If President Barack Obama “shuts down” the government by vetoing a continuing resolution (CR) that funds all government operations with the exception of Obamacare, or the Senate fails to pass such a CR, crucial services will continue without interruption. That includes all services 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.
The key fact, as the U.S. Department of Justice (DOJ) itself has said, is that when there is a short-term lapse in appropriations, “the federal Government will not be truly ‘shut down’…because Congress has itself provided that some activities of Government should continue.” In fact, any claims that not passing a CR will result in a “shutting down” of the government “is an entirely inaccurate description” according to the DOJ.
Such a lapse in funding would be neither catastrophic nor unprecedented, but it would pare down government services to those most essential for “the safety of human life or the protection of property.” That would not include the hundreds of billions of dollars in the federal budget that are constantly squandered and wasted on frivolous, unnecessary, and unneeded programs.
A 1995 opinion by the DOJ’s Office of Legal Counsel over that amendment confirmed the earlier DOJ opinions, although it slightly narrowed the interpretation of “the safety of human life or the protection of property” to mean that they must be “compromised in some significant degree” by the lack of funding.
A 2011 OMB memorandum also confirmed that the executive branch still views those DOJ opinions as establishing the guidelines for the continued operation of the government during a lapse in funding.
The OMB refers to those government functions that can continue to operate because they meet the emergency definition as “excepted” functions. Federal employees who “are needed for the performance of those ‘excepted’ functions” can continue to be employed even in the absence of a CR or an appropriations bill. In fact, the OMB says that federal employees can continue to work who are necessary not just to protect life and property but to perform activities “expressly authorized by law” or “necessarily implied by law,” an extremely broad standard.
Many “Essential” Functions
As a recent report by the Congressional Research Service points out, an OMB memorandum from 1981 lays out examples of the many government functions of federal agencies that may 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 contact 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; and
- Protection of research property.
In its 2011 memorandum, the OMB also provided other instances of “excepted” situations where federal agencies would continue to function