If
rogue Republicans do not relent over the budget impasse by October 1,
whatever pandemonium happens next will largely be governed by a federal
statute you likely have never heard of:
the Antideficiency Act.
You can call it the "anti-deadbeat" law -- a collection of statutory
and administrative provisions, really -- that forbid federal officials
from entering into financial obligations for which they do not have
funding, like paying the salaries of their employees or buying the
things they need to run the government.
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:
An officer or employee of the
United States Government or of the District of Columbia government may
not accept voluntary services for either government or employ personal
services exceeding that authorized by law except for emergencies
involving the safety of human life or the protection of property ...
As
used in this section, the term "emergencies involving the safety of
human life or the protection of property" 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.
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):
If
Congress fails to enact a CR by October 1, 2013, most federal entities
will have to implement shut-down plans effective immediately. The
Judiciary, however, will not shut down immediately. We will continue
operations utilizing fees and no-year appropriations for an estimated 10
business days (through approximately October 15, 2013).
During
these first 10 business days of a lapse in appropriations, the
Judiciary will use available fee and no-year balances to pay judges,
court employees and FDO employees, and to maintain court and federal
defender operations. Courts and FDOs will continue to operate, but
funding should be conserved as much as possible by delaying or deferring
expenses not critical to the performance of your Constitutional
responsibilities.
All Judiciary and FDO employees should continue reporting to work and they will be in full-pay status during this period. After
the 10-day period, if there is still no appropriation, the Judiciary
will operate under terms of the Anti-Deficiency Act, which allows
"essential work" to continue during a lapse in appropriations. Among the
definitions of "essential work" are powers exercised under the
Constitution, which include activities to support the exercise of
Article III judicial powers, specifically the resolution of cases.
Each
court and FDO will determine the court staff, probation and pretrial
services officers and FDO staff necessary to support the exercise of
Article III judicial powers. Staff performing essential functions will
report to work in a non-pay status. Other staff will be furloughed.
Staff
who are furloughed cannot work voluntarily or be required to work.
Staff performing essential functions and working in a non-pay status
should expect to be paid once appropriations are enacted; Congress will
have to take affirmative action to authorize pay for staff who are
furloughed.
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 Professor
Timothy Westmoreland, who has a background in congressional politics, wrote via email:
All
civics students learn that the Congress has "the power of the purse."
The Constitution gives the Congress the decision about whether to spend
money or not. This shows up in Article I of the Constitution, where it
says, "No Money shall be drawn from the Treasury, but in Consequence of
Appropriations made by Law." The Executive Branch cannot make a decision
on its own to spend money -- and that's clearly what the Framers
wanted.
That
seems fairly straightforward, but almost from the beginning of the
Nation, the Executive Branch tried different ways to dodge that
fundamental restriction.I've seen references to congressional complaints
about this all the way back to John Calhoun in 1816 and Henry Clay in
1819.
Not incidentally, who were these congressional titans complaining
about? Presidents James Madison and James Monroe. Westmoreland
continues:
The
most obvious tactic was for Executive Branch officials to make contracts
without already having the money from the Congress. If that happened,
the Congress was backed into a corner: a commitment by the U.S. had
already been made by the Executive, so the Congress felt it had to make
the funds available because of some sense of a moral or good-faith
obligation. This was called creating a "coercive deficiency." In the
early days, most of this appears to have been done by the military, but
that may not be surprising since so much of the early Federal spending
was for the military.
To
take back its control of the spending power, the Congress passed laws
just after the Civil War that made such actions illegal. The main one is
the Antideficiency Act, which prohibits Executive Branch officials from
obligating or spending money before it is given to them by the
Congress. It also prohibits these officials from taking money given to
them for one purpose and using it for another. There are civil and
criminal penalties for violating the law, as well as extensive auditing
and reporting requirements.
Westmoreland continues:
A
version of this 19th Century statute is still the law. Agencies
themselves, Inspectors General, and the Government Accountability Office
(GAO) all look into potential violations, and they are found every
year. Some of them are simple errors. Some are disputes over bookkeeping
rules or over interpreting legislation. Some are relatively small.
Others are in the hundreds of millions. In Fiscal 2012, GAO reported 20
violations -- ranging from a $50,000 violation in the National Guard to
an $800 million one by the SEC. Civil servants can be disciplined or
fired for violating the law. They can be criminally prosecuted for a
willful violation, although I don't think anyone has ever been
convicted.
The
Act becomes especially significant when the Congress fails to provide
appropriations. At that point, government employees are legally
prohibited from spending money, because they haven't been given any
money to spend. So an agency head cannot authorize a government employee
to come to work; that would be incurring a government obligation
without having an appropriation. The law also prohibits accepting
voluntary services for the government, so the agency head can't even
allow people to volunteer to do their jobs.
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:
There
has been a lot of legal interpretation (including during the Reagan and
Clinton Administrations) of what this means. Overall, it has been
interpreted narrowly but not rigidly. But the threat to life or property
has to be "imminent." Air-traffic controllers and meat inspectors can
generally keep working. People writing checks or doing maintenance
generally cannot.
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:
There
is also another group of activities that are not really an exception to
the Act because they actually meet the terms of the Act: programs that
already have received an appropriation from the Congress. Most
government activities are funded by the Congress for just one year at a
time. But some -- like Social Security -- have permanent funding in
their statutes. Others may have multi-year funding that will not expire
on September 30. Those programs won't shut down, although some of the
staff who make the programs work more easily or more efficiently might
have to stay home because their salaries are part of the annual spending
bill.
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."
