The Shaky Legal Basis for Government Shutdowns
National parks closed; memorials in Washington off-limits to visitors — these have become emblematic of federal government shutdowns. Without appropriations, federal employees can’t work, right? Wrong.
In fact, such visible inconveniences are a cudgel that the executive branch has used against Congress over the last four decades — a technique of relatively recent origin. With government shutdowns once again making headlines, it’s worth asking: How did we get here? Why have government shutdowns become a recurring feature of our national politics?
As I discuss in a recent paper, the Anti-Deficiency Act’s (ADA) prohibition on personal services is virtually never enforced, except in one special case: federal employees who work voluntarily during a government “shutdown.” This relatively new development can be traced back to a legal opinion from the early 1980s by President Carter’s attorney general, Benjamin R. Civiletti, and a 1995 memorandum opinion written by Assistant Attorney General Walter Dellinger for the director of the Office of Management and Budget (OMB) during the Clinton years. These opinions effectively transformed the ADA from a corruption-control law to a weapon that could be used by the executive branch to extort cooperation from Congress.
The Civiletti and Dellinger opinions performed this trick by ignoring the intent of the original prohibition. As written — and as the legislative history makes clear — the act plainly applied only to “voluntary” or “personal services” obtained from private parties. In fact, in an opinion issued on March 3, 1980, and cited by Civiletti, the comptroller general noted that in passing the various provisions of the ADA, Congress did not intend federal agencies to be closed during periods of lapsed appropriation. Civiletti disagreed, citing the following section of the law:
An officer or employee of the United States Government or of the District of Columbia government may not … involve either government in a contract or obligation for the payment of money before an appropriation is made unless authorized by law.
Civiletti — whom Time magazine once dubbed “The Man Who Invented the Government Shutdown” — concluded that any ongoing operations of federal agencies were unlawful. It follows, then, that in the absence of appropriations, the agency must shut down.
But the prohibition on contracts or obligations provides an exception for such expenses in absence of appropriation if “authorized by law.” Every office of the federal government is, of course, expressly “authorized by law.” Federal employees are not hired by contract. Therefore, these limitations do not apply to the continuing employment of federal staff.
Furthermore, in these two opinions Civiletti went even further, applying the criminal penalties for accepting “voluntary services” to any employee who ignored the shutdown and continued to work. In doing so he reversed the intent of the relevant ADA provisions, essentially rewriting the law in a manner Congress never envisioned. Penalties enacted to punish corruption were levied against federal staff who were doing their jobs.
As recently as 2013, this resulted in federal employees’ being reported to the Government Accountability Office for “accepting” voluntary services from themselves by working during the shutdown. This absurd situation was never anticipated or intended by Congress.
Furthermore, not all federal employees are paid. For example, special government employees serving on federal advisory committees have all the obligations of federal staff but usually receive no salary. In these cases, lack of payment alone does not make government work “voluntary.”
To sum up, the ADA is silent on the topic of government shutdowns; the prohibition on federal employees doing their jobs was created by the Civiletti opinions and the Dellinger memo.
For the executive branch, however, the advantage of these interpretations is clear: By finding law where none exists and forcing a government “shutdown,” the executive branch has turned an anticorruption statute into a weapon to use against Congress in the face of a frustrated public. Members of Congress have also found in the “shutdown” a variety of political opportunities.
The shutdown is pure politics masquerading as law. Isn’t it time for Congress to stop deferring to Jimmy Carter’s attorney general?
Robert J. Hanrahan, Jr., is a federal employee of the National Nuclear Security Administration (NNSA) and author of the report “Bureaucratic Dark Energy.” This article reflects the opinions of the author, not the NNSA or DOE.
