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Do agency heads have legal authority under the Antideficiency Act to continue essential services without appropriations?
Executive Summary
Agency heads do have limited legal authority under the Antideficiency Act to continue certain government functions during lapses in appropriations, but that authority is tightly constrained to narrow exceptions—primarily activities expressly authorized by law, those necessary to protect human life and property, and functions required to discharge constitutional duties. Recent agency guidance and contingency plans reiterate that agency heads must identify excepted activities in consultation with legal counsel, cannot incur new obligations beyond appropriations, and may continue excepted operations only with the understanding that payments often cannot be made until Congress provides funding [1] [2] [3].
1. How agencies justify continuing work when funding stops—and what the law actually says
The Antideficiency Act broadly prohibits federal officers from obligating or expending funds absent an appropriation, but it contains explicit carve-outs permitting continuation of activities in emergencies involving the safety of human life or the protection of property, or when another statute authorizes spending despite a lapse. Agencies repeatedly rely on those statutory exceptions and on legal interpretations to classify functions as “excepted” during shutdowns; this is reflected in recent OMB and departmental guidance requiring agency heads to identify excepted activities and retain necessary personnel to perform them while furloughing non-excepted staff [1] [4] [2]. Guidance stresses that determining excepted activities is a legal judgment made in consultation with general counsel and must focus on immediate legal authority rather than policy preference [2].
2. Agency guidance and contingency plans: practical constraints and recurring themes
Contingency guidance from Defense, Justice, and OMB across recent years shows consistent themes: agency heads may continue essential operations but cannot create new obligations or make disbursements for most activities until appropriations resume; they must prepare shutdown plans, update them regularly, and submit them for OMB review. The Department of Defense memoranda and OMB circulars outline that Secretaries or agency heads can designate additional excepted activities but highlight limits—military personnel, national security functions, and life/property protections are prioritized, while many civilian services face furloughs [3] [2] [5]. These documents reinforce that legal authority to act during a lapse is narrow and conditional, not a general spending power.
3. Numbers and real-world impact: who keeps working and who doesn’t
Recent contingency plans quantify the operational impact: for example, the DOJ’s FY2026 plan projects that about 89% of DOJ employees would be excepted from furlough in a lapse scenario because large components like FBI and BOP have statutory authorities, multi-year funding, or mission-critical responsibilities; nevertheless, the plan underscores limits such as inability to liquidate obligations until Congress appropriates funds [6]. Defense and other department plans similarly show that most excepted personnel are tied directly to safety, national security, or statutory authorities, while support functions and discretionary programs are vulnerable to furloughs. These figures illustrate that agency heads’ authority is exercised within a triage framework prioritizing immediate risk over continuity of all services [6] [7].
4. Legal disputes, gaps, and why courts and Congress matter
The Antideficiency Act’s exceptions reduce but do not eliminate legal risk; agencies face potential litigation or GAO review if they misclassify activities as excepted or incur obligations without clear statutory cover. Historical GAO opinions and court rulings—reflected in agency practice and guidance—show that missteps invite oversight and that agencies often err on the side of conservative classification to avoid violations [1] [2]. Because many decisions turn on statutory interpretation and evolving executive-branch guidance, Congress retains the ultimate control through appropriations and can change the legal landscape by passing authorizing or emergency funding statutes that explicitly allow spending during lapses.
5. Bottom line for policymakers and the public: authority exists, but it’s limited and conditional
In sum, agency heads can legally continue a subset of essential services during funding lapses—chiefly life, safety, property protection, national security, and activities expressly authorized by law—but they do so under strict statutory and procedural limits: obligations can’t be created beyond appropriations, broad delegations are risky, and most non-excepted activities must cease until funding is provided. Contemporary OMB and departmental guidance uniformly instruct agency heads to document justifications, consult counsel, and prepare orderly shutdown plans that prioritize excepted work while minimizing legal exposure [4] [2] [3].