That is why OPM issued last-minute guidance on September 28—only three days prior to a potential shutdown—that purports to invent new exceptions to appropriations laws that would allow: 1) human resources and management staff to continue working during a shutdown to carry out RIFs set in motion prior to the shutdown and 2) furloughed employees to access government devices to check their emails for information on RIFs. These new exceptions stand in remarkable contrast to the few others that exist to protect life and limb as well as the integrity of vital funded programs such as Social Security.
The OPM guidance should be seen as an admission from the Trump administration that a government shutdown would in fact limit its ability to fire federal employees, which is why it would only allow any permanent layoffs to be initiated prior to the start of a shutdown or in its very first few hours while the government winds down. For this reason, any newly announced RIF should not be viewed as a “shutdown RIF” but rather as a RIF the administration wanted to carry out no matter what, just as it has already been doing in numerous instances this year. At its core, the new OPM guidance is really a tool to ensure that any layoffs the administration wants to carry out cannot be delayed by a shutdown.
The administration has therefore signaled that it favors a new round of firings, regardless of whether the Republican-drafted government funding plan is passed in both chambers. This should make clear to all Americans that the threat of additional firings was never about so-called efficiency measures but rather a tactic to scare Democratic lawmakers away from using their votes to protect American citizens’ health care.
It’s critical to note that based on OPM’s new guidance, only plans made prior to a shutdown—or in anticipation of a shutdown—can be executed during a shutdown. This means that even under the White House’s highly dubious rules, the administration could not escalate its retaliatory efforts against federal employees during a shutdown through more and more rounds of firings. Even under the administration’s new guidance, federal agencies would be limited to the plans made prior to and leading up to a shutdown.
The Trump administration’s actions indicate a stance that federal employees are dispensable—pawns to be played with—and that the firings of employees are not about any notion of government efficiency but about political retaliation at the expense of peoples’ livelihoods, careers, and the vital services they provide to the American people.
The Antideficiency Act and limitations on the administration during a shutdown
Constraints on permanently firing federal employees during a shutdown largely exist because of the Antideficiency Act and the distinction between “shutdown furloughs” that happen during a lapse in Congressional appropriations and “administrative furloughs,” which are department and agency procedures on how to permanently let staff go, including—for example—through a RIF.
The Antideficiency Act is the core federal statute that restricts the use of funds and personnel during a lapse in appropriations, making it the legal foundation for how executive agencies operate during a government shutdown. Generally, this law prevents the federal government from spending any money during a government shutdown if there are no congressionally appropriated funds to do so.
However—as was the case with past shutdowns—government agencies can permit some employees to work during a shutdown if they are paid from nonexpired funds (for example, funds from the Inflation Reduction Act funds) if they are necessary to carry out the president’s constitutional duties or if their duties are related to “emergencies involving the safety of human life or the protection of property.” This exception “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.” Additionally, because of the Antideficiency Act’s spending constraints, most excepted employees who are compelled to work during a shutdown must do so without pay until the shutdown ends.
As with any administration, the Trump administration has relatively wide discretion to determine which employees are “excepted” and can work during a shutdown to perform excepted functions. In making these determinations during a government shutdown, the Trump administration would likely favor certain departments and agencies—such as the U.S. Department of Homeland Security and U.S. Immigration and Customs Enforcement (ICE)—and designate numerous “excepted” employees. However, at other departments and agencies that perform services the Trump administration does not prioritize, there would be very few excepted employees. However, the guiding principle and justifications remain that these employees should be conducting work related to the safety of human life and protection of property.
Agencies may also continue activities necessary to prevent significant damage to fully funded programs—such as Social Security—even though other agency functions are suspended. In addition, a limited set of specific programs are expressly authorized by statute to continue during a government shutdown, such as Medicare, Medicaid, and Supplemental Nutrition Assistance Program (SNAP) benefits.
In addition to the Antidificiency Act’s constraints around spending funds during a government shutdown, the administration also faces limits in firing employees because of a long-standing distinction between “shutdown furloughs”—temporary, nondisciplinary suspensions of employees utilized during a government shutdown—and “administrative furloughs,” by which agencies permanently fire employees.
OPM has historically treated these two procedures as separate and explained that RIFs—which are tools of “administrative furloughs”—“are not applicable to emergency shutdown furloughs,” given that shutdown furloughs are dependent on Congress, not agencies.
How the administration is breaking with precedent to carry out planned firings of federal workers
It is the combination of these legal limitations that led the Trump administration to publish guidance on September 28, acknowledging that it must begin issuing RIF notices ahead of a potential shutdown as well as guidance breaking with past precedent regarding excepted employees and excepted tasks during a shutdown.
By underscoring that a RIF could only continue, not be initiated, during a shutdown, the administration is acknowledging the constraints on RIFs imposed by a shutdown furlough and maintaining the difference between a shutdown and an administrative furlough. At its core, this guidance is an admission by the administration that a shutdown furlough does not invest departments and agencies with the ability to conduct mass firing.
However, in the new guidance, the administration breaks with past precedent for shutdown furloughs in two meaningful ways so that it can continue to carry out the seemingly planned firing of federal workers: 1) that human resources and management staff be temporarily furloughed during a shutdown and 2) that federal employees be barred from performing official work while furloughed—for example, checking their government emails.
The first break with precedent occurs because, under the constraints of the Antideficiency Act, only government employees performing essential duties—such as those related to the safety of human life and protection of property—have previously been allowed to continue working during a government shutdown. But in the administration’s new guidance, OMB directs employees already working on RIF plans to continue executing those plans during a shutdown, specifically stating that “OMB has determined that agencies are authorized to direct employees to perform work necessary to administer the RIF process during the lapse in appropriations as excepted activities.” However, the administration does not provide adequate legal justification for this assertion. In practice, this would make human resources and management staff “excepted employees” who are allowed to work during a shutdown, even though the activities they would be performing do not have to do with the protection of life or property or other exigent circumstances allowing for an exception.
The second break with precedent occurs because the new guidance specifically allows furloughed federal employees to check their government devices and access their emails for RIF updates or provide additional information for RIFs. Prior to the new guidance, federal employees had been given fewer exceptions to check government devices and communication channels—precedent that would limit the administration’s ability to continue carrying out RIFs during a shutdown.
On both fronts, the Trump administration is abusing the law to further carry out its agenda of dismantling and undermining the federal government.
Conclusion
The Trump administration has long already shown a lack of regard for the rule of law and for the government employees who dutifully keep Americans safe—and it is clear that it will treat a government shutdown no differently. The administration has demonstrated its broad interest in firing tens of thousands of federal employees without consideration for the critical services they provide to Americans while also disregarding laws passed by Congress to ensure these workers serve the country and Americans rather than the administration’s political interests.
The Trump administration’s threats to layoff federal employees should be understood as a goal of the administration that will be pursued with or without a government shutdown and should not drive lawmakers’ decisions on whether to support government funding bills.