In the midst of a leadership turnover in Congress and a partial government shutdown, the 116th Congress of the United States of America quietly passed the Government Employee Fair Treatment Act of 2019.1 Nine days later, Congress enacted the Further Additional Continuing Appropriations Act of 2019.2 Both of these Acts amended the Anti-Deficiency Act, specifically 31 United States Code (U.S.C.) § 1341,3 adding a new subsection and more than 200 new words.4 The amendments more than doubled the text of 31 U.S.C. § 1341.5 On its face, such voluminous changes to a statute appears drastic.6 However, in this case, the considerable amount of text added to 31 U.S.C. § 1341 is generally inconsequential for the practicing fiscal law attorney.
Background: The Anti-Deficiency Act
History of the Act
The Anti-Deficiency Act arguably regurgitates the Constitutional imperative of Article I, section 9, clause 7, of the United States Constitution that “[n]o Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law . . . .”7 Its genesis is a result of years of legislative frustration with the executive branch’s self-serving reading of, and sometimes disregard for, this clause of the Constitution.8
Initially, Congress enacted the precursor to the Anti-Deficiency Act, which required that sums appropriated by law shall be applied to objects for which they were appropriated.9 This legislation did little to frustrate executive agencies’ indifference towards recognizing Congress’ “power of the purse.”10 Thus, as agencies’ apathy ensued, so did corresponding legislative controls on agency spending.11 This constitutional cat and mouse game ultimately culminated in the enactment of the original form of the Anti-Deficiency Act, codified in Title 31 of the U.S. Code.12
Congress was prompted to enact the Anti-Deficiency Act to serve two primary purposes.13 First, the Act functions as a legislative measure for Congress to exercise its “power of the purse” over the executive branch and deter agencies from requesting deficiency or supplemental appropriations.14 Second, the Anti-Deficiency Act provides Congress a remedial means to affix responsibility on those officials of the government responsible for incurring deficiencies in appropriations.15
Subsequent amendments to the Title 31 version of the Anti-Deficiency Act were made in 1905 and 1906, respectively, to further enforce the congressional intent of hindering agencies from requesting deficiency appropriations.16 Congress enacted additional amendments in the 1950s to account for administrative control of funds,17 while in the 1990s, Congress subjected the Anti-Deficiency Act to further changes to enforce the Balanced Budget Act and Emergency Deficit Control Act of 1985.18
Currently, the Anti-Deficiency Act primarily resides in section 1341 of Title 31 of the U.S. Code.19 The Act prohibits agency employees from obligating or expending public funds in excess of appropriations.20 It also requires agencies to report violations of the Anti-Deficiency Act to the President of the United States, the Comptroller General, and the Congress.21 The Anti-Deficiency Act serves as a strict liability statute with no mens rea element required to impose administrative discipline on its violators.22 Meanwhile, criminal penalties may attach to any officer or employee of the United States who “knowingly and willfully” violates the Anti-Deficiency Act.23
The Department of Defense’s implementation of the Anti-Deficiency Act is centrally located in Volume 14 of the Department of Defense (DoD) 7000.14-R, Financial Management Regulation (FMR).24 The DoD FMR provides the agency with policy for the administrative control of funds, common Anti-Deficiency Act violation scenarios, and procedures for conducting Anti-Deficiency Act violation investigations.25 This guidance, read in conjunction with the Defense Finance and Accounting Service-Indianapolis 37-1, Finance and Accounting Policy, provide a solid framework for a judge advocate to enforce and administer the Act on behalf of the DoD.26
On 21 December 2018, a Continuing Resolution that funded several government agencies to include, but not limited to, the Departments of State, Interior, and Homeland Security was set to expire.28 At midnight on 22 December 2018, the U.S. federal government failed to extend or provide further budget authority for these agencies beyond 21 December 2018 and hence began a funding gap, or what is more commonly referred to as a “partial ‘government shutdown.’”29
Absent some statutory exception, during a shutdown or lapse in appropriations, agencies without budget authority may not incur new obligations.30 Moreover, regardless of whether agencies are or are not incurring obligations pursuant to some statutory exception, no disbursements are permissible.31 Consequently, this results in certain excepted federal employees that are incurring obligations under the auspices of some statutory exception to work without pay.32
Given the undesireable reality of having federal employees work without compensation, the Senate hastily introduced the Government Employee Fair Treatment Act of 2019 on 3 January 2019.33 This bill was subsequently enacted into law on 16 January 2019.34 The amendment added subsection (c) to the Anti-Deficiency Act and stated that all federal employees, whether furloughed as a result of a funding gap or working under the auspices of some statutory authority during a funding gap, would receive their standard rate of pay for that given period of time.35
This legislation was met with nearly unanimous support and favoritism by lawmakers;36 however, any potential impact that it could have served saw its demise just nine days later.37 In subsequent legislation, the Congress further amended 31 U.S.C. § 1341, and specifically subsection (c), to have the previously promised pay of furloughed and excepted employees during a funding gap be “subject to the enactment of appropriations Acts ending the lapse.”38
In light of the Anti-Deficiency Act’s prohibition against incurring obligations in advance of or in excess of an appropriation,40 a lapse in appropriations logically means agencies can no longer continue operations that necessitate further obligations or expenditures.41 This includes precluding federal government employees, who are paid with those appropriations that have lapsed, from working after the expiration of their agency’s annual appropriation.42 Agency employees reporting to work under those circumstances risk running afoul of the Anti-Deficiency Act under sections 1341 and 1342 of Title 31.43
Such a strict reading of the Anti-Deficiency Act and government shutdowns does not occur in practice.44 Rather, agencies recognize several exceptions to a complete and total shutdown, both as a matter of law and legal interpretation.45 First, agencies and programs may continue to operate with available budget authority.46 The available budget authority generally derives from multiple or no-year appropriations previously provided.47 A second exception permits agencies to incur obligations in advance of appropriations for “emergencies involving the safety of human life or the protection of property.”48 Employees working under the umbrella of this exception are referred to as “excepted employees.”49 Agencies are generally given the discretion to designate employees as “excepted” or “non-excepted.”50
Other recognized exceptions include incurring obligations (1) in order to facilitate the orderly shutdown of activities,51 (2) to carry out core constitutional powers,52 (3) that are “necessary by implication from the specific terms of duties that have been imposed on, or of authorities that have been invested in, the agency,”53 and (4) in advance of an appropriation as permitted by law.54
Other than the exception concerning programs with pre-existing budget authority, a common theme amongst these exemptions is that any such obligations incurred under the auspices of these exceptions cannot be liquidated.55 Stated differently, disbursements and payments will not be made during a funding gap regardless of whether obligations are being incurred.56 It follows that this includes those employees that work during a government shutdown.57
An Unrestrained Liability Short-Lived
The perception of federal government employees working without compensation is not a winning political platform many elected officials are eager to get behind.58 Unpaid federal employees, whether working or not working, carries significant political ramifications, especially in an era of twenty-four-hour news cycles and social media.59 During the most recent shutdown, this unpopularity was compounded by a funding gap that lasted thirty-five days, and perhaps more importantly, two pay periods.60
As such, the Government Employee Fair Treatment Act of 2019 unanimously passed in the Senate and overwhelmingly in the House of Representatives with 411 of 434 representatives supporting the Act.61 This amended the Anti-Deficiency Act and specifically 31 U.S.C. § 1341 to provide, among other things, that federal employees working or furloughed as a result of a lapse in appropriations shall be paid for the period of the funding lapse.62 This was intended to pacify concerned federal employees who were not receiving pay,63 but also arguably serve as an exception to the Anti-Deficiency Act.64
Moreover, as initially passed on 16 January 2019, this amendment represented a massive unfunded liability65 and perhaps even a new entitlement66 by means of backdoor spending.67 This is in addition to the current trillions in payments the government has promised its citizens without the funds to fulfill those obligations.68 The new changes promised that all federal employees, whether furloughed as a result of a funding gap or working as a result of being an excepted employee, would be paid for the time the federal employee was furloughed or worked regardless of the availability of funds.69 Astonishingly, a liability or an entitlement of this magnitude passed without a Congressional Budget Office Cost Estimate.70
However, nine days later, Congress quickly retreated from this ambitious position by passing Public Law 116-5.71 Section 103 of Public Law 116-5 further amended 31 U.S.C. § 1341 at the end of its preceding amendment with the following dispositive language: “and subject to the enactment of appropriations Acts ending the lapse.”72 This qualifying language effectively signified that employees either working or furloughed during a funding gap would be compensated for the time period of the funding gap, if the appropriations act that ended the funding gap provided appropriations.73
Consequently, federal employees impacted by a government shutdown will only be paid as provided for in future appropriations acts.74 This is consistent with prior funding gaps.75 Federal employees receiving back pay for any period of a funding gap has been contingent on subsequent appropriations.76
Thus, the subsequent amendment to 31 U.S.C. § 1341 clarifies that budget authority for federal employees’ pay continues in the form of appropriations77 and that disbursements of pay are contingent on appropriations.78 Unlike other forms of budget authority79 and authority to make payments,80 Congress made clear in this subsequent legislation that the outlay81 of excepted and furloughed employees’ pay, and probably their corresponding obligations,82 are subject to appropriations.83
In sum, in response to a politically sensitive topic, the 116th Congress passed a significant amendment to the Anti-Deficiency Act incurring a substantial unfunded liability for the Federal Government.84 However, any potential impacts from this act were quickly eviscerated just nine days later by that same legislative body.85
Before the recent changes to the Anti-Deficiency Act, federal employees furloughed or working during a funding gap were paid for the period of the funding gap if an appropriations act provided appropriations for that purpose.86 Following the January 2019 amendments to 31 U.S.C. § 1341, nothing has changed in order to pay federal employees. Payments to federal employees, whether working or furloughed during funding gaps, are still contingent on an appropriations act providing appropriations for that purpose.87
So, what do the additional 261 words in the Anti-Deficiency Act mean to the fiscal law practitioner? Practically nothing. TAL
1. Government Employee Fair Treatment Act of 2019, Pub. L. No. 116-1, 133 Stat. 3 (2019) [hereinafter GEFTA].
2. Further Additional Continuing Appropriations Act, 2019, Pub. L. No. 116-5, 133 Stat. 10 (2019) [hereinafter CR].
3. For purposes of this article, “31 U.S.C. § 1341” and “Anti-Deficiency Act” will be used interchangeably. Although other statutes are generally considered part of the Anti-Deficiency Act, 31 U.S.C. § 1341 will be the only relevant provision discussed.
4. (a) (1) Except as specified in this subchapter or any other provision of law, an officer or employee of the United States Government or of the District of Columbia government may not- (A) make or authorize an expenditure or obligation exceeding an amount available in an appropriation or fund for the expenditure or obligation; (B) involve either government in a contract or obligation for the payment of money before an appropriation is made unless authorized by law; (C) make or authorize an expenditure or obligation of funds required to be sequestered under section 252 of the Balanced Budget and Emergency Deficit Control Act of 1985; or (D) involve either government in a contract or obligation for the payment of money required to be sequestered under section 252 of the Balanced Budget and Emergency Control Act of 1985.
(2) This subsection does not apply to a corporation getting amounts to make loans (except paid in capital amounts) without legal liability of the United States Government.
(b) An article to be used by an executive department in the District of Columbia that could be bought out of an appropriation made to a regular contingent fund of the department may not be bought out of another amount available for obligation.
(c) (1) In this subsection –
(A) the term “covered lapse in appropriations” means any lapse in appropriations that begins on or after December 22, 2018;
(B) the term “District of Columbia public employer” means –
(i) the District of Columbia Courts;
(ii) the Public Defense Service for the District of Columbia; or
(iii) the District of Columbia government;
(C) the term “employee” includes an officer; and
(D) the term “excepted employee” means an excepted employee or an employee performing emergency work, as such terms are defined by the Office of Personnel Management or the appropriate District of Columbia public employer, as applicable.
(2) Each employee of the United States Government or of a District of Columbia public employer furloughed as a result of a covered lapse in appropriations shall be paid for the period of the lapse in appropriations, and each excepted employee who is required to perform work during a covered lapse in appropriations shall be paid for such work, at the employee’s standard rate of pay, at the earliest date possible after the lapse in appropriations ends, regardless of scheduled pay dates and subject to the enactment of appropriations Acts ending the lapse.
(3) During a covered lapse in appropriations, each excepted employee who is required to perform work shall be entitled to use leave under chapter 63 of title 5, or any other applicable law governing the use of leave by the excepted employee, for which compensation shall be paid at the earliest date possible after the lapse in appropriations ends, regardless of scheduled pay dates.
31 U.S.C. § 1341 (2019) (emphasis added).
7. U.S. Const. art. I, § 9, cl. 7. See also Cincinnati Soap Co. v. United States, 301 U.S. 308, 321 (1937) (reaffirming that “no money can be paid out of the Treasury unless it has been appropriated by an act of Congress”). The restriction limits both what funds may be expended for, how much will be available for the expenditure, and to compel spending for specific purposes. Herbert L. Fenster & Christian Volz, The Antideficiency Act: Constitutional Control Gone Astray, 11 Pub. Cont. L.J. 155, 159 (1979).
8. Fenster & Volz, supra note 7, at 159.
9. Act of March 3, 1809, ch. 28, 2 Stat. 535 (providing that all obligations by the Secretary of the Treasury, War, or Navy shall specify the particular appropriation or appropriations to which it should be charged).
10. Fenster & Volz, supra note 7, at 159.
11. See, e.g., Act of May 1, 1820, ch. 52, § 6, 3 Stat. 568 (stating that “[n]o contract shall hereafter be made by the Secretary of State, or of the Treasury, or of the Department of War, or of the Navy, except under a law authorizing the same, or under an appropriation adequate to its fulfillment”); Act of March 2, 1861, ch. 84, § 10, 12 Stat. 214, 220 (stating that “[n]o contract of purchase shall hereafter be made, unless the same be authorized by law or be under an appropriation adequate to its fulfillment”); Act of February 12, 1868, ch. 8, § 2, 15 Stat. 35, 36 (stating that “no money appropriated for one purpose shall hereafter be used for any other purpose than that for which it is appropriated”).
12. Act of July 12, 1870, ch. 251, § 7, 16 Stat. 230, 251 (codified at 31 U.S.C. § 3679 (1870)) (stating that “[i]t shall not be lawful for any department of the government to expend in any one fiscal year any sum in excess of appropriations made by Congress for that fiscal year, or to involve the government in any contract for the future payment of money in excess of such appropriations”). See also Pub. L. No. 97-258, 96 Stat. 877 (1982) (recodifying the Anti-Deficiency Act from 31 U.S.C. § 3679 to 31 U.S.C. § 1341).
13. U.S. Gov’t Accountability Off., GAO-06-382SP, 2 Principles of Federal Appropriations Law 6-35 (3d ed. 2006) [hereinafter “GAO Red Book”].
16. Act of March 3, 1905, ch. 1484, § 4, 33 Stat. 1257 (stating that “[n]o Department of the Government shall expend, in any one fiscal year, any sum in excess of appropriations made by Congress for that fiscal year, or involve the Government in any contract or obligation for the future payment of money in excess of such appropriations unless such contract or obligation is authorized by law” and requiring apportionment of appropriations in monthly allotments to prevent deficiencies); Act of February 27, 1906, ch. 510, § 3, 34 Stat. 48 (stating that apportionments shall be adhered to and not waived except upon the happening of some “extraordinary emergency or unusual circumstance which could not be anticipated at the time of making such apportionment”).
17. Act of Sept. 6, 1950, ch. 896, § 1211, 64 Stat. 765; Act of August 1, 1956, ch. 814, § 3, 70 Stat. 783 (providing for funding limitations of administrative formal subdivision of funds).
18. Omnibus Budget Reconciliation Act of 1990, Pub. L. No. 101-508, § 13213(a), 104 Stat. 1388 (1990) (providing amendments to 31 U.S.C. § 1341(a)).
19. 31 U.S.C. § 1341 (2019) (stating a federal officer or employee may not “make or authorize an expenditure or obligation exceeding an amount available in an appropriation or fund for the expenditure or obligation”).
21. 31 U.S.C. § 1351 (2004) (requiring agency heads to report immediately to the President and Congress all relevant facts and a statement of actions taken when there has been a violation of 31 U.S.C. § 1341).
22. 31 U.S.C. § 1349 (1982) (subjecting federal officers and employees violating 31 U.S.C. § 1341(a) or 1342 to “appropriate administrative discipline including, when circumstances warrant, suspension from duty without pay or removal from office”). See also A-86742, (Comp. Gen. Jun. 17, 1937) (stating that “[w]here a payment is prohibited by law, the utmost good faith on the part of the officer, either in ignorance of the facts or in disregard of the facts . . . cannot take the case out of the statute”).
23. 31 U.S.C. § 1350 (1982) (stating that for knowing and willful violations of 31 U.S.C. § 1341, criminal penalties up to a fine of not more than $5,000, imprisonment for not more than two years, or both).
24. U.S. Dep’t of Def., 7000.14-R, DoD Financial Management Regulation, vol. 14 (Apr. 2019) [hereinafter DoD FMR].
26. Id.; Defense Finance and Accounting Service-Indianapolis 37-1, Finance and Accounting, ch. 4 (Mar. 2017) [hereinafter DFAS-IN 37-1].
27. See generally U.S. Gov’t Accountability Off., B-202135, Funding Gaps Jeopardize Federal Government Operations (Mar. 3, 1981) (providing a report to Congress where the Government Accountability Office (GAO) recommended similar legislation as that which was enacted in 2019; however, GAO did not recommend those legislative changes to take place within the Anti-Deficiency Act); see also, U.S. Gov’t Accountability Off., B-241730, Government Shutdown: Permanent Funding Lapse Legislation Needed (Jun. 6, 1991) (recommending similar legislative changes).
28. Department of Defense and Labor, Health and Human Services, and Education Appropriations Act, 2019 and Continuing Appropriations Act, 2019, Pub. L. No. 115-245, 132 Stat. 2981 (2018) (extending budget authority for these agencies until 7 December 2018); Pub. L. No. 115-298, 132 Stat. 4382 (2018) (providing budget authority for several agencies until 21 December 2018).
29. Megan Henney, Partial Government Shutdown Begins: Here’s What You Need to Know, FOXBusiness, (Dec. 22, 2018), https://www.foxbusiness.com/politics/partial-government-shutdown-deadline-looms-heres-what-to-know.
30. Memorandum from Walter Dellinger, Assistant Attorney Gen., Office of Legal Counsel, Dep’t of Justice, for the Director Office of Management and Budget, subject: Government Operations in the Event of a Lapse in Appropriations (16 Aug. 1995) [hereinafter Dellinger Memorandum] (stating that when no current appropriations measure has been passed to fund contracts or obligations, it restricts entering into contracts or incurring obligations except as to situations authorized by other law).
31. U.S. Office of Pers. Mgmt., Guidance for Shutdown Furloughs (Sept. 2015) [hereinafter OPM Shutdown Guidance]. See also Memorandum from the Deputy Sec’y of Def. for Secretaries of the Military Dep’ts et al., subject: Guidance for Continuation of Operations During a Lapse of Appropriations (18 Jan. 2018) (providing Department of Defense-specific guidance on what activities can continue during a funding gap under some statutory exception) [hereinafter DoD Shutdown Guidance].
32. Id. See also Memorandum from Julia C. Matta, Managing Associate General Counsel, U.S. Government Accountability Office to The Honorable Betty McCollum, Chair, et al., subject: Testimony Before the Subcommittee on Interior, Environment, and Related Agencies, Committee on Appropriations, House of Representatives—Application of the Antideficiency Act to a Lapse in Appropriations, B-330720 (6 Feb. 2019) [hereinafter Matta Testimony]; Frequently Asked Questions During a Lapse in Appropriations, The White House (2018), https://www.whitehouse.gov/wp-content/uploads/2018/12/Frequently-Asked-Questions-During-a-Lapse-in-Appropriations.pdf (stating that “[a]fter appropriations are enacted, payroll centers will pay all excepted employees for time worked.”). All excepted employees are entitled to receive payment for obligations incurred by their agencies for excepted work during the period of the appropriations lapse. Id.
33. GEFTA, supra note 1. See also 116 Cong. Rec. S133-34 (2019); 116 Cong. Rec. H498-502 (2019) (providing the legislative history surrounding the passage of GEFTA).
34. GEFTA, supra note 1.
37. CR, supra note 2 (making payments to furloughed and excepted employees subject to appropriation acts).
39. See generally Captain Matthew Freeman, Bridging the Funding Gap: The Implementation of Fiscal Law and Policy to a Lapse in Appropriations, Army Law., Jan. 2014 at 4 (providing an overview of the impact of funding gaps on the Department of Defense).
40. 31 U.S.C. § 1341 (2019).
41. GAO Red Book, supra note 13, at 6-146 (describing the fiscal implications of a lapse in appropriations).
42. Testimony to Gladys Noon Spellman, House of Representatives, B-197841 (Mar. 3, 1980) (stating that “[d]uring a period of expired appropriations, the only way the head of an agency can avoid violating the Anti-Deficiency Act is to suspend the operations of the agency and instruct employees not to report to work until an appropriation is enacted.”) [hereinafter Spellman Testimony]; see also GAO Red Book, supra note 13, at 6-147 (stating that during a funding gap, permitting employees to come to work would result in an obligation to pay salary for the time worked and represent an obligation in advance of an appropriation).
43. Id. 31 U.S.C. § 1342 (1996) (prohibiting the acceptable of voluntary services).
44. Dellinger Memorandum, supra note 30 (stating that when funding gaps are referred to as “shutting down the government” it is an “entirely inaccurate description”). See also Jared C. Nagel, Cong. Research Serv., R41759, Past Government Shutdowns: Key Resources (2019).
45. Id. See also The President, 43 U.S. Op. Att’y. Gen. 224 (1980) [hereinafter Civiletti Memo 1980]; The President, 43 U.S. Op. Att’y. Gen. 293 (1981) [hereinafter Civiletti Memo 1981].
46. Id. This also includes other types of permanent authority made available outside the annual appropriations process. Matta Testimony, supra note 32. See generally 2 U.S.C. § 622 (2011) (providing that other forms of budget authority include borrowing authority, contract authority, and offsetting receipts and collections).
47. Id. Not all government functions are funded with annual appropriations and some operate under multi-year appropriations that do not require passage of annual appropriations, such as social security. Id.
48. Dellinger Memorandum, supra note 30; Civiletti Memo 1980, supra note 45; Civiletti Memo 1981, supra note 45. The emergencies exception applies only to cases of threat to human life or property where the threat can be reasonably said to the near at hand and demanding of immediate response. Id. See also 31 U.S.C. § 1342 (1996). This is the authority commonly relied upon by the Department of Defense. DoD Shutdown Guidance, supra note 31. But see B-208985 (Oct. 5, 1982); B-208951 (Oct. 5, 1982) (cautioning that not all military personnel fit this emergency exception).
49. 31 U.S.C. § 1341 (2019); OPM Shutdown Guidance, supra note 31 (defining excepted employee as “employees who are performing emergency work involving the safety of human life or the protection of property or performing certain other types of excepted work”).
50. See, e.g. DoD Shutdown Guidance, supra note 31 (providing specific DoD guidance on those activities that are essential or excepted and should continue in the absence of appropriated funds).
51. Dellinger Memorandum, supra note 30; Civiletti Memo 1980, supra note 45; Civiletti Memo 1981, supra note 45.
52. Dellinger Memorandum, supra note 30.
53. Id. (describing that certain functions should continue despite a lapse in appropriations because the lawful continuation of other activities necessarily implies that these functions continue).
54. Id. (providing an example of the food and forage authority which authorizes the Department of Defense to contract for clothing, subsistence, etc. without an appropriation).
55. Spellman Testimony, supra note 42 (“Under these circumstances, an employee who reports for work under the direction or with the consent of his or her supervisor is entitled to be paid for the time worked, and the United States is legally bound to pay the employee. The entitlement of the employee and the liability of the Government exists independently of any appropriation although, of course, funds may not be disbursed to pay the employee unless an appropriation for that purpose is enacted.”).
58. 116 Cong. Rec. S133-34 (2019); 116 Cong. Rec. H498-502 (2019).
59. Garth Sundem, How Have 24-Hour News Stations Affected Society?, Howstuffworks.com (Mar. 11, 2011), https://people.howstuffworks.com/culture-traditions/tv-and-culture/24-hour-news-stations-affected-society.htm (stating how twenty-four-hour news cycles cause overblown stories).
60. Megan Henney, Federal Workers Miss 2nd Paycheck as Shutdown Reaches Day 35, FOXBusiness (Jan. 22, 2019), https://www.foxbusiness.com/politics/federal-workers-likely-to-miss-second-paycheck-as-shutdown-drags-into-32nd-day (explaining how most government employees missed two paychecks during the 35-day government shutdown).
61. GEFTA, supra note 1; 116 Cong. Rec. S133-34 (2019); 116 Cong. Rec. H498-502 (2019).
62. GEFTA, supra note 1.
63. Id.; 116 Cong. Rec. S133-34 (2019); 116 Cong. Rec. H498-502 (2019).
64. GEFTA, supra note 1. The addition of “[e]xcept as specified in this subchapter or any other provision of law,” the absence of any language making obligations subject to the availability of funds, and CR, supra note 2, § 137, referencing subsection (c) as “obligations,” compounded by the location of the amendment in 31 U.S.C. § 1341, strongly suggests the Congress caused the Government Employee Fair Treatment Act of 2019, Pub. L. No. 116-1, 133 Stat. 3 (2019) to serve as an exception to the Anti-Deficiency Act. See also GAO Red Book, supra note 13, 6-88, 6-91, 6-93 (discussing various legislation that act as exceptions to the Anti-Deficiency Act).
65. See generally Unfunded Liability, InvestorWords, http://www.investorwords.com/19346/unfunded_liability.html (Unfunded liability is “[t]he amount, at any given time, by which future payment obligations exceed the present value of funds available to pay them. For example, a pension plan’s payment obligations, including all income, death and termination benefits owed, are compared to the plan’s present investment experience, and if the total plan obligations exceed the projected plan assets at any point in time, the plan has an unfunded liability.”). The author of this article was unable to calculate the monetary value of such a liability and is not aware of any research or data that could corroborate any estimate. It is fair to assume that the amount would be quite substantial. But see 29 U.S.C. § 206 (1938) (providing a minimum wage for federal employees under the Fair Labor Standards Act). Compensation for excepted employees working during a funding lapse have been subject to litigation and arguably may be entitled to compensation for the work they perform during a shutdown. Ann E. Marimow, et al., The Essence of Involuntary Servitude: Federal Unions Sue the Trump Administration to Get Paid for Shutdown Work, Wash. Post (Jan. 15, 2019), https://www.washingtonpost.com/nation/2019/01/15/essence-involuntary-servitude-federal-unions-sue-trump-administration-get-paid-shutdown-work/?utm_term=.d0d1a39792fc.
66. 2 U.S.C. § ٦٢٢ (٩) (2011) (defining entitlement authority as the authority to make payments, the budget authority for which is not provided for in advance by appropriations Acts). See also U.S. Gov’t Accountability Off., GAO-05-734SP, A Glossary of Terms Used in the Federal Budget Process 47 (Sept. 2005) [hereinafter GAO Glossary].
67. Id. at 16 (defining backdoor authority or backdoor spending as budget authority provided in laws other than appropriations act, including contract authority and borrowing authority, as well as entitlement authority and the outlays that result from that budget authority).
68. Myra Adams, Unfunded Govt. Liabilities — Our Ticking Time Bomb, RealClear Politics (Jan. 10, 2019), https://www.realclearpolitics.com/articles/2019/01/10/unfunded_govt_liabilities_—_our_ticking_time_bomb.html#! (describing at least $122 trillion in unfunded liabilities by the federal government).
69. Memorandum from the U.S. Office of Pers. Mgmt. for Heads of Executive Dep’ts and Agencies, subject: Government Employee Fair Treatment Act of 2019 (Jan. 23, 2019) (providing guidance to furloughed and non-furloughed federal employees on their compensation during the funding gaps).
70. Congressional Budget and Impoundment Control Act of 1974, 93 Pub. L. No. 344, 88 Stat. 297, §§ 401, 402 (1974) (providing specific requirements associated with any pending legislation that provides new authority to enter into contracts under which the United States is obligated to make outlays and additional requirements of the Congressional Budget Office to prepare an estimate of costs incurred for that pending legislation).
71. CR, supra note 2.
73. Id. (emphasis added). See also, GAO Red Book, supra note 13, 6-90, 6-91 (discussing legislation with “subject to the availability to appropriations” language and how there is “no legal obligation to pay unless and until appropriations are provided”). This amendment also ensured agencies would not be leveraging any transfer or reprogramming authority it may have received to compensate federal employees during a funding lapse. See 31 U.S.C. § 1532 (1982); Matta Testimony, supra note 32.
74. CR, supra note 2. See also, GAO Red Book, supra note 13, 6-88, 6-91 (stating that to constitute an exception to the Anti-Deficiency Act, express authority to incur obligation or expend funds in excess or advance of appropriations is needed, vice some general authority).
75. See, e.g., Extension of Continuing Appropriations Act, 2018, Pub. L. No. 115-120, 132 Stat. 28, § 154 (2018); Pay Our Military Act, Pub. L. No. 113-39, 127 Stat. 532 (2013); see also Sam Wice, Why Federal Employees Will Not Be Working for Free During the Shutdown, Yale J. on Reg.: Notice & Comment (Dec. 24, 2018), http://yalejreg.com/nc/why-federal-employees-will-not-be-working-for-free-during-the-shutdown/.
77. CR, supra note 2. It is still questionable whether the Congress’ appropriation, ending the funding lapse, will specifically provide for appropriations that identify subsection (c) of § 1341 or whether a general lump sum agency appropriation that ordinarily would fund the agency employees’ salary would suffice. The most recent legislation suggests that the Congress will proceed with the former; however, that could also be that the Congress was compensating for its unrestrained liability legislation drafted in GEFTA, supra note 1.
78. Id. See also Matta Testimony, supra note 32.
79. GAO Glossary, supra note 66, at 20–21 (defining forms of budget authority as (1) appropriations, (2) borrowing authority, (3) contract authority, and (4) authority to obligate and expend offsetting receipts and collections.). See e.g., 41 U.S.C. § 6301 (2011), 42 U.S.C. § 2210(j) (2006) (providing contract authority as the form of budget authority).
80. See, e.g., GAO Glossary, supra note 66, at 47 (defining entitlement authority as the authority to make payments, the budget authority for which is not provided for in advance by appropriations Acts).
81. See GAO Glossary, supra note 66, at 73 (defining outlay as the issuance of checks, cash or funds to liquidate an obligation).
82. Id. at 70 (defining obligation as a definite commitment that create a legal liability for the payment of goods or services ordered or received). If employee obligations are not contingent on appropriations and thus, subsection (c) represents an exception to the Anti-Deficiency Act, the next reasonable question and issue is what, if any, recourse is there under the Anti-Deficiency Act for having all federal employees work during a lapse in appropriations. 31 U.S.C. § 1341(a)(1)(B) (providing that a violation of the Anti-Deficiency Act would occur if the government obligated payment of money before an appropriation is made unless authorized by law (emphasis added). But see GAO Red Book, supra note 13, at 6-88, 6-91 (providing a discussion on what constitutes an exception to the Anti-Deficiency Act and generally requiring something more in the legislative language beyond just authority to undertake a particular activity).
83. CR, supra note 2. Therefore, the Congress continued to keep budget authority for federal employees’ pay as subject to appropriations. Id. See also GAO Glossary, supra note 66, at 21 (discussing appropriations as a form of budget authority and stating that sometimes appropriations are contingent upon the occurrence of some other action specified in the appropriation law, such as the enactment of a subsequent authority or the fulfillment of some action by the executive branch).
84. GEFTA, supra note 1.
85. CR, supra note 2.
86. Spellman Testimony, supra note 42.
87. CR, supra note 2. See also Matta Testimony, supra note 32.