As the partial government shutdown enters its 26th day, President Trump has ordered thousands of furloughed government workers to return to work - knowing that they will not be paid until after the shutdown ends - to restart government functions like inspecting planes, auctioning off offshore drilling rights, monitoring food safety and issuing tax refunds.
A Trump Administration contingency plan released Tuesday calls for 46,000 worker to return to work, joining the ranks of 420,000 "essential" federal workers who have been working through the shutdown (though they have been forgoing their paychecks at least until the funding is approved).
But according to Bloomberg, critics of the administration are arguing that ordering some employees to return to work constitutes a violation of the 1870 Antideficiency Act, which prohibits federal agencies from spending money that hasn't been explicitly appropriated by Congress unless it's literally a matter of life and death.
But in skirting the boundaries of the law, Trump enjoys one key advantage: Nobody has ever been sued for violating the act, and ultimately the authority to challenge the administration would like with the Department of Justice, which is - you guessed it - currently shut down.
Critics say the Trump administration is skirting federal law by continuing some functions amid the political stalemate between congressional Democrats and Trump over whether to fund a wall on the U.S.-Mexico border. A 149-year-old law bars agencies from spending money Congress hasn’t given to them, with only limited exceptions for “emergencies involving the safety of human life or the protection of property.”
“This administration is being creative in its ability to break the law and test the boundaries,” said Sam Berger, a senior adviser at the Center for American Progress who worked at the Office of Management and Budget under former President Barack Obama.
“They are really walking up to and past that line,” Berger said. “It’s clear they are making political calls, and they aren’t letting decisions be dictated by sound management, by the law or by really anything other than the next 10 minutes of news coverage and how they can win the day.”
Though in a ray of hope that will likely prevent workers from quitting en masse, Trump is expected to sign a law compensating workers with back pay for their unpaid work - after the shutdown ends. In the latest defeat for federal workers, a federal judge on Tuesday rejected a lawsuit filed by several unions seeking to compel the federal government to pay workers during the shutdown.
The National Treasury Employees Union is suing the federal government for making those employees work without pay, arguing that forcing them to process tax refunds falls outside the scope of activities that should be permitted during a shutdown. A federal judge in Washington on Tuesday rejected a request by that union and other federal workers to issue a temporary order compelling the U.S. to pay its workers or let them take jobs elsewhere.
The plaintiffs included the Air Traffic Controllers Association, as work to patrol the skies continues amid the shutdown. The Federal Aviation Administration said on Tuesday it had "determined that after three weeks, it is appropriate to recall inspectors and engineers.” Those recalled workers will “perform duties to ensure continuous operational safety of the entire national airspace," the agency said.
Inspections of high-risk food facilities, selling oil drilling rights and processing applications from airlines to launch new flights are just some of the duties that the newly returned workers will handle.
But they also may help the FAA begin processing a backlog of company applications to launch new flights and add planes to their fleets. American Airlines Group Inc. had been blocked from adding two newly purchased planes to its operations because safety inspectors must approve such additions. Southwest Airlines Co. said on Monday it was delaying a new service to Hawaii because it hadn’t been able to obtain FAA approvals necessary to fly long distances over water.
The Food and Drug Administration had briefly suspended some inspections before summoning furloughed employees back to conduct the work.
"With the support of our dedicated field force, we’re recalling hundreds of furloughed colleagues to conduct inspections of high risk food facilities and other entities," FDA Commissioner Scott Gottlieb said Monday on Twitter. Gottlieb said the inspectors will be working on “mostly unpaid” assignments, as about 150 of the roughly 400 newly recalled workers seek to ensure companies are complying with federal standards for making, processing and packing food.
Some 40 personnel also are available amid the shutdown on an on-call basis to help process permits authorizing seismic tests to search for oil in the Atlantic Ocean and develop a new five-year plan for selling drilling rights in U.S. coastal waters from mid-2019 through mid-2024.
The bureau says the activity is “critical” to hold the lease auctions on schedule. “Failure to hold these sales would have a negative impact to the Treasury and negatively impact investment in the U.S. offshore Gulf of Mexico.”
The Trump administration's critics are accusing the president of favoring industries friendly to the administration, like the energy industry, by summoning these workers back to their jobs.
"Where did this magical new carryover money come from?" asked Elizabeth Klein, deputy director of the State Energy and Environmental Impact Center at New York University School of Law. "Apparently, they don’t have enough carryover to bring back employees to answer the public’s questions about their day-to-day business or address FOIA requests, but they have enough carryover to push forward a new and unnecessary five-year plan to replace the current one that goes through 2022."
The recall of furloughed Interior Department workers comes as the agency processes drilling permits and takes other steps to ensure the shutdown does not halt oil and gas development on federal lands and waters.
The Trump administration is using some available funds to push forward a "fossil fuel-oriented energy dominance agenda" in inexcusable ways, said David Hayes, a former deputy Interior secretary.
While there's little they can do to stop him, we wouldn't be surprised if the administration's decision to order employees to return to work becomes fodder for yet another investigation ordered by House Democrats.