are necessary to restore the framers’ vision for how power would be shared between Congress and the executive branch. But, as law professors Julian Davis Mortenson and Nicholas Bagley explain in an important paper, this justification is ahistorical. The first Congress — a Congress made up of many of the Constitution’s drafters — enacted several laws delegating sweeping authority to federal agencies.

I could list more examples of the Court disguising pragmatic legal decisions with a patina of formalistic rhetoric. In Brnovich v. Democratic National Committee (2021), for example, the Court fabricated a bunch of new limits on the Voting Rights Act that appear nowhere in the law’s text — including a strong presumption that voting restrictions that were in place in 1982 are lawful, or a similar presumption favoring state laws purporting to prevent voter fraud. As Justice Elena Kagan wrote in dissent, Brnovich “mostly inhabits a law-free zone.”

But that didn’t stop Justice Samuel Alito, who wrote Brnovich, from claiming that his opinion would “start with a careful consideration of the text” of the Voting Rights Act. Nor did Brnovich’s profoundly pragmatic approach stop Barrett from joining Alito’s opinion.

It would be one thing if this Supreme Court were honest about what it is doing. It could write explicitly pragmatic opinions — which emphasize the justices’ desire to reach results that a majority of them deem to be fair, and which admit openly that these results cannot be justified by any provision of the Constitution or any federal statute.

But the Court is not being honest about what it is doing. Rather than admitting that they are engaged in an unfettered, pragmatic approach to judging, the conservative justices continue to wrap themselves in the rhetoric of judicial formalism. Barrett’s Notre Dame speech is only the most recent example.

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