Notice & Comment

Examining GAO Decisions on Permissible Government Actions During a Shutdown

President Trump just narrowly avoided a potential, third government shutdown during his presidency. As such, now might be a good time to examine the still ongoing dispute between Congress and President Trump regarding the legality of the Trump administration’s actions during the most recent government shutdown. Specifically, since the most recent shutdown in fiscal year 2019, the Government Accountability Office (GAO; a non-partisan congressional auditing agency) has reviewed seven administration actions during the shutdown. In five of its seven decisions, GAO found that the administration violated appropriations law by conducting non-permissible actions during the shutdown. However, it appears that the Trump administration will largely ignore these decisions. This post will discuss the GAO decisions and potential actions the incoming administration, litigants, and Congress can take to prevent or remediate violations of appropriations law.

Background: Appropriations Law

The Appropriations Clause states that “[n]o Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law.” The Supreme Court has interpreted the clause to mean that “the payment of money from the Treasury must be authorized by a statute.” The Supreme Court has even held that none of the president’s constitutional powers can override Congress’ power of the purse.

Under this reasoning, the Antideficiency Act requires the government to shut down when Congress does not appropriate funds. Specifically, “[a]n officer or employee of the United States Government . . . may not . . . involve [the] government in a contract or obligation for the payment of money before an appropriation is made unless authorized by law.” The Department of Justice has held that requiring federal employees to work during a shutdown obligates the government to pay their salary. As such, except for limited exceptions (e.g., employees whose services relate to emergencies involving the safety of human life or the protection of property), the Antideficiency Act prevents federal employees from working during a shutdown.

GAO Decisions

During the most recent government shutdown, the Trump administration arguably required too many employees to work, in violation of the Antideficiency Act. In response, GAO began reviewing the administration’s actions and issuing decisions.

In the most prominent decisions related to regulatory law (previously covered by Bridget Dooling in this blog), GAO determined that (i) when the Office of Information and Regulatory Affairs (OIRA) is shut down, it does not have the authority to review the rules of an agency that has funding, and (ii) when the National Archives and Records Administration (NARA) publishes the Federal Register during a shutdown, it cannot rely on an agency determination as to whether publishing a rule falls under an Antideficiency Act exception; NARA is independently liable for any incorrect determination. Taken together, the combined decisions could imply that if an agency is without funding, it may not assist the actions of a funded agency. Thus, NARA publishing the Federal Register during the shutdown, even on behalf of funded agencies (only 25% of the government was without funding during the most recent shutdown), arguably violated the Antideficiency Act.

GAO said that the violators must report the violations, and that similar violations may incur criminal liability. However, it appears that the Trump administration has not taken any action to demonstrate that it agrees with any of the decisions. The administration said it would not defer to GAO and make its own, independent determinations as to whether actions during the shutdown violated appropriations law.

As such, no agencies in fiscal year 2019 reported any violations of the Antideficiency Act related to the shutdown, against GAO’s express decisions. In response, GAO has already issued three letters (including the OIRA violation) informing Congress of the relevant violations of appropriations law, and the failure of an agency to report the violation. In addition, it is unlikely that the Trump Department of Justice will enforce the GAO’s decisions by prosecuting any violations, as they were consistent with administration policy.

Potential Solutions

The incoming administration, litigants, and Congress can take different actions to prevent or remediate violations of the Antideficiency Act.

With a presidential transition, the incoming Biden administration has a few options to retroactively demonstrate that GAO correctly determined that the government exceeded its authority during the shutdown. First, the Office of Management and Budget (OMB) in the Biden administration can instruct agencies that when GAO determined there was a violation, the agency should report the violation to Congress. Additionally, OMB could even ask agencies to review their actions during the most recent shutdown and voluntarily report any additional violations of appropriations law. OMB could provide guidance consistent with GAO’s determinations on what would constitute a violation, instruct agencies to make any necessary updates to their shutdown contingency plans, and remind agencies that potential future violations could be met with criminal liability. Second, the Biden administration could issue a notice in the Federal Register that it is rescinding all the regulations that GAO found were improperly promulgated during the shutdown. Whereas these actions could be taken with the stroke of a pen, any future administration could potentially reverse the guidance.

Litigants also have some potential avenues to rectify violations of the Antideficiency Act. For instance, those negatively impacted by the administration’s actions during the shutdown can sue to enjoin those actions. However, this universe would be limited. Specifically, any injury from the actions would have to be ongoing. The District Court for the District of Columbia has already held that even for “dubious” government claims of an emergency that are “transmogrifications of the law”, government employees cannot bring a lawsuit challenging actions requiring employees to work during a shutdown. Specifically, the court dismissed the case for mootness as the shutdown had ended before the court could issue a final decision and any analysis would be so fact specific that the facts are not capable of repetition, yet evading review. As such, litigants could likely only bring a lawsuit when they have ongoing injury from the Trump administration’s actions during the shutdown. For instance, litigants could likely challenge a regulation or administrative decision having long-term impact, such as the ones GAO reviewed in its NARA decision. Thus, although providing an avenue for review, litigation would provide a limited universe of potentially challengeable government actions.

Congress can also take some corrective action. Congress could clarify the Antideficiency Act to (i) specify that the actions the Trump administration took during the shutdown are illegal and (ii) include stricter reporting requirements for the Executive Branch in regards to GAO decisions. The House of Representatives’ proposed Protecting Our Democracy Now Act generally provides many such changes. However, the changes likely would not provide any remedy: A judge and GAO both finding violations implies that the problem is not that the law is unclear, but that an administration may refuse to follow the law because there is no enforcement mechanism. Thus, Congress should consider expanding the Protecting Our Democracy Now Act to allow GAO to (i) sue the administration on behalf of Congress to enjoin any violations of the Antideficiency Act, and (ii) seek administrative punishments (e.g., suspension of pay) against senior, political officials that violate the Antideficiency Act. Although passing a new law would be harder than any other potential solution, this solution would provide the most lasting ability to prevent future violations of appropriations law by creating a permanent enforcement mechanism. This solution would be independent of any future administration or potential political influence.