In its quest to blunt the effects of the partial government shutdown, the Trump administration is using broad legal interpretations to continue providing certain services.
Critics argue that the administration is stretching — and possibly breaking — the law to help bolster President Trump’s position in his fight with Democrats over funding for a border wall.
Even with the creative use of loopholes and existing funds, though, the actions the administration are taking will be hard to sustain if the shutdown continues to drag on.
“As painless as possible”
When funding lapses, as happened when lawmakers and the president could not agree on a spending plan before Dec. 22, the federal government must adhere to the Antideficiency Act. That law requires agencies to stop all operations, except under certain circumstances.
In the current shutdown, about 25 percent of the government is without funding, including the U.S. Department of Agriculture, the Justice Department and the Internal Revenue Service.
Despite the shutdown, the administration has announced a number programs will continue to function at least for a while, including food stamp benefits and distributing tax refunds.
“Our mission from the president has been to make this shutdown as painless as possible, consistent with the law,” said Russell Vought, deputy director of the Office of Management and Budget, at a Jan. 7 press briefing.
The rationale for continuing operations varies according to the program.
The State Department said Thursday it would be bringing furloughed employees back to work because it had located enough funds to cover one additional pay period.
In the case of food stamps, formally known as USDA’s Supplemental Nutrition Assistance Program (SNAP), the administration was able to take advantage of language in the short-term spending bill that expired in December. That bill allowed appropriations for the program up to 30 days after it ended.
So, USDA is working to issue food stamp benefits for February early to meet that deadline. After that, it’s unclear what happens if the shutdown goes on for weeks or months. The department has about $3 billion in contingency funds that it can use to support the program, but the amount of benefits for February alone were about $4.8 billion.
The IRS is also calling 46,000 furloughed employees back to work without pay to help process tax refunds for tax filing season, which begins Jan. 28 for individuals.
The legal argument
The Antideficiency Act allows the government to continue operations without funding in order to protect human life and government property. This is the provision that keeps FBI and Secret Service agents working during a shutdown.
But it also provides an exception for activities “otherwise authorized by law.” This is the provision the IRS is using to justify processing tax refunds during the shutdown.
This exception is supposed to apply to programs or benefits that are funded outside of the annual appropriations process that represent a government obligation that must be fulfilled.
“Essentially, the government said that there’s an indefinite appropriation to refund [overpaid taxes], so if you overpay your taxes you’re entitled to get the money back. People have to go to work to make sure that people get those refunds,” said Gordon Gray, director of fiscal policy at American Action Forum, a center-right economic think tank.
Gray said he was skeptical of the administration’s reasoning on this point, but after reading the relevant statutes, he thinks they may be correct that they have an obligation to process the refunds or they could have faced lawsuits.
Not everyone agrees. Sam Berger, a senior adviser at the liberal-leaning Center for American Progress, says the move by the IRS is not in line with the law. He says people have a right to get their tax refunds, but there is no set deadline.
“There’s no understanding from Congress that these tax returns have to go out at a certain time and certainly not that they have to go out during a funding lapse,” Berger said.
Berger was a part of the senior team at the White House Office of Management and Budget during the 2013 shutdown during the Obama administration.
He argues President Trump has been more worried about politics than about adhering to the law.
“It’s a concern with reducing the political harm to himself. So rather than focus on legal requirements or programmatic concerns, he’s largely focused on reducing bad press and keeping important constituents happy,” Berger said.
NPR obtained a letter sent by the Treasury Department to Congress explaining the administration’s decision on the tax refunds.
“The law governing payment of tax refunds supports a clear, necessary implication that Congress intended such payments to continue on a permanent basis, notwithstanding a lapse in appropriations,” the Treasury Department wrote.
Outside of the IRS, the Interior Department is also bringing back furloughed workers to help with planning for an offshore lease sale for oil and gas development in the Gulf of Mexico. The department says it will use leftover funds to support this action.
Gray says while budget laws allow some leeway for moving funds around, there’s only so much that can be done before the money runs out.
“They are sort of looking under the seat cushions — when appropriations acts are passed, they do tend to have some built-in flexibility,” Gray said. “There is reprogramming authority for the agencies, but it’s limited.”
Under the Antideficiency Act, it is illegal for federal employees to spend money in excess of what has been appropriated. Violations are subject to criminal penalties, although no one has been prosecuted under this law.
Congress and agency inspectors general can provide oversight for compliance with the act, and disputes over enforcement can be hashed out in court. Some federal labor unions have filed lawsuits challenging the government’s authority to force people to work without pay.
Beyond the legal constraints, there are likely practical limits to the amount of time and effort federal workers will devote to jobs when they are not being paid.
“When a shutdown goes from the medium to long term, we’ve never seen that. So my expectation is when we start going from short [term] to medium [term] is basically when folks stop showing up for work,” Gray said. “That’s when folks start quitting, when the disruption in services becomes more permanent and more lasting.”