As the Oct. 1 funding deadline approaches without a spending agreement, the likelihood of a federal government shutdown is increasing. The impasse in Congress centers on disagreements between Republicans, who are seeking a clean funding bill, and Democrats, who want to extend Affordable Care Act subsidies as part of any deal.
President Donald Trump has warned that significant changes could be made if the government runs out of money. “We can do things during the shutdown that are irreversible, that are bad for them and irreversible by them, like cutting vast numbers of people out, cutting things that they like, cutting programs that they like,” Trump said on Sept. 30, according to Reuters.
Legal experts note that while the president holds considerable authority over the federal workforce during a shutdown, this power is limited to temporary measures. Matthew Lawrence, a professor at Emory University School of Law, told McClatchy News: “the president has broad latitude” to restructure the federal workforce if a shutdown occurs.
Sam Berger from the Center on Budget and Policy Priorities explained: “During a shutdown, all government programs and activities without funding stop, except for limited exceptions. The Executive Branch has some discretion in how it interprets the scope of those exceptions.”
The Antideficiency Act prohibits agencies from spending funds not appropriated by Congress except in emergencies. Under this law, presidents have authority to decide which employees are essential and must remain at work and which are non-essential and subject to furloughs.
Josh Sewell from Taxpayers for Common Sense noted that during previous shutdowns, the White House Office of Management and Budget (OMB) published lists of essential employees. “The gist of this is that OMB is responsible for approving each agency’s contingency plan,” Sewell said.
Lawrence added: “The president can push the boundaries of what’s essential in order to permit more of the government to operate in a shutdown. Or the president can be stingy and not allow programs to operate.”
Political considerations often influence these decisions. Lawrence stated: “Generally speaking, if presidents think the other party is going to be blamed then they will potentially ramp up the pain by determining very narrowly exceptions to the Antideficiency Act.”
He also pointed out that court challenges against furloughs are possible but have been rare due to previous shutdowns being short-lived.
The Trump administration has suggested it might go further than past administrations by considering permanent reductions in staff during a shutdown. An OMB memo obtained by Politico indicated plans for long-term cuts in federal employment during such an event.
However, legal experts emphasize these changes would only be temporary unless other legal processes are followed. Lawrence stated: “The laws regulating shutdowns do not give any power to the president to do broad restructuring that will last past the shutdown.” Sewell added: “A reduction in force (RIF) is allowed when an agency lacks funding, is decommissioned by Congress, or there is a legal restructuring… Any long term changes would need to rely on other statutory authorities, not the temporary lapse in funding.”
