An uncertain take-off: why US officials are reaching for the parachutes

By on 31/01/2019
After a shortage of air traffic controllers threatened air travel, Trump took a step back. But the shutdown has left its scars (Image courtesy: U.S. Air Force illustration/Tech. Sgt. Peter R. Miller).

The US government is back at work – but the five-week funding gap has left its mark. Exploring how the state came to a stop, Eileen Guo finds that the civil service’s longest-ever shutdown threatens one of its key assets

On Monday 28 January, hundreds of thousands of federal workers began the working year, commuting to their offices across the United States for the first time during 2019.

It had been 35 days since the US federal government had shut down, after a stand-off between Congress and the White House over the federal government’s annual budget. President Trump had refused to sign any budget bill that did not include $5.7bn in funding for a border wall – a key campaign promise. Without a new appropriations bill, and with current budgets only lasting until December 21, a partial government shutdown began on December 22.

The shutdown directly affected 800,000 federal employees, 380,000 of whom were ‘furloughed’ without pay – sent home to await developments in Washington, DC. The rest, deemed ‘essential personnel’, continued to work – also without pay – until the government reopened. Even back pay for federal employees wasn’t assured until late January, when Congress finally passed a bill promising funds to cover the five-week gap.

Working, but not earning

Even given this bill, however, many of those working for the federal government will take a big financial hit. Federal contractors, ranging from court translators to janitors, security guards to cafeteria workers, did not have their back pay protected by the bill.

Across the country, reports of how the shutdown affected civil servants dominated American news media. The US Coast Guard published resources for its furloughed employees suggesting that they hold garage sales, serve as “mystery shoppers”, or even turn to bankruptcy as “a last option”. A record 35,000 federal workers filed for unemployment benefits in January. Meanwhile, others turned to food banks and crowdfunding sites such as GoFundMe.

35 days and two missed paycheques later, President Trump agreed to temporarily reopen the government – nodding through enough funding to last a couple of weeks. On January 28, government workers returned to their offices – and, in the case of one civil servant, 4,459 emails, as the Washington Post reported

Now, Congress and the White House have three weeks to agree on a longer-term plan to fund and reopen the government. Their new deadline to avoid another government shutdown: February 15.

A structural problem

Since 1976, there have been 22 federal funding gaps, ten of which resulted in partial shutdowns and the furlough of federal workers. The previous longest shutdown was in 1995-1996, when the government closed for 21 days; this one has been the longest in U.S. history.

Shutdowns have their roots in the Constitution’s deliberate attempt to provide checks and balance between the executive and legislature. Whilst the President sets policy – and thus determines how much money the government will require – Congress holds the appropriation powers required to raise taxes, and each year must pass an annual appropriations bill. The result is an annual negotiation over the funding of agencies, programmes and services.

But what if the executive branch and its departments and agencies overspend? In practice, since the earliest days of the republic, the government has regularly laid out more cash than agreed – undermining Congress’s appropriations powers. Legislators have responded by introducing laws designed to block off this escape route for the executive.

Formalising the fight

Congress’s earliest attempts to do so date back to 1820. And in 1870, in the aftermath of the American Civil War, it passed the Antideficiency Act to further limit non-Congressionally appropriated spending. In addition to prohibiting the government from obligating or spending federal funds without Congressional approval, it also prohibited the government from accepting voluntary services. In other words, federal employees were legally barred from working without pay.

But it was a legal opinion in 1980 that set up the modern system of furloughing civil servants. Before that, if federal funding lapsed, agencies would simply curtail spending in areas such as travel or new contracts, and keep employees working — and paid. But in 1980, then-Attorney General Benjamin Civiletti provided President Jimmy Carter with a much stricter reading of the Antideficiency Act, suggesting that the Department of Justice could prosecute federal officials found to be in violation of its prohibitions. No one has ever been charged under the Antideficiency Act, but nor does any government official want to be the first. As a result, the previous way of handling federal funding lapses shifted towards furloughing workers.

The only exception is for “emergencies involving the safety of human life or the protection of property.” This is why airports, the U.S. Postal Service, federal prisons, and the active duty military continue to function — without pay — during government shutdowns.

Collateral damage

On the day that the government reopened, the Congressional Budget Office (CBO) published data showing that the shutdown had cost the American economy $11bn. Of that, $3bn was permanently lost, and won’t be recouped following the government’s reopening.

But for federal workers, the reopening of the government has a more immediate effect: federal employees will be able to pay their bills. Federal contractors – including security guards, janitors and cafeteria workers that work in federal installations – may not, however. Congress’s back pay promise doesn’t cover some of the federal government’s lowest-paid staff.

In the meantime, government departments are resuming work – but as Jorge Castro, a former counselor to the commissioner of the Internal Revenue Service (IRS) and senior counsel to the Senate Commerce Committee, told the Associated Press: “Just because you reopen the government doesn’t mean that on Day 1 everything is normal. There’s still a backlog.” 

Disruption to services

Across the country, the shutdown has halted progress on projects, hampered service delivery, slowed organisational reforms and blocked essential maintenance. And the American public will feel the effects – not least as the Internal Revenue Service (IRS) tries to keep the show on the route through the country’s annual tax return season. In a bid to minimise the impact on ordinary Americans, Trump called 46,000 IRS employees back to work in mid-January — but with three weeks taken out of this crucial period, as the New York Times reported, experts expect delays.

Indeed, just hours before President Trump unexpectedly agreed to temporarily reopen the government, the Federal Aviation Authority (FAA) announced that it would restrict flights in and out of New York City’s La Guardia Airport due to a shortage of air traffic controllers. Unpaid, air traffic controllers and Transportation Security Administration (TSA) had been calling in sick in record numbers, putting safety at risk.

Some saw the FAA’s act as key to the President’s temporary retreat. “Thank you air traffic controllers. You scared Trump into opening the government,” tweeted Congresswoman Eleanor Holmes Norton, who represents Washington D.C.

So much for security

Other economic impacts may take years to manifest. The stability and security offered by a career in the federal government career has long been key to the civil service’s recruitment pitch. Staff who’ve just spent five weeks working unpaid, with no guarantee of ever receiving their salaries, may now greet that claim with a hollow laugh.

“Government jobs at the higher levels – like attorneys and judges – are not the most highly paid in the field,” Dana Marx Lee, an immigration judge and President Emeritus of the National Association of Immigration Judges, told Government Global Forum. “Usually, the trade-off that people talk about is, well, you have increased security and predictability about your job. This just blows that argument out of the water, right? That can be very damaging long-term.”

Even long-serving civil servants are now contemplating seeking more reliable employers elsewhere. Carl Houtman, a research scientist who works for the US Forest Service, loves his job and doesn’t want to leave. But, speaking before the government reopened, he told Government Global Forum that he has his limits: “Three, four months — if it goes to that long, then I’m going to really start thinking about looking for other employment,” he said. For the moment, at least, he doesn’t have to make that decision. But if the President and Congress are unable to come to an agreement by February 15 and government goes back into shutdown mode, the civil service’s offer to its staff – and to future generations of potential recruits – risks losing one of its key planks.

About Eileen Guo

One Comment

  1. J.N. Galt

    31/01/2019 at

    Incorrect to broadly state that Congress dictated that federal employees are barred from working without pay. In fact, Congress established the special government employee (SGE) category, a federal officer or employee who is retained, designated, appointed, or employed to perform temporary duties, with or without compensation, for not more than 130 days during any period of 365 days. Civiletti kicked off the rationale for government shutdowns as a way for the Executive to cower Congress and Dellinger followed suit. Congress has refused to push back against the Executive for its own inscrutable reasons, but most assuredly, some form of political game playing is involved.

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