Constitution Daily

Smart conversation from the National Constitution Center

A guide to a potential partial federal government shutdown

December 18, 2018 by Scott Bomboy

 

As another potential government shutdown looms later this week, people are making plans about how to deal with furloughs, park closures, and other issues at year’s end.

Congress and President Donald Trump will continue this week to negotiate an agreement to fund about 25 percent of the federal government through September 2019. Current funding for the Transportation, Housing and Urban Development, Commerce, Justice, State, Interior, and Agricultural Departments runs out at 11:59 p.m. on December 21. Other parts of the federal government have been funded until October 2019.

If a temporary continuing resolution isn’t passed by Congress and signed by the President before December 22, a funding gap exists and those departments and agencies will start closing down services and furloughing the employees who provide them unless they meet exceptions under the Constitution or the Antideficiency Act.

Language in the Constitution triggers the shutdown after the funding gap or a lack of direct funding occurs. Article I, Section 9, states that “No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law.” Simply, with no law on the books to fund a department or agency, only jobs deemed critical by agencies or exempted under the Constitution will be carried out in agencies without a funded budget.

Each affected agency lists a contingency plan in advance of a government shutdown. A current list can be seen at: https://www.whitehouse.gov/omb/information-for-agencies/agency-contingency-plans/

In general, many significant government services will continue unabated. Even in a full government shutdown, activities exempted from the shutdown list include the mail; national security and homeland security; government-supplied medical services; food, drug, and environmental inspections; air traffic control; power grid activities; criminal investigations; and disaster assistance. Social Security checks also still go out.

During this potential partial shutdown, the National Park Service would keep parks open that are usually open 24 hours a day, but it won’t provide services such as guided tours and open restroom facilities. Federally funded museums could also close. (The National Constitution Center, by the way, is a private 501c3 organization and not affected by the shutdown.) The Internal Revenue Service and NASA would furlough most of its workers.

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

Article II, Section 1 of the Constitution states that “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 get paychecks under two parts of the Constitution. Article I, Section 6, says that Congress members “shall receive a Compensation for their Services, to be ascertained by Law, and paid out of the Treasury of the United States.” The 27th Amendment also forbids any change in the compensation rate for Congress during a current term.

And the Supreme Court Justices and all appointed federal judges also get paid. Article III, Section 1, says, “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.”

More than 400,000 federal government workers would fall into the “excepted” category if there isn’t a budget deal before Saturday and they would remain on the job and get paid retroactively. Another 300,000 people would be furloughed and sent home. In the past, Congress also approved retroactive pay for those workers after their jobs were funded.

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

 

Sign up for our email newsletter