Sorry We’re Closed: The Law Behind the Government Shutdown

By: Allison Milano

At this point most Americans are well aware of the government shutdown; whether they saw it on the news, are a furloughed worker or were refused entry to a national park. The reason for the shutdown begins with the Constitution that states, “no money shall be draw from the Treasury but in consequence of appropriations made by law.”[1] In 1870, Congress passed the “Anti-Deficiency Act”, an act that prevents the government from spending money in excess of the amount apportioned.[2]  This, in affect, means that government workers are unable to go to work without a budget in place, because it would “make or authorize an expenditure or obligation exceeding the amount available in an apportion”.[3] Since there is no budget, the obligation to pay the employee even one dollar is more than the amount available.  However, exceptions are made under the act for “emergencies involving the safety of human life or the protection of property.”[4]

Up until around 1980, federal agencies would stay open during the funding gap but in 1980 and 1981 the U.S. Attorney General issued a series of opinions that more strictly construed the Act.[5]  According to his opinions, in order to be compliant with the Act agency’s had to cease operation until a budget was passed. [6]

This week the House of Representatives passed a bill, which would provide back pay to government workers once a budget is in place.[7]  If federal employees are going to be paid anyway, why not let them go to work?  The Act places a limitation on voluntary services, whereby an officer or employee of the U.S. government may not accept voluntary services.[8]  But is the service really “voluntary” within the meaning of the statute, if they are likely going to get full back pay anyway?  Some government leaders are calling the back pay a “taxpayer subsidized vacation.”[9]  However, government employees are not in the clear yet, after the House approves the Bill it goes to the Senate for approval and then must be signed by the President.  Historically, bills such as the one at issue here have passed, and federal employees have been paid retroactively.[10]  If history repeats itself, as it tends to do, the employees will receive there back pay as soon as the government reopens.


[1] U.S. Const. art. I, § 9, cl. 7.

[2] 31 U.S.C. § 1341 (1996).

[3] 31 U.S.C. § 1341(a)(1)(A) (1996).

[4] 31 U.S.C. §1342 (1996).

[5] Funding Gaps Jeopardize Federal Gov’t Operations 43 Op. Att’y Gen. 224 (1981) available at http://www.gao.gov/assets/140/132616.pdf.

[6] Funding Gaps Jeopardize Federal Gov’t Operations 43 Op. Att’y Gen. 224 (1981) available at http://www.gao.gov/assets/140/132616.pdf.

[7] H.R.J. Res. 89, 113th Cong. (2013) available at http://docs.house.gov/billsthisweek/20131007/BILLS-113-HJRES89.pdf.

[8] 31 USC § 1342 (1996).

[9] Abby D. Phillip, Why One Congressman Is Telling His Furloughed Staff to Get Back to Work, ABC News (Oct. 7, 2013), http://abcnews.go.com/blogs/politics/2013/10/why-one-congressman-is-forcing-his-furloughed-staff-to-get-back-to-work/

[10] Federal Employee Retroactive Pay Fairness Act, Pub. L. No. 104-56, § 124, 109 Stat. 553 (1995); Pub. L. No. 104-92 § 301, 110 Stat. 19 (1996).

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