The Obama administration appears to have plenty of wiggle room when it comes to exactly how it implements the government shutdown.
One example is the American Forces Network for troops overseas, which is not broadcasting NFL football or the MLB playoffs due to the shutdown, only keeping its news channel on the air.
Such discrepancies are feeding Republican accusations that the administration is deliberately trying to make the shutdown as painful as possible.
GOP lawmakers have particularly honed in on barricading the World War II Memorial and other open-air monuments, which became a major symbol of the first week of the shutdown when lawmakers helped move the barriers for veterans to enter.
The next day, the National Park Service opened up the memorial to veterans groups and said they were participating in “First Amendment activities.”
That hasn’t mollified the GOP criticism. Republicans on the National Resources Committee vowed to investigate whether “the outrageous closure decision was made in order to make the current lapse in appropriations as conspicuous and painful to the public as possible.”
Obama administration officials say the decisions on what gets closed or who gets furloughed due to the shutdown aren’t politically motivated.
National Park Service Director Jonathan Jarvis said memorials normally open 24 hours a day had to be shuttered because he didn’t have the staff to properly monitor them.
“Open-air doesn’t mean it takes care of itself,” Jarvis said in a C-SPAN "Washington Journal" interview.
The decision to open up the World War II Memorial is one example of the latitude federal agencies in a shutdown to determine “essential” operations.
The military continues operating to protect national security, for example, along with air-traffic controllers and TSA agents at airports.
“In general terms, the leeway for what is open and what is not open is largely at the discretion of the president and the heads of the given agencies throughout the federal government,” said John Hudak, a fellow in Governance Studies at the Brookings Institution. “The law says there’s no money for the government to function, but at the same time, the president is also charged with keeping the nation safe with a whole host of activities that he cannot let fall by the wayside.”
Some cases aren’t quite matters of life and death. The Defense Department initially canceled all collegiate sporting events for the military academy, for instance, but decided to allow Saturday’s Navy-Air Force football game, which is aired on national television, to be played. Army’s football game against Boston College was also played, but other sporting events have been axed.
The three golf courses in the District of Columbia operated by the Park Service are closed, but the courses nearby at Andrews Air Force Base and Ft. Belvoir remain open because they are funded by fees from golfers.
In at least one case, furloughs depended on the weather: Some FEMA workers who were furloughed when the shutdown began were recalled Thursday to prepare for the potential landfall of Tropical Storm Karen. In addition to exemptions made for “essential” or national security functions, operations funded by advanced appropriations, like veterans’ health services, can continue, as well as those funded by fees, like the military golf courses.
The State Department, for instance, has continued to provide visa and passport services because they are “fee-funded,” although passport offices were closed during the 1995-1996 shutdown.
Paul Bledsoe, who was special assistant to the Interior secretary during the Clinton-era shutdowns, said the Clinton administration also faced accusations of politicizing the shutdown’s impacts, although the shutdown wasn’t as widespread because three appropriations bills had been passed.
He said most of the closings have been similar this time around, although there are certainly exceptions — like City Tavern in Philadelphia, which is closed because it’s in the Independence National Historical Park.
National parks are often a focal point in a shutdown because they are one of the most visible effects the public sees, said Bledsoe, now a senior fellow at the German Marshall Fund.
He recalled a major fight in the 1995 shutdown with then-Arizona Gov. Fife Symington (R), who wanted to keep the Grand Canyon open but was rebuffed by the National Park Service.
A similar push is now coming from Arizona Gov. Jan Brewer (R), who has offered to pay with local funds to reopen the Grand Canyon. The Park Service has declined.
“You sympathize with that, but as soon as one locality begins to think they can somehow get an exemption, everybody wants to do it,” Bledsoe said. “And that would just be chaos.”
Wisconsin Gov. Scott Walker (R-Wis.) hasn’t asked; he’s defied the federal government’s shutdown order for state parks that receive federal funding.
"After close review and legal consult, DNR [Department of Natural Resources] has clarified areas where the federal procedures are overreaching by ordering the closure of properties where the state has management authority through existing agreements,” Wisconsin's Natural Resources Secretary Cathy Stepp told department employees in an email.
In Washington, the Obama administration continues to face criticism for closing the monuments. The Republican National Committee offered to pay for guards to open the World War II Memorial to the public, and lawmakers are still joining veterans there.
Richard Seamon, a University of Idaho law professor who was assistant to the solicitor general in the Clinton administration, said closing the monuments makes sense because of the legal ramifications if someone was hurt without proper staffing to aid them.
“I just think it’s kind of a no-brainer,” he said. “I think that’s much more logical explanation for the shutdown then some of the political speculation.”
Hudak agreed that closing the monuments fit within the guidelines of the shutdown, but he said the decision to allow veterans into certain memorials for “First Amendment activities” was clearly political.
“That reason could be applied to people who want to go to the Grand Canyon and talk about environmental preservation,” he said. “Anyone can make that argument of visiting a national park to exercise freedom of speech. It’s not actually a legitimate excuse, but a means of making a political football go away.”