Agencies Went on Despite Shutdown, and Some Ask If That's Legal

(Bloomberg) -- White House Budget Director Mick Mulvaney said the Trump administration didn’t want to "weaponize" the federal government shutdown, so many national parks remained accessible and routine functions continued at some agencies throughout the three-day funding lapse.

The decision struck some as unprecedented. They cited a 134-year-old law known as the Antideficiency Act that bars most operations after a lapse in funding.

“I don’t know what’s going on here, and I don’t know what their rationale is, but it seems to me they’d be in violation of the Antideficiency Act,” said Elaine Kamarck, a senior fellow at the Brookings Institution in Washington. “This is a little weird. Or very weird."

The act bars federal agencies from keeping workers on the job and providing services that cost money if there isn’t funding. The law is the reason many workers at home during a shutdown have to turn off their government cell phones and laptops. It also lays out exceptions: the government can keep essential work underway, which is the justification used to keep Transportation Security Administration agents checking bags at airports and U.S. soldiers deployed around the world.

The Trump administration further wanted to minimize the public pain of a government shutdown -- while also minimizing the political leverage of Democrats, who have used past shutdowns to their advantage by shuttering services and blaming Republicans. Officials drew a contrast to the last shutdown, under President Barack Obama, when even the outdoor World War II monument was encircled by temporary barriers.

"We are going to manage the shutdown differently," Mulvaney said in a briefing with reporters Friday. "We are not going to weaponize it. We’re not going to try and hurt people."

The Smithsonian museums and National Zoo in Washington were open through the weekend and on Monday. National forests and some parks remained open, though with limited staffing and maintenance. In some cases, such as the Statue of Liberty, state governments agreed to cover the costs of keeping some tourist sites open.

"Most of those parks, they tried to maintain and keep those open," said Sarah Sanders, White House press secretary. "Unlike in past shutdowns, they really tried to minimize the impact on the American people.”

In some cases agencies said they were relying on balances not spent before the shutdown commenced at midnight Jan. 19. The Environmental Protection Agency led by Administrator Scott Pruitt said it would use unobligated balances known as “carry-forward funds” to keep most workers on the job, Mulvaney said at a Jan. 20 press briefing.

Those explanations are “murky,” according to Charles Tiefer, a professor at the University of Baltimore law school and a former deputy general counsel to the House of Representatives.

“They’re straining the spirit of the law,” Tiefer said in an interview. The tactics haven’t been used in past shutdowns “because they’ve not been considered proper,” Tiefer said.

“Where is Pruitt magically getting a week’s worth of agency money?” said William Snape, a fellow at American University Washington College of Law and a senior counsel with the environmental group Center for Biological Diversity. “The feds’ ability to hand out lollipops is, and should be, limited."

Asked about criticism of the spending, Meghan Burris, a spokeswoman for Office of Management and Budget, relayed a Jan. 20 memo the White House unit distributed urging agencies to explore “every legal way possible to keep programs up and running, including using carryover funds.”

Agencies were urged to include workers in categories that could remain working to “minimize the impact of the shutdown,” according to the memo.

The shutdown began at midnight on Friday when a temporary spending plan expired. A deal was announced Monday to end the shutdown and keep the government open at least through Feb. 8 -- when another funding lapse could occur without an agreement on a new spending plan.

Kamarck, the Brookings scholar, said the government’s spending authority ceased at midnight Friday.

“The executive branch cannot operate in the absence of congressional appropriations. The Constitution’s pretty clear,” Kamarck said. The topic might make for a Supreme Court case, she said.

Somebody facing a regulatory enforcement action during a shutdown could ask a court to decide the government lacked the authority to take that action, said Adam White, director of the Center for the Study of the Administrative State at George Mason University in Virginia.

But the average taxpayer wouldn’t be able to file a lawsuit arguing that the administration was wrong to keep offices open. "One thing that is clear is that you wouldn’t have standing as a taxpayer to challenge a government expenditure of funds," White said by email.

Douglas Holtz-Eakin, president of the American Action Forum policy group, and former chief economist to the Council of Economic Advisers under President George W. Bush, said he believes the administration was sufficiently careful to avoid breaking the law.

"I think the point is they are transferring funds in, so they are not deficient," he said in an interview.

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