Administration officials now live in fear of a 19th-century law that could get them fired, penalized or even imprisoned if they make the wrong choices while the government is shut down.
The law is the Antideficiency Act,
passed by Congress in 1870 (and amended several times), which
prohibits the government from incurring any monetary obligation for
which Congress has not appropriated funds.
In shutting down the government, most memos cite the law as the reason. The Government Accountability Office
says employees who violate the Antideficiency Act may be subject to
disciplinary action, suspension and even "fines, imprisonment, or
CNBC has learned that in several executive branch
departments, high-level staff members review individual decisions about
what government activities to allow for fear of running afoul of the
Antideficiency Act. One White House official said he has advised his
employees not to check their email or cellphones. Under the act, even
volunteering for government service is expressly prohibited.
In a memo to his department employees today, Treasury Secretary Jack Lew cited the law as the reason for reduced staffing.
the duration of this impasse, as required by the Antideficiency Act and
directed by OMB, the Department will be required to operate with only
the minimal staffing level necessary to execute only certain legally
exempted activities," Lew wrote.
The only exemptions to the
shutdown concern "emergencies involving the safety of human life or the
protection of property," according to government documents. That has
meant airports and the Postal Service are open, Social Security checks
get paid and federal prisons and courts will operate as normal as do
most national security functions including the military and the Central
Intelligence Agency. But national parks and museums are closed along
with big parts of the departments of Education and Commerce
passed the law as part of a struggle—dating back to the nation's
founding—for control over the power of the purse. Some presidents, such
as Abraham Lincoln during the Civil War, would incur obligations for
which Congress had to appropriate funds after the fact.
ironic is that Congress in shutting down the government has to at least
to some extent given up the power of the purse to the executive branch.
Under the broad guidelines of what constitutes an emergency or threat
to life or property, OMB now more or less decides what gets funded and
what doesn't. But that latitude is limited by the fear of officials
that, sometime after the event, a given decision is found to have been
in violation of the Antideficiency Act.