How a little-known law makes shutdowns such a headache

It is time to fix the Antideficiency Act to make the federal government more efficient during a shutdown, keep essential employees compensated while on the job and decrease shutdown waste.

In the wake of another lapse in appropriations resulting in a government shutdown, federal employees are bearing the brunt of the immediate impacts. Without appropriations, the Antideficiency Act (ADA) ultimately provides the framework for which government functions temporarily cease and how employees are impacted. But the ADA was first codified into law in 1905, before the modern congressional budgeting process began in 1976 and disagreements paved the way for the first modern shutdowns.

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From its conception, the ADA is fiscally sensible law rooted in Article I of the Constitution and the separation of powers between branches of government: Money cannot be spent from federal coffers without a Congressional appropriation for that purpose. Without it, executive branch agencies could keep spending in hopes of coercing the legislature for taxpayer money afterwards. 

But it is not practical to shutdown the government, especially in a short period of time, and stay true to the spirit of the ADA. When Congress fails to provide appropriations for large segments of the federal government, the ADA leaves agencies without an exact prescription to close, operate during the shutdown and inevitably reopen. And in the modern era of constantly shifting legislative priorities, government agencies and their employees are sometimes left no more than a few days to deal with an impending lapse of appropriations.

When the government shuts down, those federal employees who are not deemed “essential” for public safety and security are furloughed. Those employees “exempted” under the ADA, such as National Weather Service meteorologists, are still not paid, at least until the government reopens. Deciding which employees are exempted requires an analysis that is not specifically outlined in the ADA, and the classification of exempted employees can change depending on the shutdown. 

To complicate matters more, some agencies, like the National Park Service and federal courts, have fees and no-year appropriations that can keep them operating for a period of time, some longer than others. And not all agencies and employees have the same public visibility or access to fees despite the importance of their work.

Consider federal scientists performing experiments in a wide range of fields, from astrophysics to medicine to zoology. At universities across the country, federal scientists collaborate with nearby or collocated professors, students and academic staff whose research does not stop. A disruption to this arrangement may not be headline news, but the challenges to the affected federal employees and their colleagues are frustrating. Even a short shutdown could preclude employees from attending or presenting at an important scientific conference during or shortly afterwards, even if they spent months preparing.

Under the ADA, federal employees who are furloughed may not work, even voluntarily. Legislating the prohibition on employees voluntarily reporting to work out of the ADA would allow certain groups of employees, such as scientists, to better manage their workload during and after the shutdown, with the understanding that they may not be paid.

Federal employees are dedicated to the public service mission of their agencies. Allowing them to opt to continue working would enable them to conduct time-sensitive work that would otherwise pile up during the shutdown, or simply could not be performed at a later date. After all, when Congress has agreed on an appropriation to end a shutdown, they have included retroactive pay for the shutdown time elapsed. 

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In addition to reforming the ADA, Congress could also better codify essential government services into law and provide appropriations for those employees to continue to report to work — and collect a paycheck. This should not be contentious. Congress and the president agree that all of the shuttered government departments and agencies should receive at least some funding in the 2019 fiscal year, and the ADA already forces substantial segments of the federal workforce to continue to work. Like in the past, most appropriations are unrelated to the source of contention, in this case a physical barrier along the southern border.

The occurrence of a shutdown is a manifested aberration of our elected leaders’ duty to responsibly provide a functioning government. Forcing a government shutdown is a blunt political tool for extracting concessions that are neither achieved democratically nor in the interest of American citizens. Fund the government and keep federal employees paid while on the job. Then amend the Antideficiency Act to provide for the orderly operation of government services before, during and after a shutdown.

Jordan Gerth is a meteorologist and associate researcher at the Space Science and Engineering Center on the University of Wisconsin-Madison campus.