Who Invented Government Shutdowns?

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By on January 19, 2018 in Q&A with 0 Comments

Illustration of the Capitol building in Washington, DC with the words 'government shutdown' written over it

Federal government “shutdowns” did not exist before 1980. That is not because there were times when money had not been appropriated by Congress for the government to continue operating. That was, and still is, a fairly common occurrence.

But, when there was a time when money had not been appropriated, government employees still went to work, still got paid (usually a little late until funds were approved) and the situation was resolved without all the political drama we have invented since 1980.

The man who invented the shutdown? Benjamin Civiletti.

Civiletti was the attorney general for President Jimmy Carter.

Benjamin Civiletti pictured at his desk at the Justice Department in 1978

Benjamin Civiletti, 1978
Photo credit: University of Maryland School of Law

He determined that the president’s request for a legal opinion on the issue “apparently represents the first instance in which this Department has been asked formally to address the problem as a matter of law.” Perhaps this is a good example of when it makes sense not to ask for a legal opinion but to continue going on as had been done for the past 100 years.

The legal basis for the newly discovered legal requirement was based on an 1870 law—the Antideficiency Act of 1870. He concluded: “On its face, the plain and unambiguous language of the Antideficiency Act prohibits an agency from incurring pay obligations once its authority to expend appropriations lapses.”

He concluded the only legitimate use for government funds once appropriations expire is for an “orderly termination”. This is why federal employees go into work for a short time as soon as the shutdown begins.

In a second legal opinion, he clarified his “either exists or it does not” rule. He concluded that the president has the constitutional “leeway to perform essential functions and make the government ‘workable’ ”. This is apparently the reason for essential and nonessential workers.

How to Resolve the Immediate Problem

The shutdown scenario with which we have become so familiar is based on a legal opinion of the US Attorney General. Presumably, the current US Attorney General could issue a different opinion that concludes the shutdown requirement, first “discovered” in 1980, was in error.

Whether the current Attorney General, Jeff Sessions, would reach the same conclusion is unknown. But, as the system worked well for 110 years without all the political drama, a reasonable person may conclude it was not the intent of Congress in the late 1800’s to create such a draconian system.

Politics and a Government Shutdown

The reality is that a shutdown provides political leverage. Politicians get to expound on national television on which party is “right” and which party is “wrong” in their budget priorities. It makes our politics more divisive than is necessary. It certainly does not create a more efficient government. And, as many FedSmith readers have recounted, it creates hardship and inconvenience for many federal workers.

Civiletti Memo on Government Shutdowns by FedSmith Inc. on Scribd

© 2020 Ralph R. Smith. All rights reserved. This article may not be reproduced without express written consent from Ralph R. Smith.


About the Author

Ralph Smith has several decades of experience working with federal human resources issues. He has written extensively on a full range of human resources topics in books and newsletters and is a co-founder of two companies and several newsletters on federal human resources. Follow Ralph on Twitter: @RalphSmith47