Shutdown, You’d Better Take Care

David Super

     Appropriations for much of the federal government just lapses.  This begins a partial shutdown of the federal government.  The general news media is extensively covering this story’s broad outlines.  This post does not seek to retell that story but rather comments on five issues that media accounts are missing or confusing. 

     First, the cause of the shutdown is not as clear as it might be.  Democrats decided weeks ago that they would demand extension of expiring health insurance premium tax credits as a condition for any continuing resolution lasting more than a few days.  This makes sense:  even though the credits do not formally expire until the end of the year, open enrollment is fast approaching.  Millions of people may drop health coverage if the prices they see reflect the absence of the enhanced credits.  The affordability of health coverage clearly resonates with the electorate, and this issue is already splitting the Republican caucus. 

     On the other hand, Democrats have a more fundamental problem:  no “clean” continuing resolution is possible because the Administration has demonstrated that it will not follow appropriations legislation.  Democrats provided crucial votes for a continuing resolution in March, with the continuation of programs they favored their main motivation.  The Administration then ignored many of those appropriations while congressional Republicans moved a partisan rescission of billions of dollars for foreign aid and public broadcasting.

     Last Friday, the first impoundment case to reach the Supreme Court.  The Court stayed a district court’s injunction requiring the Administration to honor the admirably clear appropriations for a variety of foreign aid programs.  The Court did not say that the Administration was likely to prevail on the merits – as it has in many other cases decided on its Shadow Docket – and indeed went out of its way to caution against reading its action as signaling a decision on the merits.  Nonetheless, it granted a stay on a balancing of the equities.  Many of the grantees have already folded from the lack of the withheld funds, and more likely will be gone before the Court can decide the case on the merits.  Thus, as a practical matter, the Trump Administration is free to ignore appropriations acts, including a “clean continuing resolution”, for the foreseeable future.

     It is hard to see how Democrats can agree to a continuing resolution for any length of time that does not contain language firmly barring the (already preposterous) legal theories the Administration has offered to justify its impoundments.  But apparently they will not be emphasizing the Administration’s blatant disregard of the previous “clean continuing resolution” for which the Democrats voted. 

     Second, this shutdown may be harder than most to end precisely because the Administration has obliterated its ability to make a credible deal.  The path to ending past impasses was often greased with quiet promises to fund this or that project dear to powerful members of the minority party.  But if the Trump Administration will not honor statutory language, it certainly will not be bound by quite understandings or the ubiquitous appropriations “report language”.  This Administration also has shown far less sensitivity to public opinion than its predecessors, including Trump 1.0.  Congressional Republicans worry about offending swing voters, but they worry much more about offending the President.

     Democratic leaders, in turn, have remarkably little flexibility.  Much of their base is furious, having accepted a not-entirely-justified perception that Democrats are not fighting hard enough.  Fear of being skewered on Bluesky has profoundly shaped Democratic leaders’ choices, often in ways that actually undercut the progressive agenda.  After taking the difficult choice to provide the key votes for the continuing resolution in March, Democratic leaders were humiliated when the Administration impounded funds for many of the programs they voted to preserve.  These leaders will have difficulty backing down again even if public opinion turns decisively against them.  And because progressives have gotten into the habit of believing cherry-picked polling results circulated on social media, they may not give leadership the room to back down even if the shutdown is clearly losing the public. 

     Third, the only reason the Democrats have any say in any of this is because of the filibuster.  Alas, terrible cases of laryngitis seem to have afflicted the voices that caustically denounced anyone arguing for preserving the filibuster to guard against disaster. 

     Fourth, Office of Management and Budget Director Russell Vought’s threats of mass layoffs in the event of a partial government shutdown is a transparent fake – yet it seems to be drawing in a great many credulous commentators.  A partial government shutdown does not grant OMB any special powers.  In fact, it actually may temporarily make layoffs even more unlawful. 

     In a lapse of general appropriations, the Appropriations Clause of the U.S. Constitution and the Anti-Deficiency Act preclude the federal government from paying employees whose salaries are not covered by some specific appropriation still in force.  The Act also prohibits government officials from accepting unpaid service not explicitly authorized by law “except for emergencies involving the safety of human life or the protection of property”.  The Act clarifies that this emergency exception “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.” 

     In practice, this means that most federal employees are furloughed and locked out of their jobs.  A few unlucky “essential employees” are required to report but not paid.  This arrangement has worked through numerous appropriations lapses without any widespread problems.  Therefore, no layoffs – nothing beyond these temporary furloughs – are needed to honor the Anti-Deficiency Act.  In fact, because laying off government employees permanently is not an “emergency involving the safety of human life or the protection of property”, any Administration official performing this function during an appropriations lapse would be violating the Act.  Violations of the Anti-Deficiency Act carry criminal penalties, although we should not hold our breath waiting for Attorney General Bondi to bring indictments. 

     The layoffs that Director Vought threatens also violate civil service law in various ways, most obviously by providing less than the required sixty days’ notice.  The Administration has wantonly disregarded civil service law since January, but public employees’ unions’ suit was rejected on the grounds that any challenges must begin as grievances before federal personnel agencies.  That will often be impossible, however, because President Trump unlawfully fired the only Democratic member of the Merit Systems Protection Board, denying it a quorum to act on complaints.     

     The Administration has demonstrated its desire to lay off federal employees en masse since it took office:  this has absolutely nothing to do with a lapse in appropriations.  The only reason any federal employee is still working is that the Administration concluded that the risk of political embarrassment from abandoning that function outweighed the marginal appeal of sacking another civil servant. 

     Nothing about a government shutdown changes that calculus.  With or without a government shutdown, the Administration will lay off anyone it thinks it can get away with dumping; with or without a government shutdown, the Administration will not lay off anyone whose departure it fears will blow back on it.  Director Vought’s threats are naked attempts at intimidation that should not affect anyone’s assessment of a government shutdown, whatever they think about federal workers. 

     Finally, as someone who spends a fair amount of time talking with reporters about current events, I have noticed that, as a group, reporters are getting less and less interested in whether this or that Administration action is legal.  Law has limited value as predictor of what this Administration will do.  And with the Supreme Court so frequently overriding lower courts’ injunctions against the Administration’s lawlessness in minimally reasoned Shadow Docket orders, even many of the brightest and most capable reporters seem to feel little need to sort through statutes and caselaw.  I do not share their skepticism, but persuading them that law matters is getting more and more difficult.  That by itself is a fundamental change in our constitutional order. 

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