The Law and Practice of Government Shutdowns in the United States

Abstract

This article analyzes the legal rules governing operations of the federal government of the United States during lapses of appropriations (commonly known as government shutdowns). After briefly explaining what government shutdowns are and when they happen, it presents the main sources of the applicable law, starting with its statutory basis – the Antideficiency Act. After analyzing the history, purpose, and text of that statute, the article presents two official opinions of the Attorney General which interpreted the Act to require suspension of non‑essential government operations during funding gaps. The article then proceeds to delineate statutory and implied exceptions to that requirement. Its second part consists of an analysis of actual administration practice during shutdowns. On the basis of agency contingency plans posted during the 2013 shutdown, it identifies the government activities that continued despite the shutdown, and briefly describes each activity’s scale and the legal basis for it being exempt from the generally applicable rules. It concludes that while there have been disputes about the administration’s handling of the shutdown, the agency’s practice was generally consistent with the legal rules, though the statutory framework itself would benefit from congressional revision and clarification.