Order Code RL34680
Shutdown of the Federal Government:
Causes, Processes, and Effects
September 23, 2008
Clinton T. Brass
Analyst in Government Organization and Management
Government and Finance Division
Shutdown of the Federal Government:
Causes, Processes, and Effects
When federal agencies and programs lack appropriated funding, they experience
a funding gap. Under the Antideficiency Act, they must cease operations, except in
emergency situations. Failure of the President and Congress to reach agreement on
interim or full-year funding measures occasionally has caused government
shutdowns, the longest of which lasted 21 days, from December 16, 1995, to January
6, 1996. Government shutdowns have necessitated furloughs of several hundred
thousand federal employees, required cessation or reduction of government activities,
and affected all sectors of the economy. This report discusses the causes, processes,
and effects of federal government shutdowns, including potential issues for Congress.
CRS Report RS20348, Federal Funding Gaps: A Brief Overview, by Robert
Keith, discusses funding gaps since FY1977.
This report will be updated annually.
Budget Negotiations and Choices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Causes of Federal Shutdowns . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
OMB and Agency Shutdown Processes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Effects of a Federal Government Shutdown . . . . . . . . . . . . . . . . . . . . . . . . . 5
Effects on Federal Officials and Employees . . . . . . . . . . . . . . . . . . . . . 5
Examples of Excepted Activities and Personnel . . . . . . . . . . . . . . . . . . 6
Effects on the Public . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Effects on Mandatory Spending Programs . . . . . . . . . . . . . . . . . . . . . . 9
Potential Issues for Congress . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Quality and Specificity of Agency Planning . . . . . . . . . . . . . . . . . . . . 10
Availability of Agency Shutdown Plans . . . . . . . . . . . . . . . . . . . . . . . 10
Shutdown of the Federal Government:
Causes, Processes, and Effects
Budget Negotiations and Choices1
It has been said that “conflict is endemic to budgeting.”2 If conflict between
Congress and the President impedes the timely enactment of annual appropriations
acts or continuing resolutions, the possibility of a government shutdown arises.
During high-stakes negotiations over appropriations measures, a number of
options present themselves to Congress and the President, including
coming to agreement on regular appropriations acts before the
beginning of a new fiscal year;
using one or more interim continuing resolutions (CRs) to extend
temporary funding until final decisions are made; or
not agreeing on full-year or interim appropriations acts, resulting in
a funding gap and a corresponding shutdown of federal activities.
If Congress and the President pursue the second or third options, they may agree on
full-year appropriations after the beginning of the fiscal year by using regular
appropriations acts (e.g., singly or in omnibus legislation) or a full-year CR.
Congress and the President frequently agree on full-year or interim funding without
coming to an impasse.3 On other occasions, however, Congress and the President
may not come to an accommodation in time to prevent a funding gap.
This report discusses the causes of funding gaps and shutdowns of the federal
government, processes that are associated with shutdowns, and how agency
operations may be affected by shutdowns. The report concludes with a discussion
of potential issues for Congress.
Justin Murray, Information Research Specialist in the Knowledge Services Group,
provided research support for this report. This report updates and supersedes CRS Report
98-844, Shutdown of the Federal Government: Causes, Processes, and Effects, previously
authored by Sharon Gressle (retired from CRS), and, later, by Kevin R. Kosar.
Irene S. Rubin, “Understanding the Role of Conflict in Budgeting,” in Roy T. Meyers, ed.,
Handbook of Government Budgeting (San Francisco: Jossey-Bass, 1999), p. 30.
For discussion, see CRS Report RL32614, Duration of Continuing Resolutions in Recent
Years, by Robert Keith. For analysis of the potential functions and impacts of CRs, see CRS
Report RL30343, Continuing Resolutions: FY2008 Action and Brief Overview of Recent
Practices, by Sandy Streeter; and CRS Congressional Distribution Memorandum, Potential
Impacts of Interim Continuing Resolutions (CRs) on Agency Operations and the Functioning
of the Federal Government, coordinated by Clinton T. Brass, July 8, 2008.
Causes of Federal Shutdowns
The federal fiscal year begins October 1. For agencies and programs that are
funded through annual appropriations acts, Congress and the President must enact
interim or full-year appropriations by this date if many governmental activities are
to continue operating. If interim or full-year appropriations are not enacted into law,
the time interval when agency appropriations are not enacted is referred to as a
“funding gap.”4 A funding gap also may occur any time a CR expires and another
CR (or regular appropriations bill) is not enacted immediately thereafter. When a
funding gap occurs, the federal government begins a “shutdown” of the affected
activities, including the furlough of non-emergency personnel and curtailment of
agency activities and services. Programs that are funded by laws other than annual
appropriations acts (e.g., entitlements like Social Security) also may be affected by
a funding gap, if program execution relies on activities that receive annually
Funding gaps and government shutdowns have occurred in the past when
Congress and the President did not enact regular appropriations bills by the beginning
of the fiscal year. They also have occurred when Congress and the President did not
come to an agreement on stop-gap funding through a CR. As noted in another CRS
report, six fairly lengthy funding gaps occurred from FY1977 to FY1980, ranging
from 8 to 17 full days.5 Subsequently, the durations of funding gaps shortened
considerably. From FY1981 to FY1995, nine funding gaps occurred with durations
of up to three full days. A significant exception to the trend occurred in FY1996,
when President William Clinton and the 104th Congress engaged in extended
negotiations over budget policy. Two funding gaps and corresponding shutdowns,
amounting to 5 days and 21 days, ensued. There have been no funding gaps since
The Constitution, statutory provisions, court opinions, and Department of
Justice (DOJ) opinions provide the legal framework for how funding gaps and
shutdowns have occurred in recent decades.6 Article I, Section 9 of the Constitution
states that “No Money shall be drawn from the Treasury, but in Consequence of
Appropriations made by Law.” Federal employees and contractors cannot be paid,
for example, if appropriations have not been enacted. It would still be possible under
the Constitution, nevertheless, for the government to make contracts or other
CRS Report RS20348, Federal Funding Gaps: A Brief Overview, by Robert Keith. Some
observers use alternative terms “lapse in appropriations” and “appropriations hiatus” instead
of “funding gap.”
Ibid. These funding gaps occurred before the Department of Justice issued opinions in
1980 and 1981 about allowable agency activities during a funding gap. The opinions, which
are discussed later, were restrictive in their implications about allowable agency activities
compared to what agencies had done in the past during a funding gap.
For legal analysis of funding gaps, see U.S. Government Accountability Office (formerly
the General Accounting Office; hereafter “GAO”), Principles of Federal Appropriations
Law, 3rd ed., vol. II, GAO-06-382SP, Feb. 2006, ch. 6, pp. 6-146 - 6-159.
obligations if it lacked funds to pay for these commitments.7 The so-called
Antideficiency Act prevents this, however. The act prohibits federal officials from
obligating funds before an appropriations measure has been enacted, except as
authorized by law.8 The act also prohibits acceptance of voluntary services and
employment of personal services exceeding what has been authorized by law.9
Exceptions are made under the act to the latter prohibition for “emergencies
involving the safety of human life or the protection of property.” Therefore, the
Antideficiency Act generally prohibits agencies from continued operation in the
absence of appropriations. Failure to comply with the act may result in criminal
sanctions, fines, and removal.
For years, many federal agencies continued to operate during a funding gap,
while “minimizing all nonessential operations and obligations, believing that
Congress did not intend that agencies close down” while waiting for the enactment
of annual appropriations acts or continuing resolutions.10 In 1980 and 1981,
however, Attorney General Benjamin R. Civiletti issued two opinions that more
strictly interpreted the Antideficiency Act in the context of a funding gap, along with
its exceptions.11 The opinions stated that, with some exceptions, the head of an
agency could avoid violating the Antideficiency Act only by suspending the agency’s
operations until the enactment of an appropriation. In the absence of appropriations,
exceptions would be allowed only when there is “some reasonable and articulable
connection between the function to be performed and the safety of human life or the
protection of property.”
In 1990, in response to the 1981 Civiletti opinion, Congress amended 31 U.S.C.
§ 1342 to clarify that “the term ‘emergencies involving the safety of human life or the
protection of property’ 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.”12 DOJ’s Office of Legal Counsel (OLC) issued a
memorandum in 1995 that interpreted the effect of the amendment (hereafter, “1995
For discussion, see prepared statement of Walter Dellinger, Assistant Attorney General,
in U.S. Congress, Senate Committee on the Budget and House Committee on the Budget,
Effects of Potential Government Shutdown, hearing, 104th Cong., 1st sess., Sept. 19, 1995,
S.Hrg. 104-175 (Washington: GPO, 1995), p. 18 (hereafter Effects of Potential Government
31 U.S.C. § 1341. The Antideficiency Act (31 U.S.C. §§ 1341-1342, §§ 1511-1519) is
discussed in CRS Report RL30795, General Management Laws: A Compendium,
coordinated by Clinton T. Brass, pp. 93-97. GAO provides information on the act, available
31 U.S.C. § 1342; see also § 1515.
U.S. GAO, Funding Gaps Jeopardize Federal Government Operations, PAD-81-31, Mar.
3, 1981, pp. i, 2.
43 Op. Att’y Gen. 224 (Apr. 25, 1980), 43 Op. Att’y Gen. 293 (Jan. 16, 1981). The
Civiletti opinions are included in a GAO report as Appendices IV and VIII. See U.S. GAO,
Funding Gaps Jeopardize Federal Government Operations. For discussion of exceptions,
see U.S. GAO, Principles of Federal Appropriations Law, pp. 6-146 - 6-159.
Ibid., p. 6-151, citing P.L. 101-508, 104 Stat. 1388, at 1388-621.
OLC opinion”).13 The 1995 OLC opinion said one aspect of the 1981 Civiletti
opinion’s description of emergency governmental functions should be modified in
light of the amendment, but that the 1981 opinion otherwise “continues to be a sound
analysis of the legal authorities respecting government operations” during a funding
OMB and Agency Shutdown Processes
The Office of Management and Budget (OMB) provides agencies with annual
instructions on how to prepare for and operate during a funding gap in Circular No.
A-11.15 The circular cites the two Civiletti opinions and the 1995 OLC opinion as
“background” and “guidance.” The circular establishes two “policies” regarding the
absence of appropriations: (1) a prohibition on incurring obligations unless the
obligations are otherwise authorized by law and (2) permission to incur obligations
“as necessary for orderly termination of an agency’s functions,” but prohibition of
any disbursement (i.e., payment).
The circular also directs agency heads to develop and maintain shutdown plans,
which are to be submitted to OMB when initially prepared and also when revised.
Agency heads are to use the DOJ opinions and the circular to “decide what activities
are essential to operate their agencies during an appropriations hiatus.” Among other
things, a shutdown plan is required to include
an estimate of the time to complete the shutdown, to the nearest halfday;
the number of employees expected to be on-board (i.e., filled
positions) before implementation of the plan;
the total number of employees to be “retained” under the plan (i.e.,
not subject to furlough), broken out into two categories: (1)
employees “engaged in military, law enforcement, or direct
provision of health care activities” and (2) employees whose
“compensation is financed by a resource other than annual
the total number of additional employees who will be retained, in
order to protect life and property, who are not “exempt” from
furlough because of the two previous criteria, above.
U.S. Department of Justice, Office of Legal Counsel, Government Operations in the Event
of a Lapse in Appropriations, memorandum from Walter Dellinger, Assistant Attorney
General, for Alice Rivlin, Director, Office of Management and Budget, Aug. 16, 1995,
reprinted in Effects of Potential Government Shutdown, pp. 77-85.
Ibid., p. 78.
U.S. Executive Office of the President, Office of Management and Budget (hereafter,
“OMB”), Circular No. A-11: Preparation, Submission, and Execution of the Budget, June
2008, Sec. 124, available at [http://www.whitehouse.gov/omb/circulars/a11/current_year/
a11_toc.html]. See also CRS Report RS21665, Office of Management and Budget (OMB):
A Brief Overview, by Clinton T. Brass.
In general, the circular refers to employees who are to be furloughed as “released,”
and employees who will not be furloughed as “retained” or “exempt.”16 OMB’s
circular also instructs agencies to take personnel actions to release employees
according to applicable law and Office of Personnel Management (OPM)
OMB documents and guidance from previous funding gaps and shutdowns may
provide insights into current and future practices. OPM has recommended on a
website that agencies use OMB guidelines to determine “excepted” positions (i.e.,
those not subject to furlough) and provided retyped copies of previous OMB bulletins
and memoranda for reference.18 These and other OMB documents also have been
reproduced in several legislative branch documents.19
Effects of a Federal Government Shutdown
Effects on Federal Officials and Employees. Effects of a shutdown may
occur in anticipation of a funding gap (e.g., planning), during a gap (furlough and
In congressional hearings that focused on the first FY1996 shutdown, some witnesses
expressed regret that the terms “nonessential” and “essential” had been used to describe
employees subject to furlough, and not subject to furlough, respectively. Use of the term
“nonessential” was demeaning, they suggested. See U.S. Congress, House Committee on
Government Reform and Oversight, Subcommittee on Civil Service, Government Shutdown
I: What’s Essential?, hearings, 104th Cong., 1st sess., Dec. 6 and 14, 1995 (Washington:
GPO, 1997) (hereafter, Government Shutdown: What’s Essential?), pp. 48, 228-229.
OPM maintains a website with guidance, historical OMB documents, and frequently asked
questions about furloughs, available at [http://www.opm.gov/furlough/furlough.asp].
See ibid. The reproduced OMB documents include, in chronological order:
(1) OMB Bulletin No. 80-14, Shutdown of Agency Operations Upon Failure by the
Congress to Enact Appropriations, Aug. 28, 1980 (citing the 1980 Civiletti opinion and
requiring agencies to develop shutdown plans);
(2) OMB Memorandum, Agency Operations in the Absence of Appropriations, Nov.
17, 1981 (referencing OMB Bulletin No. 80-14; saying the 1981 Civiletti opinion remains
in effect; and providing examples of “excepted activities” that may be continued under a
(3) OMB Bulletin No. 80-14, Supplement No. 1, Agency Operations in the Absence
of Appropriations, Aug. 20, 1982 (“updating” OMB Bulletin No. 80-14 and newly requiring
agencies to submit contingency plans for review by OMB);
(4) OMB Memorandum M-91-02, Agency Operations in the Absence of
Appropriations, Oct. 5, 1990 (referencing OMB Bulletin No. 80-14; stating that OMB
Bulletin No. 80-14 was “amended” by the OMB Memorandum of Nov. 17, 1981; saying the
1981 Civiletti opinion remains in effect; and directing agencies on a Friday how to handle
a funding gap that begins during the weekend); and
(5) OMB Memorandum M-95-18, Agency Plans for Operations During Funding
Hiatus, Aug. 22, 1995 (referencing OMB Bulletin No. 80-14, as amended; citing the 1981
Civiletti opinion; transmitting to agencies the 1995 OLC opinion as an “update” to the 1981
Civiletti opinion; and directing agencies to send updated contingency plans to OMB).
See Effects of Potential Government Shutdown, pp. 77-85; U.S. GAO, Funding Gaps
Jeopardize Federal Government Operations, Appendices V, VI, and VII; and Government
Shutdown: What’s Essential?, pp. 99-112, 121-131, and 428-430.
curtailed operations), and afterwards (e.g., reducing backlogs of work). An
immediate shutdown effect is the “shutdown furlough” of certain federal employees
(i.e., placement in a temporary, nonduty, nonpay status).20 Several types of officials
and employees are not subject to furlough. These include Members of Congress, the
President, presidential appointees, certain legislative branch employees, and federal
employees deemed “excepted.”21 “Excepted” employees, who are required to work
during a shutdown, are described as “employees who are excepted from a furlough
by law because they are (1) performing emergency work involving the safety of
human life or the protection of property, (2) involved in the orderly suspension of
agency operations, or (3) performing other functions exempted from the furlough.”22
Shutdown furloughs are not considered a break in service and are generally creditable
for retaining benefits and seniority. Also, federal employees who have been affected
by shutdowns historically have received their salaries retroactively.23
As noted earlier, the two most recent shutdowns occurred in FY1996.24 The
first, which lasted five full days between November 13-19, 1995, resulted in the
furlough of an estimated 800,000 federal employees. It was caused by the expiration
of a continuing resolution agreed to on September 30, 1995 (P.L. 104-31), and by
President Clinton’s veto of a second continuing resolution and a debt limit extension
bill. The second FY1996 partial shutdown of the federal government, and the longest
in history, lasted 21 full days between December 15, 1995, and January 6, 1996. The
shutdown was triggered by the expiration of a continuing funding resolution enacted
on November 20, 1995 (P.L. 104-56), which funded the government through
December 15, 1995. On January 2, 1996, the estimate of furloughed federal
employees was 284,000.25 Another 475,000 excepted federal employees continued
to work in nonpay status. There were several short-term continuing resolutions
between January 6, 1996, and April 26, 1996, when the Omnibus Consolidated
Rescissions and Appropriations Act of 1996 (P.L. 104-134) was enacted to fund any
agencies or programs not yet funded through FY1996.
Examples of Excepted Activities and Personnel.
determinations of excepted activities and personnel would not necessarily hold for
any future shutdown. However, past experience may inform future OMB and agency
For additional discussion, including the status of legislative branch agencies and
personnel, see ibid. and U.S. GAO, Principles of Federal Appropriations Law, pp. 6-149 6-150.
For example, for the FY1996 shutdowns, affected employees were guaranteed to be paid
retroactively by provisions in continuing resolutions (P.L. 104-56, Sec. 124, which itself was
continued in P.L. 104-94), but did not receive compensation until funding for their agencies
This paragraph draws on CRS Report 95-906, Shutdown of the Federal Government:
Effects on the Federal Workforce And Other Sectors, by James P. McGrath (Sept. 25, 1997,
archived; available upon request).
Fewer employees, agencies, and programs were affected because some funding bills were
enacted during the period between the two shutdowns.
decisions. An OMB memorandum of November 17, 1981, from Director David A.
Stockman to the heads of executive agencies, identified “examples of excepted
activities.”26 The memorandum, which still was in effect for the FY1996 shutdowns,
Beginning [on the first day of the appropriations hiatus], agencies may continue
activities otherwise authorized by law, those that protect life and property and
those necessary to begin phasedown of other activities. Primary examples of
activities agencies may continue are those which may be found under applicable
1. Provide for the national security, including the conduct of foreign relations
essential to the national security or the safety of life and property.
2. Provide for benefit payments and the performance of contract obligations
under no-year or multi-year or other funds remaining available for those
3. Conduct essential activities to the extent that they protect life and property,
a. Medical care of inpatients and emergency outpatient care;
b. Activities essential to ensure continued public health and safety,
including safe use of food and drugs and safe use of hazardous materials;
c. The continuance of air traffic control and other transportation safety
functions and the protection of transport property;
d. Border and coastal protection and surveillance;
e. Protection of Federal lands, buildings, waterways, equipment and
other property owned by the United States;
Care of prisoners and other persons in the custody of the United
g. Law enforcement and criminal investigations;
h. Emergency and disaster assistance;
Activities essential to the preservation of the essential elements of the
money and banking system of the United States, including borrowing and
tax collection activities of the Treasury;
Activities that ensure production of power and maintenance of the
power distribution system; and
k. Activities necessary to maintain protection of research property.
You should maintain the staff and support services necessary to continue these
Effects on the Public. The effects of the two FY1996 shutdowns on
government activities and the public received extensive attention. Although the
effects on the public of any future shutdown would not necessarily reflect past
experience, past events may be illustrative of effects that are possible.27 Several
OMB Memorandum, Agency Operations in the Absence of Appropriations, Nov. 17, 1981.
In 1981, GAO developed a “hypothetical case” of the possible effects of a 30-day
government-wide funding gap and shutdown, which the agency characterized as
“unthinkable.” After the release of the first Civiletti opinion concerning compliance with
the Antideficiency Act, GAO characterized the opinion as “fundamentally alter[ing] the
environment in which Federal agencies must prepare for a period of expired appropriations.”
Previously, interpretation of the Antideficiency Act had been much less strict. The results
examples follow that were reported in congressional hearings, news media, and
Health. New patients were not accepted into clinical research at the
National Institutes of Health (NIH) clinical center; the Centers for
Disease Control and Prevention ceased disease surveillance; hotline
calls to NIH concerning diseases were not answered; and toxic waste
clean-up work at 609 sites reportedly stopped and resulted in 2,400
Superfund workers being sent home.29
Law Enforcement and Public Safety. Delays occurred in the
processing of alcohol, tobacco, firearms, and explosives applications
by the Bureau of Alcohol, Tobacco, and Firearms; work on more
than 3,500 bankruptcy cases reportedly was suspended; cancellation
of the recruitment and testing of federal law-enforcement officials
reportedly occurred, including the hiring of 400 border patrol agents;
and delinquent child-support cases were delayed.30
Parks, Museums, and Monuments. Closure of 368 National Park
Service sites (loss of 7 million visitors) reportedly occurred, with
loss of tourism revenues to local communities; and closure of
national museums and monuments (reportedly with an estimated loss
of 2 million visitors) occurred.31
Visas and Passports. Approximately 20,000-30,000 applications
by foreigners for visas reportedly went unprocessed each day;
200,000 U.S. applications for passports reportedly went
unprocessed; and U.S. tourist industries and airlines reportedly
sustained millions of dollars in losses.32
of GAO’s illustrative survey are available in U.S. GAO, Funding Gaps Jeopardize Federal
Government Operations, pp. 48-56.
The examples are drawn from more extensive discussion in CRS Report 95-906,
Shutdown of the Federal Government: Effects on the Federal Workforce And Other Sectors,
by James P. McGrath. Many of the examples come from agency accounts in congressional
hearings after the first FY1996 shutdown (see Government Shutdown: What’s Essential?)
and media accounts during and after the second shutdown.
Government Shutdown: What’s Essential?, p. 23; and Stephen Barr and Frank Swoboda,
“Jobless Aid, Toxic Waste Cleanup Halt,” Washington Post, Jan. 3, 1996, p. A1.
Government Shutdown: What’s Essential?, pp. 62, 228; and Stephen Barr and David
Montgomery, “At Uncle Sam’s No One Answers,” Washington Post, Nov. 16, 1995, p. A1.
Dan Morgan and Stephen Barr, “When Shutdown Hits Home Ports,” Washington Post,
Jan. 8, 1996, p. A1.
Thomas W. Lippman, “Inconvenience Edges Toward Emergency,” Washington Post, Jan.
3, 1996, p. A11.
American Veterans. Multiple services were curtailed, ranging from
health and welfare to finance and travel.33
Federal Contractors. Of $18 billion in Washington, DC, area
contracts, $3.7 billion (over 20%) reportedly were affected adversely
by the funding lapse; the National Institute of Standards and
Technology (NIST) was unable to issue a new standard for lights
and lamps that was scheduled to be effective January 1, 1996,
possibly resulting in delayed product delivery and lost sales; and
employees of federal contractors reportedly were furloughed without
Effects on Mandatory Spending Programs. Programs that are funded
by laws other than annual appropriations acts — for example, some entitlement
programs — may, or may not, be affected by a funding gap. Specific circumstances
appear to be significant. For example, although the funds needed to make payments
to beneficiaries may be available automatically, pursuant to permanent
appropriations, the payments may be processed by employees who are paid with
funds provided in annual appropriations acts. In such situations, the question arises
whether a mandatory program can continue to function during a funding gap, if
appropriations were not enacted to pay salaries of administering employees.
According to the 1981 Civiletti opinion, at least some of these employees would not
be subject to furlough, because authority to continue administration of a program
could be inferred from Congress’s direction that benefit payments continue to be
made according to an entitlement formula.35 That is, obligating funds for the salaries
of these personnel would be excepted from the Antideficiency Act’s restrictions
during a funding gap. However, such a determination would depend upon the
absence of contrary legislative history in specific circumstances.
Nevertheless, the experience of the Social Security Administration (SSA) during
the FY1996 shutdowns illustrates what might happen over a period of time in these
situations. The lack of funds for some employees’ salaries, for example, may
impinge eventually on the processing and payment of new entitlement claims. SSA’s
administrative history describes how 4,780 employees were allowed to be retained
during the initial stages of the first shutdown.36 The majority of these employees
were “in direct service positions to ensure the continuance of benefits to currently
enrolled Social Security, SSI and Black Lung beneficiaries.” Avoidance of furloughs
Government Shutdown: What’s Essential?, pp. 115-117.
Peter Behr, “Contractors Face Mounting Costs from Government Shutdowns,”
Washington Post, Jan. 23, 1996, p. C1; Government Shutdown: What’s Essential?, p. 270;
and Peter Behr, “Latest Federal Shutdown Hits Contractors Hard,” Washington Post, Dec.
22, 1995, p. D1.
1981 Civiletti opinion, reprinted in U.S. GAO, Funding Gaps Jeopardize Federal
Government Operations, p. 82 (footnote 7). For discussion, see U.S. GAO, Principles of
Federal Appropriations Law, pp. 6-149 - 6-150.
See SSA’s “History of SSA 1993 - 2000,” Ch. 5, available at [http://www.ssa.gov/
was possible, because “appropriations were available to fund the program costs of
paying benefits, [which] implied authority to incur obligations for the costs necessary
to administer those benefits.” SSA furloughed its remaining 61,415 employees.
Before long, however, SSA and OMB reconsidered. SSA had not retained staff to,
among other things, respond to “telephone calls from customers needing a Social
Security card to work or who needed to change the address where their check should
be mailed for the following month.” SSA then advised OMB that the agency would
need to retain 49,715 additional employees for direct service work, including the
processing of new claims for Social Security benefits. Further adjustments were
made during the considerably longer second shutdown, in response to increasing
difficulties in administering the agency’s entitlement programs.
Potential Issues for Congress
Quality and Specificity of Agency Planning. In December 1995,
Representative John L. Mica, chairman of the Subcommittee on Civil Service of the
House Committee on Government Reform and Oversight, convened a hearing that
focused on the first FY1996 shutdown and potential implications for the future.37
Among other things, then-Chairman Mica raised concerns about the shutdown’s
planning and execution by agencies and OMB, saying “the execution of the shutdown
was, in many instances, disorganized and illogical, at best, and oftentimes chaotic
experience.”38 As an example, he cited the “recall of more than 50,000 Social
Security personnel [three days into the furlough], raising questions about whether
they should have been furloughed in the first place.”39 In addition, then-Ranking
Member James P. Moran expressed interest in clarifying the distinction between
exempt and nonexempt activities and employees. If similar issues were currently of
concern, Congress might consider lawmaking and oversight options related to the
quality and specificity of agency shutdown planning.
Availability of Agency Shutdown Plans. OMB’s Circular No. A-11
requires executive agencies to submit to OMB “plans for an orderly shutdown in the
event of the absence of appropriations” when the plans are either first prepared or
later revised.40 OMB has required the development and maintenance of these
shutdown plans since 1980. It is not clear, however, the extent to which agency
shutdown plans have been made publicly available or systematically shared with
Congress and agency stakeholders for feedback. Scrutiny over agency shutdown
plans may provide incentives for agencies to improve the quality of the plans, should
it become necessary at some point for agencies to execute the plans, and may inform
budget policy debates about the potential impacts of shutdowns. On the other hand,
such inquiries may distract agency personnel from other duties and raise sensitive
issues regarding what activities and employees should be considered exempt from
Antideficiency Act restrictions.
See Government Shutdown: What’s Essential?, pp. 1-3.
Ibid., p. 2.
OMB, Circular No. A-11: Preparation, Submission, and Execution of the Budget, June
2008, Sec. 124, p. 1.