I previously explained how U.S. Government funding will likely expire at 11:59 p.m. on Thursday, December 10, and not 11:59 p.m. on Friday, December 11, as Congress, the White House, and most commentators believe. With Congress and the President disagreeing on spending provisions such as defunding Planned Parenthood, the Affordable Care Act, and allowing Syrian refugees, Congress might not enact a new appropriations act before Thursday, December 10. Without a new appropriations agreement, if the U.S. Government were to remain open on Friday, December 11, the government would likely be in violation of the Antideficiency Act (“Act”) and offenders would be subject to federal prosecution. However, the chance of prosecution would be unlikely. Furthermore, who would have standing to oppose the government’s actions is unclear.
The Act prevents U.S. Government and Washington, D.C. agencies from “mak[ing] or authoriz[ing] an expenditure or obligation exceeding an amount available in an appropriation or fund for the expenditure or obligation.” The Department of Justice has interpreted the Act to mean that “on a lapse in appropriations, federal agencies may incur no obligations that cannot lawfully be funded from prior appropriations unless such obligations are otherwise authorized by law.” However, the Act allows essential services such as the military and FBI to remain working. As a practical matter the U.S. Government has traditionally remained open when a funding lapse is for less than a business day because by the time the government would shut down operations, the shutdown would be over. Thus, unless Congress were likely to reach a deal with the President sometime on Friday, December 11, 2015, government programs funded through annual appropriations should cease on Friday, December 11.
Although the U.S. Government and its employees would violate the Act by working on Friday, December 11, prosecution would be unlikely. Violators of the Act are subject to a $5,000 fine and/or two years imprisonment. Even though a form of the Act has been in effect since 1870, government shutdowns are only a relatively recent phenomenon. Before 1980, the U.S. Government thought that a lapse in appropriations meant that the government could remain open as long as it tried to minimize new spending, such as by not hiring any new staff. In 1980, the Department of Justice determined that outside of a few exceptions mentioned in the Act, the Act required U.S. Government agencies to shut down when annual appropriations expire. The Department of Justice also provided an unofficial safe harbor to all previous violators of the Act because of the “uncertainty among budget and accounting officers as to the proper interpretation of the Act.” With such a widespread misinterpretation of theContinuing Appropriations Act, 2016 (“CR”), the Department of Justice would likely grant a safe harbor to all prior violators of the Act.
If the U.S. Government were incorrectly to interpret the expiration date of the CR as Friday, December 11, who would have standing to oppose the government’s actions is unclear. The best party to challenge the U.S. Government would be a party aggrieved by an action the U.S. Government took on Friday, December 11, such as those impacted by a regulation promulgated on that date. The party could argue that the government’s decision was not valid because the government did not have authority to operate on Friday, December 11. However, currently it is unknown whether any parties would be aggrieved enough by a government action that they would have sufficient standing to challenge the U.S. Government operating on Friday, December 11.
Similarly, Congress could bring a lawsuit challenging the President’s decision to keep the government open an extra day. This lawsuit would fit squarely within the U.S. District Court for the District of Columbia’s holding in U.S. House of Representatives v. Burwell that Congress has standing to sue the Executive Branch when it “spent public monies that were not appropriated by the Congress.” However, Congress would struggle to argue that funding ended a day earlier because Congress also misinterprets the CR. When to shut down is not a singular decision by the President. The parts of the government that are not directly under the President’s control, such as congressional offices and independent agencies, make independent determinations about how to handle a government shutdown. Congress also incorrectly believes Friday, December 11 is the last day of appropriations and Representative and Senators likely would not shut down their offices on Friday, 11. Thus, Congress would struggle to argue that the President should have shut down the government on Friday, December 11.
As a result of this unclear standing, the best way to correct the U.S. Government’s incorrect interpretation of the CR would be through Congress or the Executive Branch realizing its mistake. Congress could correct the problem by writing future continuing appropriations acts so that they expire on the intended date. The Executive Branch could correct the problem by having the Department of Justice issue an opinion clarifying when appropriations end and that any future violators will be prosecuted.
*Sam Wice is an attorney adviser for the U.S. Government, a former analyst at the Congressional Budget Office, and a former Council member of the American Bar Association’s Section of Administrative Law and Regulatory Practice. The views expressed herein are those of the author and do not necessarily reflect the views of the U.S. Government.