The Constitution and federal government shutdowns

On Tuesday, the House of Representatives passed a continuing resolution to fund the federal government into early 2024, pending Senate approval. The scenario will likely lead to more talk about a government shutdown in January.

Here is a brief explanation of the constitutional basis for Congress’ powers and duties related to federal government shutdowns.

The Constitution and Appropriations

Congressional authority to pass laws enabling a shutdown due to a funding gap (or a lack of direct funding) arises from the broad “powers of the purse” granted to Congress in the Constitution. This concept was part of the founders’ vision of the separation of powers. In Federalist No. 58, James Madison spelled out the basic concept: “This power over the purse may, in fact, be regarded as the most complete and effectual weapon with which any constitution can arm the immediate representatives of the people, for obtaining a redress of every grievance, and for carrying into effect every just and salutary measure.”

The Constitution grants these general powers to Congress in several ways. The Spending Clause in Article 1, Section 8, permits Congress to “lay and collect Taxes, Duties, Imposts, and Excises, to pay the Debts and provide for the common Defence and the general Welfare of the United States.”

The Appropriations Clause in Article I, Section 9, also states, “No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law.” In the National Constitution Center’s Interactive Constitution, scholar Kate Stith summarizes these broad powers under Section 9: “In specifying the activities on which public funds may be spent, Congress defines the contours of federal power. This requirement of legislative appropriation before public funds are spent is at the foundation of our constitutional order.”

Stith also points to another part of Article I, Section 9—the Statement and Accounts Clause—that requires the executive branch to publish “a regular Statement and Account of the Receipts and expenditures of all public Money.” The relationship between the two clauses, says Stith, was best explained by Justice Joseph Story in his Commentaries on the Constitution from 1833.

“The power to control and direct the appropriations constitutes a most useful and salutary check upon profusion and extravagance, as well as upon corrupt influence and public speculation,” Story wrote. “A regular account of the receipts and expenditures is required to be published, that the people may know, what money is expended, for what purposes, and by what authority.”

Simply, with no law or policy on the books to fund a department or agency, only jobs and tasks deemed critical by agencies or exempted under the Constitution will be carried out in agencies without a funded budget.

The Antideficiency Act and Shutdowns

An important factor in government shutdowns are the boundaries set by a statute dating back to 1884: the Antideficiency Act (31 U.S.C. §§ 1341-42, 1349-51, 1511-19). According to the Congressional Research Service, the act currently requires that federal obligations and expenditures remain within the amounts approved by Congress.

Specifically, a federal officer or employee “may not make or authorize an expenditure or obligation exceeding an amount available in an appropriation or fund for the expenditure or obligation.” The act’s plain language bars a federal agency from spending more than its total approved budget, and agencies cannot spend funds in a manner that violates any conditions placed on their budget spending.

The CRS defines appropriations from Congress as the “authority for a federal officer or employee to enter binding legal obligations on behalf of the United States.” Congress authorizes spending in regular appropriations acts in advance of a full fiscal year or as continuing appropriations acts for all or part of a fiscal year. In recent years, the use of continuing resolutions has grown in Congress in place of approved annual spending bills. According to the General Accounting Office, Congress has only passed three full-year budgets in advance of their fiscal years in the past 48 years.

When a budget authority expires for a federal government agency, it experiences a “funding gap.” Under the Antideficiency Act, the agency must stop its operations, except in certain circumstances when continued activities are authorized by law. A government shutdown occurs when multiple agencies have funding gaps.

Currently, there are 12 appropriations bills in Congress that fund the federal government. In past years, a partial shutdown occurred when some but not all bills were approved by Congress. As of November 14, 2023, none of these 12 bills have been approved, which would lead to a full government shutdown.

Government Services Under a Shutdown

In general, many significant government services would continue in operation during a federal government shutdown. Even in a full government shutdown, activities exempted have included the mail; national security and homeland security; government-supplied medical services; air traffic control; power grid activities; criminal investigations; and disaster assistance. Social Security checks are also sent to recipients.

The Committee for a Responsible Federal Budget, a non-partisan, non-profit organization that tracks budgetary matters, said recently that agencies and services that could be affected include the National Park Service, government grant programs, certain applications at the Internal Revenue Service, and the government’s ability to send out SNAP benefits. In past years, approximately 850,000 federal government workers faced furloughs during full government shutdowns. Those remaining on the job would get retroactive pay. Congress also approved retroactive pay for those workers after their jobs were funded.

Also, Congress, the Supreme Court, and the president—under the Constitution—get paid regardless of a partial or full government shutdown.

Article II, Section 1, of the Constitution states, “the President shall, at stated Times, receive for his Services, a Compensation, which shall neither be increased nor diminished during the Period for which he shall have been elected.”

Congress still gets paychecks during a shutdown. Article I, Section 6, says that members of Congress “shall receive a Compensation for their Services, to be ascertained by Law, and paid out of the Treasury of the United States.”

The Supreme Court and all appointed federal judges also get paid. Article III, Section 1, reads, “The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office.”

Scott Bomboy is the editor in chief of the National Constitution Center.