Shutdown Congress: Can They Pass Laws?

A government shutdown occurs when Congress fails to pass the 12 annual appropriation bills, causing federal agencies to cease all non-essential functions until Congress acts. During a shutdown, federal workers are furloughed and do not receive pay, while members of Congress continue to receive full pay. Essential services such as air traffic control, law enforcement, and the military continue to function, as do mandatory spending programs like Social Security and Medicare. In recent years, Congress has increasingly relied on continuing resolutions (CRs) to temporarily fund the government and avoid a shutdown. However, CRs can be difficult for agencies to manage and do not provide a long-term solution. The question of whether Congress can pass laws during a government shutdown highlights the complex dynamics between Congress, the President, and federal agencies in the budgeting process and their impact on the functioning of the government.

Congress can pass a continuing resolution to fund the government and avoid a shutdown

Congress can pass a continuing resolution (CR) to fund the government and avoid a shutdown. A CR is a temporary funding measure that allows the government to continue operating in the absence of full appropriations bills. It provides funding for all discretionary functions for a short period, often by continuing funding levels from the previous year.

To avoid a shutdown, Congress must pass the 12 appropriations bills through both chambers and get them signed by the President. However, if they are unable to do so, they can pass a CR to keep the government open. This was the case in December 2023, when the U.S. House and Senate passed a second CR to extend federal spending and prevent a shutdown through March 14, 2025.

CRs can be challenging for government agencies to manage, as they create uncertainty about funding and can disrupt agency hiring plans. They are intended to give lawmakers more time to complete their work on appropriations bills, but they can also be used to fund the government for an extended period. For example, between fiscal years 2010 and 2022, there were 47 CRs, ranging from one day to just under six months in length.

While a CR can provide temporary funding to avoid a shutdown, it is essential for Congress to pass the full appropriations bills to ensure stable and long-term funding for the government.

Congress must pass 12 appropriations bills annually, one for each subcommittee

The process involves the United States House Committee on Appropriations and the United States Senate Committee on Appropriations, both of which have twelve matching subcommittees. These subcommittees are responsible for drafting and working on one of the twelve annual regular appropriations bills. The subcommittees receive information about their spending ceilings, known as 302(b) allocations, which are derived from the federal budget.

The 12 appropriations bills can be passed individually or packaged together into an omnibus or minibus bill. If Congress fails to pass these bills or a continuing resolution (CR), which temporarily funds the government at previous funding levels, a government shutdown occurs. During a shutdown, federal agencies must stop all non-essential functions, and employees deemed non-essential are furloughed. However, essential services, such as law enforcement and air traffic control, continue to operate.

The impact of a government shutdown can be significant, causing disruptions in various areas, including delays in processing applications for passports, small business loans, or government benefits. It also affects national parks, food safety inspections, and other public services. To avoid these consequences, Congress works to pass the necessary legislation before the deadline to ensure uninterrupted funding for government operations and services.

Congress members continue to be paid during a shutdown

During a government shutdown, members of Congress continue to receive full pay while working to reach a deal to restore funding to the rest of the federal government. In the case of a federal government shutdown, members of Congress receive regular paychecks while thousands of federal employees are furloughed without pay. For example, during the 2018-19 government shutdown, more than 800,000 federal employees were furloughed without pay, but members of Congress continued to be paid.

The House and Senate must agree on and pass the same versions of the 12 appropriations bills that make up the discretionary spending budget for the next fiscal year before presenting them to the President for his signature. Congress must pass these bills and the President must sign them for federal agencies to receive funding. When Congress fails to enact these bills, federal agencies must cease all non-essential functions until Congress acts. This is known as a government shutdown.

During a shutdown, federal agencies must discontinue all non-essential discretionary functions until new funding legislation is passed and signed into law. Essential services continue to function, as do mandatory spending programs. Each federal agency develops its own shutdown plan, following guidance released in previous shutdowns and coordinated by the Office of Management and Budget (OMB). The plan identifies which government activities may not continue until appropriations are restored, requiring furloughs and the halting of many agency activities.

To avoid a shutdown, Congress can pass a continuing resolution (CR) to temporarily fund the government in the absence of full appropriations bills, often by continuing funding levels from the prior year.

The Antideficiency Act prohibits federal agencies from spending without an appropriation from Congress

The Antideficiency Act (ADA) is a law enacted by the United States Congress that prohibits federal agencies from spending or obligating any money without an appropriation (or other approval) from Congress. This includes making or authorising expenditures, creating or authorising obligations, or accepting voluntary services in advance or in excess of an appropriation. The ADA also prohibits federal agencies from entering into contracts that are not "fully funded", as this would obligate the government to provide additional funds to meet the needs of the contract.

The ADA was initially passed in 1884 and amended in 1950 to prevent the federal government from incurring obligations or making expenditures in excess of amounts available in appropriations or funds. It is now codified at 31 U.S.C. § 1341, § 1342, §§ 1349-1351, and §§ 1511-1519. The Act includes provisions that require appropriated funds to be subdivided, "apportioned", and "allocated" before they can be spent by the Executive Branch.

The ADA is often cited during government shutdowns as the reason for the closure of certain departments or facilities. A government shutdown occurs when Congress fails to enact the 12 annual appropriation bills that provide funding for federal agencies and programs. During a shutdown, federal agencies must discontinue all non-essential functions until new funding legislation is passed and signed into law.

Federal employees who violate the ADA are subject to administrative and penal sanctions, including suspension from duty without pay, removal from office, fines, and imprisonment. The Government Accountability Office, inspectors general, and individual agencies investigate potential ADA violations annually, and while no one has ever been convicted or indicted for its violation, punitive administrative actions are routinely taken against government employees.

Shutdowns can be disruptive, causing delays in passport applications, small business loans, etc

Government shutdowns occur when there is a gap in federal funding, and the government furloughs federal workers without pay. During a shutdown, federal agencies must discontinue all non-essential discretionary functions until new funding legislation is passed and signed into law.

Shutdowns can be highly disruptive to the public, causing delays in many areas. For example, during the 2018-2019 shutdown, there was a significant backlog of passport applications, with the State Department having to process 200,000 applications when normal functions resumed. The shutdown also strained air travel, with air traffic controllers and TSA agents working without pay. This resulted in longer lines and closed security checkpoints, and the absence of air traffic controllers caused delays at several major airports.

The 2018-2019 shutdown also impacted small business loans and government benefits. The Supplemental Nutrition Assistance Program (SNAP) faced challenges in sending out "food stamp" benefits, and the Internal Revenue Service (IRS) faced delays in processing tax refunds, with billions of dollars held up. The shutdown further disrupted investigations by the FBI and curtailed safety and law enforcement services.

The economic consequences of a government shutdown can be significant. The 2018-2019 shutdown cost the government around $5 billion, including $3 billion in back pay for furloughed workers and $2 billion in lost tax revenues due to reduced compliance activities by the IRS. Moreover, economic growth was reduced by billions of dollars, and sharp reductions had to be made in payments from the Supplemental Nutrition Assistance Program.

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