Professional Documents
Culture Documents
Clinton T. Brass
Analyst in Government Organization and Management
Summary
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.
For background on funding gaps, see CRS Report RS20348, Federal Funding Gaps: A Brief
Overview, by Robert Keith.
Contents
Budget Negotiations and Choices ................................................................................................1
Causes of Federal Shutdowns......................................................................................................2
OMB and Agency Shutdown Processes .......................................................................................3
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 .............................................................................8
Potential Issues for Congress.......................................................................................................9
Quality and Specificity of Agency Planning ..........................................................................9
Availability of Agency Shutdown Plans.................................................................................9
Contacts
Author Contact Information ...................................................................................................... 10
This report discusses the causes of funding gaps and shutdowns of the federal government, 4
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.
1
Justin Murray, Information Research Specialist in the Knowledge Services Group, provided research support for this
report. This report updates and supersedes CRS Report RL34680, Shutdown of the Federal Government: Causes,
Processes, and Effects, by Clinton T. Brass.
2
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.
3
For discussion, see CRS Report RL32614, Duration of Continuing Resolutions in Recent Years, by Jessica Tollestrup.
For analysis of the potential functions and impacts of CRs, see CRS Report RL30343, Continuing Resolutions: Latest
Action and Brief Overview of Recent Practices, by Sandy Streeter; and CRS Report RL34700, Interim Continuing
Resolutions (CRs): Potential Impacts on Agency Operations, by Clinton T. Brass. For more detailed discussion of the
potential impacts of CRs, see 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.
4
The report focuses on funding gaps and shutdowns that are associated with annual appropriations acts. It does not
focus on funding gaps and shutdowns that may occur when a specific program or agency is funded by legislation other
than annual appropriations acts, but the statutory authorization for the program or agency expires. Nevertheless, these
“expired authorization” shutdowns are similar in many ways to broader “annual appropriations” shutdowns. An
example of an expired authorization shutdown occurred in early 2010, when authorization for certain surface
transportation programs and trust funds expired after 11:59 p.m. on February 28, 2010. The expiration caused a lapse in
authority to expend funds that, among other things, affected certain construction projects on federal lands and required
nearly 2000 U.S. Department of Transportation employees to be furloughed. On March 2, 2010, P.L. 111-144
reauthorized these activities (124 Stat. 45). On April 15, P.L. 111-157 provided compensation to furloughed federal
employees and ratified retroactively all “essential actions” taken during the lapse by federal employees, contactors, and
grantees to “protect life and property and to bring about orderly termination of Government functions” (124 Stat.
1118).
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.6 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 similar funding gaps since FY1996.
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.7 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
obligations if it lacked funds to pay for these commitments.8 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. 9 The act also prohibits
5
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.”
6
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.
7
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, February 2006,
ch. 6, pp. 6-146 - 6-159.
8
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., September 19, 1995, S.Hrg. 104-175 (Washington: GPO, 1995), p. 18 (hereafter Effects of
Potential Government Shutdown).
9
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, by Clinton T. Brass et al., pp. 93-97. GAO provides
information on the act, available at http://www.gao.gov/ada/antideficiency.htm.
acceptance of voluntary services and employment of personal services exceeding what has been
authorized by law. 10 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. 11 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.12 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.”13 DOJ’s Office of
Legal Counsel (OLC) issued a memorandum in 1995 that interpreted the effect of the amendment
(hereafter, “1995 OLC opinion”). 14 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 gap.15
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
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.19 These and other OMB
documents also have been reproduced in several legislative branch documents.20
17
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., December 6 and 14, 1995 (Washington: GPO, 1997) (hereafter, Government Shutdown:
What’s Essential?), pp. 48, 228-229.
18
OPM maintains a website with guidance, historical OMB documents, and frequently asked questions about
furloughs, available at http://www.opm.gov/furlough/furlough.asp.
19
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,
August 28, 1980 (citing the 1980 Civiletti opinion and requiring agencies to develop shutdown plans);
(2) OMB Memorandum, Agency Operations in the Absence of Appropriations, November 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 funding gap);
(3) OMB Bulletin No. 80-14, Supplement No. 1, Agency Operations in the Absence of Appropriations, August 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, October 5, 1990 (referencing
(continued...)
As noted earlier, the two most recent shutdowns occurred in FY1996.25 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
(...continued)
OMB Bulletin No. 80-14; stating that OMB Bulletin No. 80-14 was “amended” by the OMB Memorandum of
November 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, August 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).
20
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.
21
See http://www.opm.gov/furlough/furlough.asp.
22
For additional discussion, including the status of legislative branch agencies and personnel, see ibid., U.S. GAO,
Principles of Federal Appropriations Law, pp. 6-149 - 6-150, and U.S. GAO, Letter from James F. Hinchman, GAO
General Counsel, to John J. Kominski, Library of Congress General Counsel, B-241911, October 23, 1990, at
http://archive.gao.gov/lglp2pdf23/087761.pdf.
23
See http://www.opm.gov/furlough/furlough.asp.
24
For example, for the FY1996 shutdowns, affected employees were guaranteed to be paid retroactively by provisions
in continuing resolutions (P.L. 104-56, Section 124, which itself was continued in P.L. 104-94), but did not receive
compensation until funding for their agencies was enacted.
25
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 (September 25, 1997, archived; available upon request).
15, 1995. On January 2, 1996, the estimate of furloughed federal employees was 284,000.26
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.
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 statutes to:
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 purposes.
3. Conduct essential activities to the extent that they protect life and property, including:
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;
f. Care of prisoners and other persons in the custody of the United States;
26
Fewer employees, agencies, and programs were affected because some funding bills were enacted during the period
between the two shutdowns.
27
OMB Memorandum, Agency Operations in the Absence of Appropriations, November 17, 1981.
i. 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;
j. Activities that ensure production of power and maintenance of the power distribution
system; and
You should maintain the staff and support services necessary to continue these essential
functions.
• 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. 30
• 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. 31
• Parks, Museums, and Monuments. Closure of 368 National Park Service sites
(loss of 7 million visitors) reportedly occurred, with loss of tourism revenues to
28
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 of GAO’s illustrative survey are available in U.S. GAO,
Funding Gaps Jeopardize Federal Government Operations, pp. 48-56.
29
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 (archived; available upon
request). 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.
30
Government Shutdown: What’s Essential?, p. 23; and Stephen Barr and Frank Swoboda, “Jobless Aid, Toxic Waste
Cleanup Halt,” Washington Post, January 3, 1996, p. A1.
31
Government Shutdown: What’s Essential?, pp. 62, 228; and Stephen Barr and David Montgomery, “At Uncle Sam’s
No One Answers,” Washington Post, November 16, 1995, p. A1.
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. 37 The majority of these
32
Dan Morgan and Stephen Barr, “When Shutdown Hits Home Ports,” Washington Post, January 8, 1996, p. A1.
33
Thomas W. Lippman, “Inconvenience Edges Toward Emergency,” Washington Post, January 3, 1996, p. A11.
34
Government Shutdown: What’s Essential?, pp. 115-117.
35
Peter Behr, “Contractors Face Mounting Costs from Government Shutdowns,” Washington Post, January 23, 1996,
p. C1; Government Shutdown: What’s Essential?, p. 270; and Peter Behr, “Latest Federal Shutdown Hits Contractors
Hard,” Washington Post, December 22, 1995, p. D1.
36
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.
37
See SSA’s “History of SSA 1993 - 2000,” Ch. 5, available at http://www.ssa.gov/history/ssa/ssa2000chapter5.html.
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 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.
38
See Government Shutdown: What’s Essential?, pp. 1-3.
39
Ibid., p. 2.
40
Ibid.
41
OMB, Circular No. A-11: Preparation, Submission, and Execution of the Budget, July 2010, Section 124, p. 1.
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.
Clinton T. Brass
Analyst in Government Organization and
Management
cbrass@crs.loc.gov, 7-4536