What a government shutdown really shuts down and who gets paid

The word "shutdown" is a bit of a swindle. It conjures a picture of Washington going dark, the way a factory does when the power goes out: the doors locked, the machines silent, the whole enterprise frozen until somebody finds the switch. Cable news loves that picture. It fits on a graphic with a countdown clock. It is also mostly wrong.

What actually happens during a funding lapse is a sorting. Some activities stop, some continue on other money, and some continue by law with people working and not being paid on time. Your Social Security check shows up. The air traffic controller stays at the scope. The national park visitor center locks its doors. The same event produces all three results, and which one you get depends on rules that are older than most people suppose. Let me walk through them, because a voter who knows the rules is much harder to scare.

The law behind the lights

Start with the Constitution. Article I, Section 9 says no money may leave the Treasury except under an appropriation made by law. The power belongs to Congress. An agency that has no appropriation has, in the plainest sense, no money to spend.

Congress built a statute to enforce that principle. The Antideficiency Act, whose roots go back to 1870 and which now sits in Title 31 of the United States Code, forbids federal officials from spending money before it is appropriated or in excess of what has been appropriated. It also forbids accepting voluntary services, which means an agency cannot simply tell its employees to work for free and sort out the pay later. The act has exceptions, the most important of which covers emergencies involving the safety of human life or the protection of property. Violations bring administrative discipline, and knowing and willful ones can bring criminal penalties.

Now here is the surprising part. For much of the twentieth century, nobody read the law that strictly. When Congress had not finished its spending bills by the start of the fiscal year, agencies often kept operating, assuming Congress would pay for the work later. A "funding gap" was a nuisance, not a shutdown.

The Civiletti opinions

That changed in 1980 and 1981. In April 1980, with a funding gap looming, President Jimmy Carter's Attorney General, Benjamin Civiletti, issued a formal legal opinion on April 25 concluding that the Antideficiency Act meant what it said. When an appropriation lapses, an agency may not keep running as usual. It must stop, apart from a short list of exceptions. A second opinion followed on January 16, 1981, refining the first. It explained that agencies could continue activities that involve the safety of life and protection of property, that have express statutory authority to continue, or that follow by necessary implication from other law, and that they could take the time required to close down in an orderly way.

A lesser-known point: both opinions were an exercise in taking the law as written. A conservative who believes in the rule of law should find that hard to fault. Congress passed a statute saying you cannot spend money you do not have, and the Attorney General said the statute applied. The consequence was that Congress gained a weapon, and a risk. If Congress would not pass appropriations, the government would visibly stop doing things.

Short lapses followed in the 1980s, which made the new reading real, and the first long, famous ones came in the mid-1990s. Since then, the machinery of a shutdown has been a recurring feature of American politics.

Three words you need: excepted, exempt, furloughed

Federal employees fall into categories that the news usually blurs together.

• Excepted employees are those whose work the law allows to continue during a lapse because it protects life or property or is otherwise authorized. They report to work. Think of air traffic controllers, many law enforcement and border officers, federal prison staff, and food safety inspectors. They are required to work, and their paychecks are delayed until funding returns.
• Furloughed employees are those whose work is not excepted. They are placed on temporary unpaid leave and may not work, even voluntarily. After a short period of orderly shutdown, they stay home.
• Exempt activities are not employees at all, but programs that keep running because they have funding that does not depend on the annual bills. Some are paid from fees. Some are financed through multiyear appropriations passed earlier. Some run on permanent law.

The word that makes the biggest difference is the last one. A great deal of the government does not stop because it was never dependent on the annual appropriations in the first place.

What keeps running on its own

Here is the list that surprises people.

1. Social Security and most other mandatory benefits. Benefit payments are authorized by permanent law. They do not require a new appropriation each year. The checks go out. Some administrative work, such as processing certain new claims or handling some customer service, can slow down, but the benefit machinery does not lock up. For how the program is funded, see How Social Security works and the promise built into its 1935 design.
2. Interest on the national debt. It is paid under permanent authority. A shutdown has nothing to do with whether the Treasury pays the holders of its securities. Funding lapses and debt-limit fights are separate things, and mixing them up is a common mistake that twelve questions about the national debt, answered straight untangles.
3. The Postal Service. It is funded by postage and other revenue, not by annual appropriations, and it keeps delivering.
4. Fee-funded and multiyear-funded activities. Some regulatory work, patent examination and similar services run on fees collected from users, and can continue for a time.
5. The salaries of the President and Members of Congress. These are paid under permanent appropriations, so lawmakers keep their paychecks while the staffers and agencies they oversee do not. I will let you decide how that looks.
6. Veterans' medical care. Since a reform enacted in 2009, funding for VA medical care is appropriated a year in advance, which largely shields hospitals and clinics from a lapse.
7. The federal courts. They can continue on fee balances and other money for a limited time, then narrow to essential work if the lapse drags on.

The military is a special case. Service members are generally treated as excepted and continue to serve. Their pay has sometimes needed a separate law, as in 2013, to avoid missed paychecks.

What actually stops

What stops is the discretionary activity that depends on the annual bills and is not excepted. That includes visitor services at many national parks and museums, much of the work of agencies that issue permits, process grants and handle routine paperwork, and large portions of the staff in departments whose work is not tied to safety. Contractors who work for the government can be sent home without pay, and, importantly, they are not covered by the back-pay law described below.

This is where a hypothetical helps. Picture three neighbors, all hypothetical, on the same street. Kim is a federal food safety inspector. She is excepted, so she works through the lapse and her pay waits. Dale is a grant officer at a different agency. He is furloughed, stays home, and receives nothing until the lapse ends. Pat works for a contractor in the agency cafeteria. Pat is sent home, and no law guarantees that anyone will pay Pat for the missed time. Three neighbors, one lapse, three very different situations.

That is a fair picture of the unfairness at the heart of the whole exercise. The people with the least power over the budget fight bear the most visible cost.

1995 and 1996: the shutdowns that taught Washington

The first great modern shutdowns came after the Republican Congress elected in 1994 collided with President Bill Clinton over the budget. There were two. The first ran from November 14 to November 19, 1995. The second began on December 16, 1995, and lasted until January 6, 1996, a stretch of 21 days. The fight centered on how fast to balance the budget and with whose numbers, and on Medicare, Medicaid, education and the environment.

The politics went badly for Republicans. The common judgment afterward, including among many Republicans, was that they lost the fight over blame, and Clinton used the standoff to rebuild his position. In his State of the Union address in January 1996, he said that the era of big government was over, borrowing a Republican theme for himself, and he was re-elected that November. Republicans kept control of Congress, and the budget agreement of 1997 eventually delivered caps and tax relief they had sought. The full chronology is in The 1995 and 1996 Government Shutdowns in Dated Steps and the Lessons Learned, and the way the fight ended up in a deal is part of How Washington learned to budget, from the 1921 act to the 1997 deal.

The lesson is not that the principle was wrong. It is that a shutdown is a blunt instrument whose political cost depends heavily on who gets the blame. It is hard to win a message war while the other side can point to a closed park or a late paycheck.

Back pay: the Government Employee Fair Treatment Act of 2019

For years, federal employees who were furloughed got their back pay by custom. Congress usually included it in the bill that ended the lapse, but it was not guaranteed. The 35-day lapse from December 22, 2018, to January 25, 2019, the longest in history to that point, showed how much anxiety that created. On January 16, 2019, in the middle of it, President Donald Trump signed the Government Employee Fair Treatment Act of 2019.

The law says that furloughed employees receive retroactive pay for the period of the lapse, and that excepted employees who worked without pay are paid as soon as funds become available. It turned a custom into a statute. A conservative can fairly say this was the right thing: people who work for the government cannot be expected to finance the government's failure with their own savings.

There is a cost to the fix, and critics are right to say so. When furloughed employees are paid for the weeks they were barred from working, the taxpayer pays for work that was never performed. That is a legitimate argument for avoiding lapses altogether. It does not make the back-pay guarantee wrong. It makes the lapse costly. Notice also that the law does not cover contractors, and many of them are never made whole.

Three questions to ask of any shutdown headline

When the next countdown clock appears on your screen, run a quick test before you let it frighten you.

1. Which money is this? Is the program funded by an annual appropriation, by a permanent law, or by fees? Only the first kind is at risk in a lapse.
2. Is the work excepted? If it protects life or property, or the law expressly allows it, the employees keep working.
3. Who has a plan? Every agency is required to keep a lapse plan on file saying which employees are excepted and which are furloughed, and the plans are public. If an official says a service will stop, ask to see the plan.

These three questions will not tell you whether a shutdown is wise. They will tell you whether the headline is accurate, which is a better start than most of us get.

The argument over shutdowns

Where do conservatives land? Here are the two best arguments, stated fairly.

The case for accepting the risk of a shutdown. Congress's leverage is the power of the purse. A majority that cannot say no to spending has no power at all. If the other side will not negotiate, a lapse forces the issue, and some of the most important spending reforms in history happened under that pressure. Some lessons from the 1990s and from 2011 point that way.

The case against. The people hurt first are not the people who made the decision. The public usually blames whoever seems to be doing the shutting. And the leverage often fails: a party that cannot name what it wants in plain terms and make the case to the voters will lose the story, as 1995 showed.

One reform idea is worth knowing. Some members have proposed an automatic continuing resolution, a law saying that if Congress fails to pass appropriations, funding continues at last year's levels automatically so that a lapse cannot occur. Supporters say it removes the cliff and the hostages. Opponents on the right say it removes the pressure to do the work and locks spending in place; opponents on the left say much the same from the other direction. It is a serious proposal with real trade-offs, and it is exactly the kind of structural question How a budget becomes law, from the President's request to the checks helps you think about.

The bottom line

• A shutdown is a sorting, not a blackout. Excepted workers keep working, exempt programs keep running, and everyone else is furloughed.
• Social Security, interest on the debt and the mail keep going. Many parks, permit offices and routine services do not.
• The Antideficiency Act is the law behind it all, and the Civiletti opinions of 1980 and 1981 are why it is enforced the way it is.
• Since the Government Employee Fair Treatment Act of 2019, federal employees are guaranteed back pay. Contractors are not.
• If you want to know what a lapse means for you, check your agency's lapse plan on its website, and tell your member of Congress that finishing the appropriations on time is the job.