Unlike the December 8 date that Congress and commentators believe is the deadline for a government shutdown, a close reading of the Continuing Appropriations Act, 2018 (“CR”) shows that the deadline is likely a day earlier.
The CR funds the government:
until whichever of the following first occurs: (1) the enactment into law of an appropriation for any project or activity provided for in this Act; (2) the enactment into law of the applicable appropriations Act for fiscal year 2018 without any provision for such project or activity; or (3) December 8, 2017.
The parallel sentence structure means ‘until’ must modify all three clauses similarly. ‘Until’ modifies the first two clauses as an exclusive end date. To interpret ‘until’ in the first two clauses as inclusive of new appropriations would mean that two appropriation acts could simultaneously be in effect. This is clearly not Congress’ intent. Thus, Congress uses ‘until’ exclusive of the end date in the third clause, and the CR likely expires today, December 7.
If the U.S. Government were to be open tomorrow, it would likely be in violation of the Antideficiency Act (“Act”). The Act prevents the U.S. Government and Washington, D.C. from “mak[ing] or authoriz[ing] an expenditure or obligation exceeding an amount available in an appropriation or fund for the expenditure or obligation.” The Department of Justice has interpreted the Act to mean that “on a lapse in appropriations, federal agencies may incur no obligations that cannot lawfully be funded from prior appropriations unless such obligations are otherwise authorized by law.” As appropriations end at midnight tonight, a shutdown should occur if Congress does not pass a continuing resolution by midnight.