Trump shutdown workarounds test a 150-year-old law

• "The key thing about the Antideficiency Act, which has long been its strength but now it turns out to be its weakness, is that it has criminal penalties attached to it," David Super, professor of law at Georgetown Law, told Axios.
• "The Justice Department is pursuing the president's agenda in political as well as legal terms, I think everyone understands that no one will be charged with Antideficiency Act violations no matter how blatant they are," he added.

Flashback: During Trump's first term, the administration ran afoul of the Antideficiency Act when it kept National Parks open and when the IRS issued tax refunds during the 2018–19 shutdown, moves the Government Accountability Office later ruled unlawful.

• The GAO warned that future violations would be "knowing and willful," subjecting officials to penalties.
• The White House referred Axios to the Office of Management and Budget, which did not respond to a comment request.

The big picture: Government shutdowns are a relatively modern concept in U.S. politics, born from a strict 1980 interpretation of the Antideficiency Act.

• Before that, funding gaps "did not typically have major effects on government operations," per the House of Representatives archives. Government agencies continued to operate, expecting that funding would eventually be provided.
• Former President Carter's attorney general, Benjamin Civiletti, wrote legal opinions in 1980 and 1981 arguing that government agencies had no means to operate during a funding gap.

Zoom in: "It is my opinion that, during periods of 'lapsed appropriations,' no funds may be expended except as necessary to bring about the orderly termination of an agency's functions," Civiletti wrote to President Carter in April 1980.

• "On its face, the plain and unambiguous language of the Antideficiency Act prohibits an agency from incurring pay obligations once its authority to expend appropriations lapses," he added.
• The U.S. Supreme Court has also said, "It is a federal crime, punishable by fine and imprisonment, for any Government officer or employee to knowingly spend money in excess of that appropriated by Congress."

Between the lines: The Trump team's current approach — floating stopgap workarounds to keep benefits like food aid for infants and postpartum mothers or military pay flowing — reflects a familiar balancing act.

• Administrations want to minimize visible pain during shutdowns, but the law gives them little room to maneuver without crossing into illegality.

• "It explicitly does not allow them to make up for monies that have expired, and the money for military salaries has expired," Super said. "That is a very overt violation of the Antideficiency Act."

State of play: While most lawyers back Civiletti's strict shutdown doctrine, a small chorus of legal experts says presidents should stop treating it as gospel.

• "Government employees should continue to perform their legally mandated functions despite a failure of authorized appropriations," wrote Loyola University Chicago law professor Allen Shoenberger, who argues the Antideficiency Act itself violates the Constitution's demand for a "vigorous government."
• University of Baltimore law professor Charles Tiefer, a former House counsel, has called for a "dynamic approach" that would let agencies bring employees back during extended shutdowns, arguing Civiletti's static reading of the law "makes no sense after week two."

Zoom out: Government shutdowns do not exist in many peer countries to the U.S., according to the Peter G. Peterson Foundation.

• "Instead, they implement shorter-term solutions (such as continuing to operate the government at the amount budgeted the year before)," the foundation's report said, "or longer-term solutions (such as holding elections so a new government can pass the annual budget)."
• In the United Kingdom, for example, failure to pass a budget could instigate a vote of no confidence and trigger an election. The new government is then tasked with passing funding legislation.

Go deeper: Civilian employees at several federal agencies miss their first full paycheck