By: Riley Henry, L’19

“Due to the temporary shutdown of the federal government that began at 12:01 a.m., January 20, all Library of Congress buildings are now closed and all public events are canceled until further notice.”^[1] This declaration is the notice that greets visitors on the Library of Congress’s website.^[2] Since the federal government shutdown on Saturday, thousands of “nonessential” federal workers have been placed on furlough and told not to report to work on Monday.^[3] But what makes an employee essential and who gets to decide?

Prior to 1980, government shutdowns did not result in the large-scale furlough of federal employees that is now commonplace during government shutdowns.^[4] Many federal agencies and their employees went about their normal business during shutdowns, believing that eventually Congress would pass a spending bill and the federal funds would be restored.^[5] This approach changed in 1981 when then-Attorney General Benjamin Civiletti, citing the Anti-Deficiency Act,^[6]issued an opinion that precluded “nonessential” federal employees from working without pay during a government shutdown.^[7]

The Anti-Deficiency Act provides that “An officer or employee of the United States Government or of the District of Columbia government may not accept voluntary services for either government or employ personal services exceeding that authorized by law except for emergencies involving the safety of human life or the protection of property.”^[8] In Civiletti’s opinion he suggested that each government agency should provide the Office of Management and Budget with a list of what the agency head considered to be the agency’s emergency functions.^[9] To guide this list of emergency functions, Civiletti found that the administrative history for the Anti-Deficiency Act provided two rules for identifying what functions of government are considered “emergencies involving the safety of human life or the protection of property.”^[10]

The administrative history provided that,

“First, there must be some reasonable and articulable connection between the function to be performed and the safety of human life or the protection of property. Second, there must be some reasonable likelihood that the safety of human life or the protection of property would be compromised, in some degree, by delay in the performance of the function in question.”^[11]

Using the administrative history outlined in Civiletti’s 1981 opinion, most federal employees are designated as essential or “emergency” personnel by the head of their respective agency. According to the Frequently Asked Question section on the U.S. Office of Personnel Management’s website, “The head of an agency or his or her designee generally should identify emergency personnel at least annually and notify them in writing that they are designated as emergency employees. The term emergency employee is used to designate those employees who must report for work in emergency situations. The notice should include the requirement that emergency employees report for, or remain at work in emergency situations and an explanation that dismissal or closure announcements do not apply to them unless they are instructed otherwise. Because of the unique circumstances of this emergency situation, an agency may have designated additional employees as emergency employees who were also required to report for or remain at work.”^[12]

So what does Civiletti’s opinion mean for federal employees during the current shutdown? Many federal employees will be deemed “nonessential” and placed on furlough. Most federal agencies will cease operations, with the exception of essential functions, for the duration of the shutdown.^[13] And national museums, like The Smithsonian Institution, will be closed.^[14] On the other hand, services like the military, mail, veteran affairs, social security, and the Transportation Security Administration agency have been deemed “essential” and will continue^[15]

 

 

 

^[1] The Library of Congress, https://www.loc.gov/item/prn-18-a02/federal-government-shutdown-2/2018-01-20/.

^[2] The Library of Congress, https://www.loc.gov/item/prn-18-a02/federal-government-shutdown-2/2018-01-20/.

^[3] See Daniella Diaz & Kevin Liptak, The government just shut down. What happens next? You’ll get your mail, but not your passports. Here’s what’s affected by the shutdown, CNN (Jan. 20, 2018 Updated 4:33 PM), http://www.cnn.com/2018/01/20/politics/what-next-government-shutdown/index.html.

^[4] See Louis Jacobson, Everything you need to know about a government shutdown, Politifact (Jan. 19, 2018 12:43 AM), http://www.politifact.com/truth-o-meter/article/2018/jan/19/everything-you-need-know-about-government-shutdown/; Scott Horsley, A Short History of Government Shutdowns, NPR (Sep. 20, 2013 3:32 AM), https://www.npr.org/2013/09/30/227292952/a-short-history-of-government-shutdowns.

^[5] Id.

^[6] 31 U.S.C.S. § 1342 (LexisNexis 2018).

^[7] Charles Tiefer, Confronting Chaos: The Fiscal Constitution Faces Federal Shutdowns and (Almost) Debt Defaults, 43 Hofstra L. Rev. 511, 520-21. (2014).

^[8] 31 U.S.C.S. § 1342 (LexisNexis 2018).

^[9] Auth. for the Continuance of Gov’t Functions During a Temp. Lapse in Appropriation, 5 Op. Att’y Gen. 1, 11 (1981).

^[10] Id. at 8

^[11] Id.

^[12] U.S. Office of Pers. Mgmt., Frequently Asked Questions Pay & Leave: Who designates an employee as an emergency employee?, https://www.opm.gov/faqs/QA.aspx?fid=e64d74ab-20a3-484c-8682-d2a2b46c22da&pid=167a23cf-d237-4826-b3bf-0a4715c68978.

^[13] Brian Naylor, Open Or Closed? Here’s What Happens In A Partial Government Shutdown, NPR (Jan. 19, 2018 10:40 AM), https://www.npr.org/2018/01/19/578985305/open-or-closed-heres-what-happens-in-a-partial-government-shutdown.

^[14] Brian Naylor, Open Or Closed? Here’s What Happens In A Partial Government Shutdown, NPR (Jan. 19, 2018 10:40 AM), https://www.npr.org/2018/01/19/578985305/open-or-closed-heres-what-happens-in-a-partial-government-shutdown.

^[15] Id.