After the longest government shutdown in U.S. history, federal employee unions have filed a number of lawsuits to make sure that employees impacted receive funds they believe they’re owed under labor laws.
But one union is also seeking to challenge the constitutionality of shutdowns themselves, claiming that executive branch agencies that require certain of their employees to work during a funding lapse inherently violate the power of the purse granted to Congress in the U.S. Constitution.
The lawsuit, brought by the National Treasury Employees Union, claims that effectively promising excepted employees an IOU for work done during a shutdown is already obligating funds that Congress hasn’t approved.
“I wanted to do everything in my power to find an avenue to bring shutdowns to an end,” said NTEU National President Tony Reardon at a March 6 press roundtable.
“If you don’t have the appropriation in place to pay employees, then they don’t work. Well, guess what? My bet is that Congress is going to do what they’ve got to do to make sure that they’ve got appropriations in place to make sure that we do not have shutdowns.”
Currently, the Antideficiency Act allows agencies to bring in certain employees to work without pay if their jobs concern the safety of people or property.
The NTEU lawsuit claims that not only is the Antideficiency Act in direct contradiction of the congressional power of the purse, but that agencies like the Internal Revenue Service, which brought in thousands of employees to process tax returns during the shutdown, were not even adhering to the limitations on excepted employees set forth in the act.
“Should the court decide that the government has the legal authority to make some employees work, NTEU has another challenge for the court to consider: an increasingly expansive interpretation of which employees are required to protect life and property,” said Reardon.
“As important as the work is that is done by the IRS, their work does not extend to the protection of life and property. And that is precisely why, when 36,000 IRS employees were called back to work during the government shutdown, we had to ask: are they really protecting life and property? And in this particular case the answer is, ‘No.’”
Though the constitutionality of making federal employees work at all during a shutdown may take some time to decide, U.S. District Judge Richard Leon, who is presiding over the case, said at a Jan. 31 hearing that the government had an “uphill battle” to prove that recalling IRS employees fulfilled the requirements of the Antideficiency Act.
“Judge Leon has been fantastic about understanding the continued value of this litigation,” said Paras Shah, NTEU assistant counsel, at the press roundtable. “Although the January shutdown concluded, there is certainly a reasonable expectation that a shutdown may occur again. I don’t think anybody believes that he or she has seen his or her last shutdown.”
According to Shah, briefings on a government motion to dismiss the case begin March 19, with oral arguments likely to occur in early May. Should Leon choose to deny that motion, he has indicated that he plans to move quickly on a summary judgement on the case that would be issued sometime in September, just in time for any potential funding lapse in the 2020 fiscal year.
