The beginning of a
partial government shutdown of uncertain duration seems an appropriate time to
sort through the mechanics of shutdowns as well as to evaluate some of the
claims about appropriations law that have been appearing in the media for the
past week or so.
The Scope of the
Shutdown
First, it is
important to note that this shutdown affects only part of the federal
government, albeit a large part. Before
the election, Congress passed, and the President signed, five of the seven
annual appropriations bills required to fund the government. These included the huge bills for the Defense
Department and for the Departments of Labor, Health and Human Services, and
Education as well as those for Military Construction, Veterans’ Affairs, energy
and water projects, and the legislative branch.
In addition, some
government activities operate under multi-year or permanent appropriations. Old-Age, Survivors, and Disability Insurance,
better known as Social Security, has its own permanent appropriation as do many
State Department functions involving passports.
Section 110 of the continuing
appropriations
resolutions that have funded the government since October 1 provides funding
for other entitlement programs to continue through January. Moreover, where a provision of federal law
gives someone a legal right to a payment – as, for example, the National School
Lunch Act does
for certain child care providers – any eligible entity that is not paid due to
a lapse in appropriations can sue in the Court of Federal Claims and receive a
judgment that would be paid
out of a fund that has a permanent, uncapped appropriation. That process would be extremely disruptive,
but payments would be assured.
As a result, the
principal effect of the partial shutdown is on the operation of government
programs in the affected agencies that are funded through annual
appropriations. This famously includes
national parks but more generally covers many routine operations of the Departments
of Agriculture, Commerce, Homeland Security, Housing and Urban Development, Interior,
Justice, State, Transportation, and Treasury as well as agencies such NASA and
the Legal Services Corporation. The
shutdown easily could
have been considerably smaller: four of
the seven remaining appropriations bills were essentially finished several
weeks ago, but with the White House sending mixed signals about its appetite
for a shutdown congressional Republicans declined to pass them. Since the summer, however, it has been clear
that the appropriations bill for Commerce, Justice, Science and related
agencies would be held to the end, ensuring that any government shutdown would
affect funds for Special Counsel Robert Mueller’s investigation.
“Essential” and “Non-essential”
Government Employees
Much has been
written about the distinction between “essential” and “non-essential”
employees. This springs from the
interaction between two sections of the Anti-Deficiency Act. The Act is the most important statute
Congress has passed to enforce the Appropriations Clause of the
Constitution. Officials violating the
Act’s core prohibitions face
up to two years in prison. Federal
employees who take great comfort in the sweeping immunities the courts have
granted them from personal liability nonetheless react very skittishly to potential
exposure under the Anti-Deficiency Act.
The Act’s primary
section prohibits “[a]n officer or employee of the United States Government”
from “mak[ing] or authoriz[ing] an expenditure or obligation exceeding an
amount available in an appropriation or fund for the expenditure or obligation
[or] involve[ing the] government in a contract or obligation for the payment of
money before an appropriation is made unless authorized by law”.
One
of several sections that seeks to prevent evasion of the main prohibition
dictates that “[a]n officer or employee of the United States Government … may
not accept voluntary services for [the] government or employ personal services
exceeding that authorized by law except for emergencies involving the safety of
human life or the protection of property.”
Thus, no official may obligate the government to pay for any federal
workers during a lapse in appropriations, but those federal employees essential
to “the safety of human life or the protection of property” may volunteer. In practice, these employees are effectively
compelled to “volunteer”.
Mindful of
officials’ tendency to stretch definitions to avoid difficult choices, this
section goes on to warn that “the term ‘emergencies involving the safety of
human life or the protection of property’ does not include ongoing, regular
functions of government the suspension of which would not imminently threaten
the safety of human life or the protection of property.” Although Administration officials may feel
tempted to assuage public ire by keeping popular sites and functions open, in
doing so they expose themselves to prosecution under the Anti-Deficiency
Act. Anticipating what functions will
prove essential to protect human life or property can be difficult: if the current unease in the markets turns
into something worse, we may rue having furloughed economists at the Treasury
Department.
Historically, once
a shutdown ends Congress has appropriated funds to pay the “volunteers” for
their services as well as to make up the lost paychecks of furloughed federal
employees. This Administration has been
unfriendly to federal workers in many respects, but with many of those affected
at Homeland Security and other agencies being disproportionately aligned with
the President’s agenda, it is difficult to believe that he will block payments
to them. Far less fortunate are
government contractors, who typically are not made whole for money they lose
during shutdowns.
Shifting Money to the
Wall from Other Accounts
For a time, it
appeared that a shutdown might be averted because the President believed he
could put together the money for the border wall from other appropriations
accounts. Senator Schumer insisted that
that, too, would require congressional approval, which would not be
forthcoming. The President soured on the
idea and decided on a shutdown after all.
The reality is
somewhere in between President Trump’s initial optimism and Senator Schumer’s
adamant denial. In truth,
administrations have been scrounging money for unfunded projects from other
accounts for a very long time.
One prominent example
was the Obama Administration’s implementation of the Affordable Care Act after
Republicans captured the House in the 2010 election. Although the Act contained its own
appropriations for some aspects of implementation, others depended on annual appropriations
that House Republicans were determined not to provide. President Obama could not sit by and watch
his signature legislation be strangled for lack of appropriations, and House
Republicans were leery of taking the blame for doing so. A tacit compromise emerged under which
appropriations acts would provide no money explicitly for the ACA but everyone
involved knew that the Administration would shift money from other accounts to
fund the bare minimum needed to implement the parts of the ACA that lacked
permanent appropriations. The amounts the
appropriators allowed to be transferred were far less than what was needed for
robust implementation, but it was enough that the ever-cautious Obama Administration
elected not to take the conflict public.
Indeed, something
vaguely similar has already been happening with funding for the border
wall. Congressional Democrats, and some
Republicans, have refused to provide any funds explicitly for building the
wall. But they have appropriated some money
for loosely defined border security efforts.
The Administration can claim that it is diverting these funds to make
preparations for building the wall while Democrats can insist that the funds
carry provisos against actual wall construction.
How much latitude
an administration has to shift funds from one activity to another depends on the
language of the appropriations act providing the money, the permanent statute authorizing
the activity in question, and sometimes the law setting out the powers of the
officials in question. Some statutes
explicitly authorize
transfers of funds. For example, the
Gramm-Rudman-Hollings Act that provides for some budget sequestrations allows
the president to shift funds within Pentagon accounts for various purposes,
including the protection
of military salary accounts, by cutting other functions more deeply. Other statutes define allowable activities so
broadly that the Administration has considerable flexibility without formally
shifting funds at all.
On the other hand,
when Congress becomes skeptical of flexibility,
often after perceived administration abuses, it has sharply limited
discretion to reprogram appropriated funds.
For example, after the disastrous response to Hurricane Katrina showed
that the Federal Emergency Management Administration (FEMA) had been stripped
bare to serve other priorities, Congress imposed strict limits
of diversion of FEMA’s resources. Congress
commonly prohibits
transfers to activities for which it has denied funding or to activities it has
designated as being of lower priority. Identifying
all restrictions on reprogramming appropriated funds is exceedingly difficult
for anyone not well-versed in a particular program. Even appropriations acts from decades earlier
may restrict
how all subsequent appropriations may be spent.
Here again, the
Anti-Deficiency Act plays a key role. For
example,
“[a]n agency in existence for more than one year may not use amounts otherwise
available for obligation to pay its expenses without a specific appropriation
or specific authorization by law.” Quite
apart from any policy preferences they may have concerning the border wall,
federal employees who participate in spending federal funds without clear authority
from an appropriation subject themselves to criminal penalties. To be sure, this Administration is unlikely
to bring charges against any officials carrying out the President’s orders, and
the President could try to pardon those involved. Most civil servants, however, strongly prefer
to avoid committing serious crimes even if they are likely to escape
punishment. They may balk at dubious
legal theories in this context far more than they do when contemplating rule-making
or other executive acts.
It will be interesting to see if President Trump adds the
Anti-Deficiency Act to his list of legal difficulties. One
cannot help but remember other figures who avoided many high-profile legal
perils only to succumb to
charges for similarly prosaic violations.