Is the shutdown legal?

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Is the shutdown legal?

The government shutdown has now lasted 27 days. Over 800,000 federal workers are not being paid. About half of those federal employees are being forced to continue to work without pay.

How is this even legal? According to numerous federal lawsuits filed since the shutdown began, it's not.

The National Treasury Employees Union, the National Air Traffic Controllers Association, the American Federation of Government Employees, and other federal workers have sued the Trump administration, arguing the government is violating statutory law and the Constitution.

The current lawsuits haven't made headway yet, but they rely on serious legal arguments. The biggest obstacle for the employees is not the letter of the law but the judiciary's reticence to "interfere" in a political dispute.  

The 2013 precedent

Since most government shutdowns are short, it's a relatively unexplored area of the law. Typically, by the time a lawsuit could be filed, the shutdown is over, and workers have been paid back.

In 2013, however, the government shut down for 16 days. Five U.S. Bureau of Prisons employees sued, and their lawsuit, known as Martin v. U.S., was eventually joined by 25,000 federal employees. The plaintiffs argued that the government's failure to pay them during the shutdown violated the Fair Labor Standards Act (FLSA). The FLSA covers federal workers and requires them to be paid a minimum wage and, in some cases, overtime for work in excess of 40 hours per week. The law requires these wages to be paid in the employees’ next regularly scheduled pay period.

The government responded that the Antideficiency Act (ADA) "prohibits the government from spending money when specific appropriations are not in place." This is the same reason workers are not being paid in the current shutdown.

So the case hinged on resolving a conflict between two federal laws, the FLSA and the ADA. But while the ADA allows the government to accept "voluntary services" for "emergencies involving the safety of human life or the protection of property" it does not require the government to force people to work without pay.

The 2013 shutdown case took its time winding through the courts but, in 2017, a federal judge ruled that the failure to pay workers during the shutdown violated the law. "[U]nder the legal framework previously established by the court, together with the undisputed and material facts agreed to by the parties, defendant’s failure to timely pay plaintiffs’ wages is a violation of the FLSA," the judge found.

Even though the government paid the workers after the shutdown ended, the judge found that the workers were entitled to additional damages amounting to twice their wages because the government did not make a good faith effort to comply with the law.

The Constitutional argument

All plaintiffs in the various cases filed this year argue the failure of the government to pay them during the shutdown violates the FLSA. But some argue the shutdown also violates the Constitution.

A lawsuit filed on January 9 on behalf of various federal employees argues that the shutdown violates the Thirteenth Amendment.

The Thirteenth Amendment prohibits the imposition of involuntary servitude on any individual in the United States, except as a punishment for crime. Defendants’ requirement that Plaintiffs perform involuntary, unpaid service under threat of deprivation of Plaintiffs’ property interests violates the Thirteenth Amendment’s prohibition against involuntary servitude.

The argument is a little tricky because federal employees could quit. But the plaintiffs argue that they are "career, competitive service employees who may only be removed from federal service for good cause." Therefore, they have a property interest in their jobs. The threat losing their job if they refuse to work without pay, the plaintiffs argue, violates the Thirteenth Amendment.

The plaintiffs make a related argument that the government is violating the Fifth Amendment rights of furloughed employees, who are prohibited from seeking outside employment during the shutdown. They argue that the plaintiffs "maintain constitutionally protected liberty and property interests in obtaining meaningful employment without arbitrary government interference." Furloughed employees could also quit but they argue that they "cannot be compelled to forego their property interest in continued federal employment as a condition of asserting other constitutional rights."

A legal setback

Time is not on the side of the federal employees suing the federal government. Every day they aren't getting paid creates new problems, and the legal system works slowly. So the plaintiffs are seeking an injunction that would force the government to start paying them immediately.

On Tuesday, U.S. District Judge Richard J. Leon rejected a request for an injunction filed on behalf of the air traffic controllers and employees at the Department of the Treasury.

Judge Leon said granting the injunction would be "profoundly irresponsible" because it could result in essential employees staying home from their jobs. "At best it would create chaos and confusion. At worst it could be catastrophic . . . I’m not going to put people’s lives at risk," Judge Leon said.

This is less of a legal argument and more of a practical one. Judge Leon wants to make sure that the operations of the government are orderly. In so doing, he may be creating a legal framework that allows the shutdown to continue indefinitely.

The decision does not end the case. But it means any relief afforded to the employees will come much further down the line.

The attorney representing the government in the case is "generally on furlough status" and not being paid himself.

Shutdown case postponed due to shutdown

Another case challenging the shutdown, filed on behalf of two employees of the Federal Bureau of Prisons, was postponed by a federal judge -- because of the shutdown.

Department of Justice attorneys requested a stay of the case because they are barred from working. Judge Patricia E. Campbell-Smith granted the motion.

“The court appreciates the ironic circumstance that the very subject of this case also triggers the parties’ inability to proceed with the litigation. That said, neither the court nor the attorneys at the Department of Justice has the authority to change the present circumstances,” Judge Campbell-Smith wrote.

An oil drilling emergency

As noted above, the ADA, which the government is relying on, has significant restrictions. It only allows the government to accept voluntary services from essential employees. This provision does "not include ongoing, regular functions of government the suspension of which would not imminently threaten the safety of human life or the protection of property."

The January 9 lawsuit filed by federal employees already alleges that the Trump administration is violating the ADA by requiring non-essential employees to keep working.

Now, the Trump administration is "bringing back employees who were furloughed to work on sales of land for oil and gas drilling purposes in the Gulf of Mexico." House Natural Resources Chairman Raul Grijalva (D-AZ) said the decision "appears to be a violation of the Antideficiency Act." (The Interior Department, however, is paying the workers with unspent funds from previous years, so there might not be a legal violation.)

But the move adds to the evidence that the administration is forcing employees to work based on their political priorities. It ordered 46,000 IRS workers to return to work without pay so they can process tax refunds. While most federal parks have no staff "a historic clock tower at the Trump International Hotel remained open...for its handful of visitors, staffed by green-clad National Park Service rangers."

What's next

While the legal cases are proceeding slowly (or not at all) so far, some critical federal workers have already decided not to show up. The Transportation Security Agency, which employs airport screeners, issued a press release Wednesday revealing "many employees are reporting that they are not able to report to work due to financial limitations." If people start missing their flights, that could place additional pressure on Trump to end the shutdown.

Nancy Pelosi also canceled Trump's State of the Union address, denying him his largest TV audience of the year.


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