Why Some of President Trump’s Efforts to Mitigate the Shutdown Were Likely Illegal

by Sam Wice — Tuesday, Jan. 23, 2018@Wice_sam

With the government reopening soon, I thought now would be a good time to examine some of President Trump’s actions regarding the shutdown.  To mitigate the immediate impact of the shutdown, the Trump administration did not shut down agencies that still had unused funds.  However, this decision likely violated appropriations law.

The Constitution specifies that “[n]o [m]oney shall be drawn from the Treasury, but in [c]onsequence of [a]ppropriations made by [l]aw.”   To further delineate what is authorized by law, Congress passed the Antideficiency Act (“Act”), which prohibits the federal government and Washington, D.C. from “mak[ing] or authoriz[ing] an expenditure or obligation exceeding an amount available in an appropriation or fund for the expenditure or obligation.”

Even though the Act has been in effect since 1870, government shutdowns are only a relatively recent phenomenon.  Before 1980, the 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.  Whenever an appropriations act would lapse, the government would stay open and then Congress would later ratify the decision by passing retroactive appropriations.

In 1980, the Department of Justice determined that outside of a few exceptions mentioned in the Act, the Act requires 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.”  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.”  Ever since, the government has generally shutdown when appropriations expire.

However, the “prior appropriations language” in the 1980 opinion has meant that during government shutdowns, some agencies have continued to remain open if they have leftover funds that have not been spent.  For instance, although President Obama ordered the government to generally close during the 2013 shutdown, many independent agencies continued to operate if they still had leftover funds.   The Trump administration’s view that agencies may continue to operate under prior appropriations was consistent with the Department of Justice’s view and prior precedent.

However, the 1980 Department of Justice opinion and the Trump administration have not considered how specific appropriations provisions would indicate that even if money remained after an appropriations act expired, agencies would no longer have the authority to use leftover funds.

The stock language for continuing resolutions, which the most recent continuing appropriations used, states that “appropriations and funds made available and authority granted pursuant to this Act shall be available until . . . January 19, 2018.” By specifying that authority granted pursuant to the continuing resolution expires when the continuing resolution expires, the language indicates that any authority to use the funds also expires.  Specifically, continuing resolutions further state that “[a]ppropriations made and authority granted pursuant to this Act shall cover all obligations or expenditures incurred for any project or activity during the period for which funds or authority for such project or activity are available under this Act.”  By covering obligations only during the period of the continuing resolution, the language implies that the funds may not be used once the continuing resolution expires.  If an agency were to remain open during a shutdown, it would be incurring obligations to pay its employees, which would be outside the window for which Congress authorized the agency to use the funds to cover obligations.

As the 1980 opinion only considered the Antideficiency Act, I encourage the Department of Justice to revisit its 1980 opinion and consider any restrictions that continuing resolutions may impose upon the spending of prior appropriations.

Cite As: Author Name, Title, 36 Yale J. on Reg.: Notice & Comment (date), URL.

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About Sam Wice

Sam Wice is 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. He can be reached at sam.wice[at]outlook.com.

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