Malcolm Rivera
Government shutdowns in the United States have occurred periodically since 1980 and are the result of a failure to pass appropriation bills before the previous ones expire. This is known as a lapse of appropriation and requires the curtailment of agency activities and services, the shutdown of non-essential operations, and the furlough of non-essential workers. The Antideficiency Act of 1884, which was amended in 1950, states that federal agencies cannot spend or obligate any money without an appropriation from Congress. Congress's authority to pass laws enabling a shutdown due to a funding gap stems from the powers of the purse granted to them by the Constitution.
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What You'll Learn
The US Constitution's separation of powers
The US Constitution establishes three separate but equal branches of government: the legislative branch (makes the law), the executive branch (enforces the law), and the judicial branch (interprets the law). The Framers structured the government in this way to prevent any one branch from becoming too powerful and to create a system of checks and balances.
The doctrine of separation of powers, which the Framers implemented in drafting the Constitution, was based on several generally held principles. These include the separation of government into three branches, the concept that each branch performs unique and identifiable functions, and the proscription against any person or group serving in more than one branch simultaneously.
The Framers' experience with the British monarchy informed their belief that concentrating distinct governmental powers in a single entity would subject the nation’s people to arbitrary and oppressive government action. As James Madison wrote in Federalist No. 47, political theorist Baron Charles de Montesquieu had written about the separation of powers concept almost 100 years earlier.
The Legislative Vesting Clause, along with the coordinate Executive and Judicial Vesting Clauses, delineate the powers the Framers accorded to the National Government’s Legislative, Executive, and Judicial Branches. The Framers' separation of power was not rigid, but incorporated a system of checks and balances whereby one branch could check the powers assigned to another. For example, the Constitution allows the President to veto legislation, but requires the President to gain the Senate’s consent to appoint executive officers and judges or enter into treaties.
The Supreme Court has vacillated over the years between using a formalistic approach to separation-of-powers issues grounded in the perceived necessity of maintaining three distinct branches of government, and a functional approach that stresses core function and relationship, and permits a good deal of flexibility when these attributes are not threatened.
Now, to address why the Constitution allows a government shutdown. Congress's authority to pass laws enabling a shutdown due to a funding gap 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. 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".
An important factor in government shutdowns is the Antideficiency Act, which requires that federal obligations and expenditures remain within the amounts approved by Congress. 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.”
Congress, the Supreme Court, and the President continue to get paid during a 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." Similarly, 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.” Article III, Section 1, reads, “The Judges, both of the supreme and inferior Courts, shall [...] at stated Times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office.”
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Congress's 'power of the purse'
The power of the purse is the ability of one group to control the actions of another group by withholding funding or putting stipulations on the use of funds. In the US, this power is vested in Congress, as laid down in the Constitution of the United States, Article I, Section 9, Clause 7 (the Appropriations Clause), and Article I, Section 8, Clause 1 (the Taxing and Spending Clause).
Congress's power of the purse is at the foundation of the Constitution's separation of powers, a constitutionally mandated check on executive power. The appropriations process has been reformed multiple times, including notable restructurings with the Congressional Budget and Impoundment Control Act of 1974 and several laws designed to balance the budget in the 1980s and 1990s.
The power of the purse plays a critical role in the relationship between Congress and the President. For example, Congress can use this power to limit executive power, such as in the case of limiting military funding. One of the most prominent examples is the Foreign Assistance Act of 1974, which eliminated all military funding for the government of South Vietnam and thereby ended the Vietnam War.
Congress can also use the power of the purse to compel the US states to pass laws, in cases where Congress does not have the constitutional power to make it a federal matter. For instance, Congress can withhold federal funds for highways in states that do not comply with federal legislation on the drinking age.
Congress's authority to pass laws enabling a shutdown due to a funding gap arises from its broad "powers of the purse". An important factor in government shutdowns is the Antideficiency Act, which requires that federal obligations and expenditures remain within the amounts approved by Congress. Shutdowns of the type experienced by the US are nearly impossible in other forms of government, as stalemates within the government are much less likely under parliamentary systems.
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The Antideficiency Act
The Act prohibits federal agencies from spending or obligating federal funds in advance or in excess of an approved budget. In other words, it 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 ADA also prohibits the acceptance of voluntary services.
The ADA has ramifications for agencies and individual employees alike. While no one has ever been convicted or indicted for its violation, agreements have been changed and reported due to ADA violations, and punitive administrative actions are routinely taken against government employees. Responsibility for ADA violations is usually fixed at the highest level that knew about or should have known about the violation.
The ADA is relevant in the context of government shutdowns. For example, during the 2013 shutdown, Attorney General Benjamin Civiletti issued two opinions that more strictly interpreted the Act in the context of a funding gap, along with its exceptions. The opinions stated that, with some exceptions, the head of an agency could avoid violating the Act only by suspending the agency's operations until the enactment of an appropriation.
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Congress and the President get paid during a shutdown
The US Constitution grants Congress the "
During a government shutdown, Congress, the President, the Supreme Court, and all appointed federal judges continue to receive paychecks. This is due to the following constitutional provisions:
- 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."
- Article I, Section 6, states 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."
- Article III, Section 1, states that federal judges "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."
While Congress, the President, and federal judges continue to receive pay, hundreds of thousands of federal employees are typically furloughed without pay during government shutdowns. These employees are guaranteed back pay due to legislation passed in January 2019. However, federal contractors have historically not received back pay.
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Checks and balances
The US Constitution allows for government shutdowns as part of the system of checks and balances. Checks and balances are a vital aspect of the US system of governance, and government shutdowns can be understood as an example of this system in action.
The practice of annual appropriations, which is at the root of government shutdowns, is an important source of checks and balances for Congress over the executive branch. This practice was first developed by the British parliament as a way of constraining the monarch. In the US context, it is particularly important because the executive branch has been delegated broad statutory authorities by Congress, and presidents have also claimed broad understandings of their constitutional authority.
The "power of the purse" refers to Congress's authority to deny access to public funds, and it is one of Congress's most essential constitutional authorities. This power is derived from the Spending Clause in Article 1, Section 8 of the Constitution, which permits Congress to "lay and collect Taxes, Duties, Imposts, and Excises, to pay the Debts and provide for the common Defence". This power was understood by the founders as a way to arm the immediate representatives of the people with an effective weapon to address grievances and carry out just and salutary measures.
The Antideficiency Act, initially passed in 1884 and amended several times since, further constrains federal agencies from spending or obligating any money without an appropriation (or other approval) from Congress. When Congress fails to enact the 12 annual appropriation bills, federal agencies must cease all non-essential functions until Congress acts. This results in a government shutdown.
During a shutdown, only jobs and tasks deemed critical by agencies or exempted under the Constitution will be carried out in agencies without a funded budget. Congress, the Supreme Court, and the President continue to get paid, as do federal employees providing essential services such as air traffic control and law enforcement. However, these employees do not get paid until Congress takes action to end the shutdown.
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Frequently asked questions
The Constitution allows a government shutdown as a result of 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.
During a government shutdown, federal agencies must cease all non-essential functions until Congress acts. Many federal employees are told not to report for work, although those providing essential services such as air traffic control and law enforcement continue to work.
There is no set duration for a government shutdown. In the past, they have lasted anywhere from a few hours to several days.
During a government shutdown, Congress, the Supreme Court, the president, and all appointed federal judges continue to receive paychecks. Furloughed employees do not receive paychecks but are guaranteed back pay due to legislation passed in January 2019.
