Fact check: Which government services are exempt from shutdowns and why?

1. Why some services keep running — the legal tripod that dictates exceptions

Federal contingency plans and legal guidance consistently show that shutdown continuations rely on three distinct legal bases: excepted activities necessary to protect life and property, activities expressly authorized by statute to continue despite a lapse, and operations funded by sources other than annual appropriations, such as fees or mandatory funding. Agencies apply those criteria when deciding who is “excepted” (must work) versus “exempt” (funded outside appropriations) versus “nonexempt” (furloughed). Department and agency plans, including Department of Justice and Defense contingency documents, spell out employee counts and categories to match these legal levers, demonstrating that exemptions are legal determinations rather than ad hoc choices ^{[1] [4] [5]}.

2. What practically remains open — the services Americans most often see continued

Across reporting and agency plans, military operations, federal law enforcement, air traffic control, and emergency medical responses are repeatedly listed as excepted and thus continue during shutdowns. Benefit payments such as Social Security and Medicare generally continue because their funding is statutory or mandatory rather than subject to annual appropriations; the Postal Service and certain transportation services also operate due to alternative funding models. Agencies note that while core functions persist, administrative backlogs, delayed processing times, and reduced staffing can impair responsiveness even for continued services ^{[2] [6] [7] [8]}.

3. Agency-level differences — why the same shutdown looks different across government

Contingency plans reveal large interagency variation: the Department of Defense retained hundreds of thousands of civilian employees for protective functions while DOJ’s plan designated over 102,000 employees as excepted, representing nearly nine in ten on-board staff. By contrast, agencies like NIH and portions of CMS saw more selective retention — NIH retained about a quarter of staff while FDA retained a far larger share due to safety and regulatory imperatives. These differences reflect mission-specific judgments about what protects life and property and what statutory authorities or fee-based funding streams allow continuity ^{[5] [4] [9]}.

4. The workforce and pay dynamics — who keeps working and who gets paid when

Shutdowns create a clear workforce split: excepted employees continue to work but typically do not receive pay during the lapse, while exempt employees remain on payroll because their funding sources are unaffected. Nonexempt employees are furloughed and return only upon appropriation. The Government Employee Fair Treatment Act of 2019 ensures retroactive pay for furloughed and excepted workers after a shutdown ends, but the law does not eliminate the immediate cashflow hardship experienced by employees during the lapse. Agencies’ contingency documents and press coverage emphasize both the legal guarantee of retroactive compensation and the short-term financial strain for many federal workers ^{[3] [10] [11]}.

5. Operational impacts despite continuity — delays, slowdowns, and indirect effects

Even when core services continue, shutdowns produce secondary disruptions: slower passport and immigration processing, delayed regulatory reviews at FDA, paused policy work at CMS, reduced oversight and contract support, and closures of visitor services at national parks. Agencies warn that emergency response capacity remains but that nonurgent operations grind to a halt or suffer delays, which can translate into longer-term effects on public health, business operations, and scientific research timelines. Reporting and agency contingency plans document such ripple effects, underlining that “open” does not mean “unaffected” ^{[6] [9] [11]}.

6. Where disagreements and political incentives show up — transparency and choices matter

Public discourse and organizational analyses highlight two recurring tensions: the political choices about which activities to except or exempt, and variable transparency in how agencies classify employees. Advocacy groups and watchdogs push for clearer, consistent criteria because agencies’ legal interpretations can diverge and because decisions about exemptions carry practical consequences for public safety and workforce equity. Contingency plans and explanatory coverage underscore both the legal constraints and the discretionary judgments that lead to differing outcomes across departments, making clearer legal reform or statutory clarification a recurring policy recommendation in discussions about preventing future shutdown harm ^{[12] [1] [13]}.