The National Treasury Employees Union has filed a second lawsuit over the shutdown which alleges that the federal statue allowing some federal employees to be required to work without pay during a partial government shutdown is unconstitutional.
“If employees are working, they must be paid—and if there is not money to pay them, then they should not be working,” said NTEU National President Tony Reardon.
The lawsuit alleges that the Antideficiency Act violates the Appropriations Clause of the Constitution, which does not allow the government to obligate funds that have not been appropriated by Congress.
NTEU’s lawsuit also argues that even if the Antideficiency Act is constitutional, the Office of Management and Budget directive that authorizes federal agencies to except employees from furlough is inconsistent with the Antideficiency Act. According to NTEU, that directive, issued in connection with the January 2018 shutdown, has illegally authorized agencies to designate broad swaths of employees as excepted employees, which is at odds with the narrower language in the Antideficiency Act about imminent threats to human life and property.
One example NTEU points to in its press release about the lawsuit is employees at the IRS – NTEU says that these employees’ jobs involve “the regular functions of government unrelated to protecting human life,” yet the agency is about to call thousands of federal workers at IRS back to work in order to issue tax refunds during the partial government shutdown.
“While a case can certainly be made that some federal employees, such as Customs and Border Protection Officers and others, are protecting human life and property, that line of reasoning gets quite shaky when applied to thousands of IRS employees being called back in order to process tax refunds—and to do so without being paid,” Reardon said. “That is not how the law works and that is not how this country should work.”
NTEU filed another lawsuit earlier this week alleging that it is a violation of the Fair Labor Standards Act to require some federal employees to work without pay.