Despite the shutdown, the government is still operating. Here's how

“The sky is falling, the sky is falling!” Chicken Little shouted in the classic children’s story dating back to the early 1800s. And now we have the 2018 version: “The government is shut down! The government is shut down!”

OK, let me give you some breaking news: The sky didn’t fall on Chicken Little. And the federal government didn’t really shut down – as is cease all operations – Saturday morning when Congress failed to approve a spending bill to keep it operating.

In fact, the federal government never shuts down completely. Although the shutdown officially began the moment Friday turned into Saturday at midnight, the federal government continues providing many crucial services without interruption.

A partial government shutdown is not a good thing, of course. It represents a failure of our elected leaders to do the most basic part of their jobs, as required under the Constitution. And it wastes billions of dollars.

Despite the failure of Congress to fund continuing government operations, a vast number of government functions are continuing and will continue during the misnamed shutdown.

If past practice is followed, federal employees will be paid retroactively for their missed paychecks after the shutdown ends – meaning hard-working taxpayers will be paying furloughed government workers to sit at home and do nothing.

Don’t blame furloughed federal workers for taking money for nothing. They’re not even allowed to volunteer their time to stay on the job. Blame a dysfunctional Congress, which can’t even pass an annual budget and lurches from crisis to crisis to pass short-term spending bills just to keep government up and running.        

Can you imagine any business operating like this?

Despite the failure of Congress to fund continuing government operations, a vast number of government functions are continuing and will continue during the misnamed shutdown. This includes all services deemed essential for national security and public safety – such as the military and law enforcement – as well as mandatory government payments such as Social Security and veterans’ benefits.

Federal spending is governed by the Constitution, federal law, Justice Department legal opinions, and planning memoranda issued by the White House Office of Management and Budget (OMB).

Article I of the Constitution says that the Treasury Department can’t spend money unless it has been appropriated by Congress. The federal Antideficiency Act (ADA) makes it illegal for federal officials to spend money in excess of congressional appropriations and prohibits the government from accepting voluntary services.

However, the ADA also contains an exception that allows funds to be spent “for emergencies involving the safety of human life or the protection of property.”

In a series of legal opinions by the Department of Justice, that exception has been broadly interpreted to allow spending by government agencies on what are considered “essential” functions. This includes continued employment of federal employees who are necessary to carry out those essential functions.

In a 1981 memorandum, the Office of Management and Budget (OMB) lays out examples of the many government functions of federal agencies that can continue during a funding lapse:

  • National security, including the conduct of foreign relations essential to the national security or the safety of life and property.
  • Benefit payments and the performance of contract obligations under no-year or multi-year appropriations or other funds remaining available for those purposes.
  • Medical care of inpatients and emergency outpatient care and activities essential for the safe use of food, drugs, and hazardous materials.
  • Air traffic control and other transportation safety functions.
  • Border and coastal protection and surveillance.
  • Protection of federal lands, buildings, waterways, and other property of the U.S.
  • Care of prisoners and others in federal custody.
  • Law enforcement and criminal investigations.
  • Emergency and disaster assistance.
  • Activities essential to the preservation of the money and banking system of the U.S., including borrowing and tax collection.
  • Production of power and maintenance of the power distribution system.
  • Protection of research property.

In a 2011 memorandum, OMB provided other examples where federal agencies would continue to function during a so-called government shutdown, such as when federal law expressly authorizes an agency to obligate funds in advance of appropriations.

This includes, for example, a Civil War–era law that allows the Defense Department to contract for necessary supplies, or another federal law authorizing the Bureau of Indian Affairs to continue to contract for goods and supplies.

Critical military operations continue, as does funding that enables the president to carry out his constitutional duties – including as commander-in-chief and in the area of foreign relations.

A 1995 Justice Department opinion confirmed that essential government benefit payments continue, because they operate “under indefinite appropriations provisions that do not require passage of annual appropriations legislation.”

This means that government checks for Social Security, Medicare, Medicaid, and benefits to veterans and others will continue to be paid. Airports will keep running, as will federal prisons, and the Border Patrol will still patrol our borders.

A shutdown is not the end of the world. There have been numerous funding gaps and government shutdowns, such as the one in 2013 that lasted for two weeks during the Obama administration.

In 1995, when the government shut down for five days after Bill Clinton vetoed a continuing resolution, so many federal employees continued to work as “essential” personnel that only 800,000 out of a total of 4.465 million federal employees were furloughed – less than 18 percent.

Trump OMB Director Mick Mulvaney points out that Obama “weaponized the shutdown in 2013” for political purposes by closing down popular attractions such as national parks and monuments to cause as much frustration as possible to taxpayers. He vowed that the Trump administration would not do that.

Of course, that doesn’t mean a shutdown is good policy or that Congress should not fulfill its duty to appropriate necessary funding, particularly for our military and needed social programs.

But holding appropriations hostage in an attempt to extort an amnesty deal for illegal aliens is neither good governance nor good politics. Hurting law-abiding citizens and taxpayers in favor of illegal aliens who have violated our laws makes no sense. 

Hans A. von Spakovsky is a Senior Legal Fellow at The Heritage Foundation.  He is the coauthor of “Who’s Counting? How Fraudsters and Bureaucrats Put Your Vote at Risk” and “Obama’s Enforcer: Eric Holder’s Justice Department.”