This Weird Law Dictates How Government Shutdowns Work
It's also the law that wisely permits certain "essential" government functions -- like the military and the courts, for example -- to keep operating even in the absence of authorized legislative funding.
Predictably, there aren't many legal experts who have built careers around the Antideficiency Act, but I managed to corral a few. The most important messages they offer are these: 1) It's not just present federal work that's affected by the shutdown, it's future work, too; and 2) shutting down the federal government is terribly wasteful and expensive because of the re-start costs involved.
That's the point made by the acclaimed dean of Antideficiency Act scholars, University of Baltimore Law Professor Charles Tiefer ("For obscure details," he told me, "you've come to the right guy."). It's not just that many federal operations will shut down next week, Tiefer said, it's that "all kinds of planning and preparation for federal activity in the months and weeks to come" will become "increasingly neglected and disjointed if the showdown lasts more than a couple of days." Here's a key passage from the statute:
Preparing for the Shutdown
Here is an example of what is happening right now within federal agencies and bureaus. Earlier this week, U.S. District Judge John Bates, a George W. Bush appointee who now is director of the Administrative Office of the U.S. Courts, sent an open letter to all departments within the federal judiciary. The letter set forth in detail the protocol for what will (and will not) happen in our nation's courts if as expected the money runs out next week. Bates wrote (emphasis in original):
The details will be different in each instance, but you can be sure that all over the federal government this week these sorts of letters were being written and sent in preparation for the showdown. Here is the current OMB memo that outlines protocols. Here is a April 2011 White House memo that also adds context. Some workers will simply be sent home. Others will have to work with only the promise of pay. And Congress will have the obligation, moral if not political, to clean up whatever mess it and the White House create in the next few days and weeks.
The History of the Act
"Those who disburse the money are like a saucy boy who knows his grandfather will gratify him, and over-turns the sum allowed him at pleasure," Rep. John Randolph of Virginia said in 1806. The "saucy boy" here was the executive branch, the grandfather Congress. Georgetown University Law ProfessorTimothy Westmoreland, who has a background in congressional politics, wrote via email:
Not incidentally, who were these congressional titans complaining about? Presidents James Madison and James Monroe. Westmoreland continues:
Westmoreland continues:
To Whom Does the Act Apply?
The act "definitely applies to government employees and officials of the core executive and independent agencies," Harvard Law Professor Howell E. Jackson, a budget and regulatory expert, told me. This means the vast majority of federal workers will be told to go home next week in the absence of a budget deal. Those who get to stay will come from two groups -- one in which federal workers have been explicitly exempted and one in which workers have been deemed to be "essential" through analysis. "It's complicated," Jackson said, "where the lines are drawn and sources of legal authority are not precise."
Perhaps the most interesting example of a "specific exemption," Jackson says, is the Food and Forage Act of 1861 -- near the start of the Civil War. As the title suggests, that law permitted soldiers to graze their horses and take whatever other necessities were required to live on horseback. It's a law that was invoked in a decidedly non-horsey sense during the Vietnam War, again during Operation Desert Shield in Iraq in 1990, and, for a brief time, immediately following the terror attacks of September 11, 2001.
"Federal employees can accept volunteers or go beyond their funding in cases of emergency involving the safety of human life or the protection of property," Westmoreland says. So federal firefighters and law enforcement officials clearly are exempt, Tiefer adds, as are judges presiding over criminal (but not necessarily civil) cases. Moreover, it's the OMB, with help from the Justice Department, that makes the call on who is essential and who is not, and each federal department, as we see above in the judicial example, has formulated its shutdown protocols. Westmoreland writes:
Worried about that federal payment that may be coming to you? You may be right to be concerned. Most payments will come, but others won't. As Jackson notes, new Social Security or Medicare checks or applications may not be processed as quickly (or not at all) until funding is restored. But Westmoreland says funding for Social Security doesn't go away on October 1:
So, barring a degree of political bipartisanship that seems increasingly unlikely, a dusty law designed in the 1880s to stop excessive federal spending will be employed next week to guide the government in a dispute over, well, excessive federal spending.
"The irony is that it always costs money to restart them and they typically get their back pay for the days they don't work, the government employees, and they have to catch up on the work that's not done while they are on these involuntary furloughs," Jackson said."So it's a very expensive way to play politics over the fiscal crisis."
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