The Trump administration is pushing the legal boundaries of a government shutdown, fueling fears that the president is manipulating federal agencies and workers to soften the political blow against him.
In recent days, agencies have called back to work thousands of furloughed federal employees, restarted services and pursued key policies at shuttered agencies. The activity has legal experts, administration officials and veterans of past shutdowns questioning what actually constitutes a government shutdown if the administration can simply resurrect its preferred services and à la carte policy to-do list nearly a month after funding technically expired for several agencies.
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So far, the Trump administration has continued to plow forward on its controversial immigration policies, brought back workers to ensure government assistance gets to farmers and ranchers — a key constituency — and is weighing whether to recall workers would could assist in the federal rulemaking process that has been stymied during the shutdown, according to administration officials.
“What they are doing is making an obligation and policy without Congress’s approval,” said Barry Anderson, former deputy director of the nonpartisan Congressional Budget Office. “Congress is saying there is no money for this and Trump is still doing it.”
In particular, the Trump administration has continued work to finalize its “Remain in Mexico” policy, said three administration officials, even as the agencies working on the issue are mostly closed. The plan — cheered on by Trump’s base — would require Central Americans migrants to say on the southern side of the U.S.-Mexico border while awaiting the results of their asylum requests.
The administration officials also said the government is nearly finished with an upcoming rule that would revise a visa for high-skilled workers known as H-1B. President Donald Trump has promised the updated policy would offer “certainty to your stay, including a potential path to citizenship.” Uncertainty over the future of such visas — frequently used by U.S. tech companies to bring in skilled foreign workers — has caused tech workers to decamp to friendlier countries like Canada.
The immigration work has irked some who see it as an example of the Trump White House reshaping the definition of “essential” to include its favored political agenda items.
“It is shady that the federal government is continuing to work on immigration policy while the Coast Guard is not getting paid,” said one official, not authorized to discuss internal government machinations. “You can’t shut down the government because of the lack of wall funding but then use the excuse of an emergency to keep working on immigration.”
The contested shutdown work is spanning the government.
On Wednesday, the Secretary of Agriculture announced he would recall roughly 2,500 Farm Service Agency workers to temporarily re-open offices to help provide services for farmers and ranchers — many of whom are hurting financially from the administration’s tariffs.
At the Office of the Federal Register, the administration is considering bringing back staff so it can continue publishing proposed rules out of agencies, said one administration official.
Already, thousands of food, drug, medical and aviation safety inspectors have returned to work without pay to blunt the effect of the shutdown on the lives of everyday Americans. And the Internal Revenue Service announced it would bring back to work thousands of employees if the government shutdown persisted until Jan. 28, the kickoff of tax filing season.
Over at the Environmental Protection Agency, officials updated their shutdown contingency plan to add 17 new employees to the agency’s exempted category in the wake of questions from Senate Democrats about whether acting EPA head Andrew Wheeler was using staff that should be furloughed to prepare for his own confirmation hearing on Wednesday. Wheeler has been tapped to run the agency permanently.
EPA justified the move by noting that Justice Department lawyers had told the agency the staffers were necessary for the performance of the president’s constitutional duties. The EPA’s efforts to revise and eliminate Obama-era climate regulations has been a key talking point for Trump officials.
One senior administration official defended all of these actions, arguing the Trump administration is following rules and precedent first laid out in legal arguments from DOJ’s Office of Legal Counsel dating back to 1981 and 1995. The official called the 1995 rulings a guiding light for what is permissible during a shutdown. And the Office of Management and Budget must approve every action an agency takes during this shutdown to reopen services or recall personnel.
“We are doing everything legally possible to keep programs running, and if critics want to argue we should let [food stamp] beneficiaries go without payment for a month or that tax refunds should sit around, then that is their prerogative,” the senior administration official said. “I’d rather be busy trying to figure out with agencies what we can do legally.”
But longtime federal workers and legal experts say the Trump administration is playing fast-and-loose with well-established rules as it continues to pursue its agenda while trying to inoculate itself from public grips by maintaining services for consumers. The shutdown has now lasted a record 26 days, and there is no clear end in sight to the impasse, which centers on funding for Trump’s long-promised wall on the southern border.
G. William Hoagland, a former Republican staff director of the Senate Budget Committee, said the Trump administration is violating the Anti-Deficiency Act, which says the federal government cannot employ personnel, or accept voluntary services during a shutdown except in cases of emergency involving the safety of human life or protection of property. The senior administration official disputed this idea, saying the prior legal rulings provided more flexibility than the act itself says.
“At the end of the day, whenever this is over with, there will be a number of GAO investigations or requests for investigation,” Hoagland said. “I would argue they ought to be careful about these decisions they are making on the fly. At some point, they will be audited on these decisions after the fact.”
Already, House Democrats are questioning some these shutdown decisions, focusing most recently on an Interior Department decision to bring back employees working on offshore drilling efforts, another politically divisive policy move. They slammed the move as illegal and demanded an end to it.
“This is an outrageous step, and the justifications provided … are farcical and make it clear that the administration cares only about the impacts on its favorite industry and not its workers, their families, and ordinary Americans,” wrote House Natural Resources Committee Chairman Raúl Grijalva (D-Ariz.), Rep. Betty McCollum (D.-Minn.), who chairs the Appropriations subcommittee for Interior, and Rep. Alan Lowenthal (D-Calif.).
Everyday, top officials at the Office of Management and Budget are meeting and talking with agency heads to determine what services can reopen, or which employees need to return to work without pay. That calculus has changed as the shutdown has dragged on. Keeping essential parts of the government humming is a mandate from the acting director of the budget agency, Russ Vought, who has urged agencies to make the shutdown as painless as possible, said the senior administration official.
A federal judge on Tuesday also rebuffed a lawsuit from federal workers that argued the Trump administration couldn’t force its employees to work without pay during a shutdown.
That approach stands in contrast to White House’s attitude during the second-longest government shutdown, which occurred under President Bill Clinton. Then, Democratic officials wanted Americans to feel the pain of the shutdown as a way to create pressure on Republicans to end it and refute their opponents’ claims that big government was not ultimately necessary.
“The Trump administration seems to be eager, whenever they get pushback from citizens, to do something about it and mitigate it. We were not in that mode,” said Alice Rivlin, director of the Office of Management and Budget during that time. “We were not trying to make it easy. We wanted to show you do need the government and let’s get this settled.”
Jim Dyer, former staff director of the House Appropriations Committee, argued the Trump administration is not doing anything illegal because they are not spending new money, which has yet to be appropriated by Congress at the closed agencies — even if they are making thousands of employees work unpaid.
And in some instances, the Trump administration is reopening services like asking the IRS to verify incomes for mortgage applications and arguing those services can be funded by fees paid to the agency instead of appropriated money.
“The legal boundary for me is the obligation of money. I have not seen or heard any evidence it is happening,” said Dyer, now a senior adviser at Baker Donelson. “The only thing you’ve got to be mad at them about is the fundamental stupidity of the shutdown.”
Dyer cautioned that this fiscal year was meant to be an easy one, with plenty of money to work with and agreements already reached by the appropriators in Congress.
The 2020 fiscal year will be much more trying, he added, with budget caps that need adjusting and a debt ceiling will need raising — a foreshadowing of the potentially epic battles ahead.
Eric Wolff and Ben Lefebvre contributed reporting.