Yesterday — for the eighth time since late September — the U.S. Senate failed to invoke cloture on a short-term continuing resolution (CR). As such, today marks the 15th day of the federal government shutdown, and there’s no apparent end in sight.
Before the shutdown, President Donald Trump indicated he could use a funding stalemate to make permanent agency staff reductions. Since then, he’s begun to make good on that promise. Hundreds of thousands of federal workers will get their last paycheck starting this week and, starting late last week, the Trump administration began making permanent layoffs. Last Friday, Office of Management and Budget Director (OMB) Russell Vought took to social media last Friday to declare, “The RIFs have begun.” (RIF stands for “reductions in force.”)
Where does the president say he gets the authority to make these cuts? What agencies already have been reduced, and what actions are likely to come next?
Let’s take a look.
What Authority Allows the President to Fire Federal Employees En Masse?
As the newsletter Law Commentary stated yesterday, “The practice of firing employees during a funding lapse has no precedent in modern shutdowns.”
In fact, it is somewhat unclear what law the Trump administration is using to justify these permanent layoffs. A pre-shutdown memo issued in September by the OMB and the Office of Personnel Management (OPM) that instructed federal agencies to prepare for RIFs said the instructions “should be read with” general guidance from the OMB and OPM “for administering an agency shutdown of operations due to a lapse in appropriations, consistent with the Antideficiency Act (ADA) and the pay, leave, and other relevant statutory authorities that apply to lapse-affected employees.” But that statement is hardly a direct citation of authority.
The ADA is a federal law that prevents U.S. government agencies from spending or obligating funds in advance of or in excess of appropriations, and also prohibits them from accepting voluntary services unless authorized by law. The Trump administration simply has suggested that, under the ADA, programs whose funding has lapsed are no longer statutorily required to be carried out, and therefore employees who work for those programs can be eliminated.
Not surprisingly, Democrats disagree. In fact, they say permanent layoffs run directly counter to what the ADA allows.
“[A] temporary lapse in appropriations does not repeal an agency’s statutory duties or obligations,” Democrats on the U.S. House Committee on the Budget argued in a fact sheet released last week. “The president does not have the authority to unilaterally end programs that he disagrees with. That power — the power of the purse — lies with Congress.”
Democrats argued the RIFs are in “direct violation” of the ADA because “agencies would need to compile a list of employees to fire and send 60-day RIF notices to those employees” and “the work this would require does not fall under any of the exceptions for continuing during a lapse in appropriations.”
In other words, firing a federal employee is not the type of emergency act that is allowed despite the rest of the federal government being shut down. “Agency leaders who direct this work and Human Resources employees who conduct this work run the risk of being prosecuted under the Antideficiency Act, which could result in fines or imprisonment,” the Democrats’ concluded.
The Trump administration’s assertion of this authority already is being challenged in court. Indeed, today U.S. District Judge Susan Illston is scheduled to hear preliminary arguments in a case brought by the American Federation of Government Employees (AFGE) and the American Federation of State, County and Municipal Employees (AFSCME) that, together, represent more than 800,000 federal workers. As National Public Radio explained, the labor unions have asked the judge for a temporary restraining order to pause the implementation of layoffs already underway and to block any additional layoff notices from being sent out.
What Federal Workers Has the Trump Administration Already Fired?
The Trump administration’s staff reductions have not hit every federal agency equally. For example, it does not appear that any employees at the U.S. Department of Transportation have been fired. (That scenario could change, of course.)
Other employees, programs, and agencies have not been so lucky, including:
- 1,300 employees at the U.S. Department of the Treasury, including hundreds of workers at the Internal Revenue Service;
- 176 U.S. Department of Homeland Security, including “many employees” working in the Cybersecurity Infrastructure Security Agency (CISA);
- Federal biodefense experts;
- 315 employees at the U.S. Department of Commerce;
- Between 982 and 1,760 National Institutes of Health workers (the number is uncertain because the Trump administration may have fired more people than it intended to);
- 442 U.S. Department of Housing and Urban Development employees, including 103 from the Office of Public and Indian Housing, 36 from Housing Counseling, 50 from Housing Operations, 114 from Fair Housing and Equal Opportunity, and 30 from Community Planning and Development;
- The CDC’s National Center for Injury Prevention and Control overdose division, which, among other things, tracks data on opioid overdoses;
- A federal program that reimbursed hospitals for remotely monitoring thousands of seriously ill patients at home; and
- 466 U.S. Department of Education workers from offices that oversee special education programs and civil rights enforcement and that provide services to Historically Black Colleges and Universities.
Republican lawmakers had warned the White House not to move forward with these staff reductions. According to Politico, Sen. Susan Collins, the GOP chair of the Senate Appropriations Committee, criticized the move, warning “arbitrary layoffs” would undermine federal agencies, especially as the shutdown continues with no end in sight.
In the meantime, President Trump also is working to soften the blow to employees who are still working, but without getting paychecks. The commander-in-chief has promised to find money pay members of the U.S. military, for example. OMB also is reportedly examining mechanisms to provide pay for federal law enforcement officers. (Additionally, the White House plans to use revenue from the president’s national security tariffs to keep the Special Supplemental Nutrition Program for Women, Infants, and Children afloat.)
Other employees, like air traffic controllers and Transportation Security Administration employees, will continue to work without pay since they have been deemed “essential” and have not been furloughed. Many air traffic controllers are choosing not to come to work instead of toiling away for free, however, and their absences have affected air travel. Last week, U.S. Transportation Secretary Sean Duffy noted, “Normally, about five percent of flight delays are because of staffing shortages. In the last few days, that number has jumped to 53 percent because of understaffing.”
Meanwhile, and by contrast, members of Congress will continue to receive their paychecks. Their staffs, however, will not.
The federal workforce is not all the Trump administration is cutting. As The New York Times reported this morning, the White House also is withholding funds for transportation and energy projects that Congress already has approved.
How Long With This Shutdown Last?
An article in The Hill this morning suggested that Republicans have set “the stage for an extended shutdown.”
“It increasingly looks like the fight could drag into November and challenge the longest shutdown on record — a 35-day lapse in funding that lasted from late 2018 to 2019 over President Trump’s insistence for border wall funding,” The Hill wrote. Sen. Shelley Moore Capito agreed with that assessment. “That’s what I’m thinking,” she told The Hill, while adding, “I hope I’m wrong.”
U.S. House Speaker Mike Johnson (R-La.) has continued his policy of keeping House GOP lawmakers out of Washington, D.C. In fact, it has been nearly a month since members of the lower chamber of Congress have voted on anything. “We’re barreling toward one of the longest shutdowns in American history, unless Democrats drop their partisan demands and passed a clean, no-strings-attached budget to reopen the government and pay our federal workers,” he told The Hill.
The White House certainly is making moves toward a long shutdown.
According to a Politico report from yesterday, President Trump plans to announce a new list of programs to cut this Friday should the government shutdown drag on through the end of the week. While the President did not say which programs would be affected, he argued the shutdown allows him the chance to eliminate “the most egregious, socialist, semi communist, probably not full communist,” programs that Democrats support.
No sign is more telling than this one, however: on social media yesterday, OMB posted a message that said it “is making every preparation to batten down the hatches.”