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How do continuing resolutions, the Antideficiency Act (31 U.S.C. § 1341), and the Constitution interact during government shutdowns?
Executive summary
The Antideficiency Act bars federal agencies from incurring obligations or making expenditures absent a valid appropriation, so a lapse in appropriations forces agencies to suspend non‑essential operations and furlough employees until Congress acts. Exceptions for activities necessary to protect human life or property and for activities funded by multi‑year or indefinite appropriations allow limited functions to continue, but the executive branch’s discretion to “keep the government running” is legally constrained and shaped by constitutional appropriations principles and statutory text [1] [2] [3].
1. Why the government shuts down when Congress pauses — the legal mechanics that stop the spending clock
A lapse in appropriations triggers the Antideficiency Act’s core prohibition: agencies may not obligate or expend funds in advance of or in excess of an appropriation, nor accept voluntary services, which legally halts most program activity until Congress enacts funding. This statutory rule operationalizes the Constitution’s Appropriations Clause, which vests spending authority in Congress and makes appropriations a prerequisite to execution of federal programs. During a lapse, agencies must determine which activities are funded by continuing authorities (multi‑year or indefinite accounts) and which are not, leading to a bifurcated operational posture where many programs pause while a legal subset continues [4] [1] [5].
2. The life‑and‑property exception — what the law permits the government to keep doing
The Antideficiency Act and agency guidance carve out clear exceptions that allow continuing operations “necessary to protect life and property”, and some statutory authorities expressly permit obligations even without new appropriations. Federal law and recent guidance instruct agencies to prioritize those functions—law enforcement, air traffic control, border security, emergency medical care—while nonessential administrative programs are suspended. That exception is narrow and legally defined; agencies must classify employees and duties as excepted or non‑excepted, and improper classifications can produce administrative or penal consequences under the Antideficiency Act [2] [5] [1].
3. Employees, contractors and retroactive pay — who feels the financial pain and who gets made whole later
A lapse in appropriations generally stops pay for furloughed employees and suspends contractor performance or delays payment, though Congress has historically provided retroactive pay for furloughed federal employees after a shutdown ends. Legislative branch guidance confirmed that neither exempt nor furloughed employees are authorized to receive compensation during the lapse, although retroactive pay is typical once appropriations are restored, and contractors face disruptions, uncertainty and potential payment delays that can affect performance and solvency [6] [7] [8].
4. Separation of powers and presidential flexibility — where the Constitution fits and where it doesn’t
The Constitution’s Spending and Appropriations Clauses allocate spending power to Congress; the Antideficiency Act enforces that allocation by constraining the executive branch’s ability to spend without legislative authorization. The President retains limited constitutional authorities—such as duties to take care that laws are faithfully executed and to respond to emergencies—but those powers do not broadly override the Antideficiency Act’s statutory constraints. Executive discretion during lapses is therefore bounded: the administration can prioritize excepted functions and rely on statutory exceptions, but it cannot lawfully create sustained unfunded programs simply to avoid a shutdown without Congressional appropriations [4] [5].
5. Operational gray areas and competing interpretations — where disputes and agendas emerge
Agencies and administrations confront judgment calls about what counts as life‑or‑property protection, and political actors sometimes advance broader readings to minimize public disruption or to increase leverage in negotiations. Those readings carry institutional and political agendas: agencies may favor flexible interpretations to maintain services, while Congress can use funding gaps as leverage, and the executive may invoke narrow emergency powers to prioritize certain programs. Legal risk exists when agencies or officials stretch exceptions; DOJ and OMB guidance typically reins in such expansions, and the Antideficiency Act authorizes administrative and penal sanctions for violations [5] [9] [1].
6. Big picture: policy choices, litigation risk, and the practical fallout of funding gaps
The interaction of continuing resolutions, the Antideficiency Act, and the Constitution creates a predictable but politically fraught cycle: short‑term stopgaps like continuing resolutions can postpone budget fights, while full lapses force immediate statutory constraints that produce furloughs and service interruptions. The most recent guidance and analyses from 2025 reiterate that while limited functions continue under exceptions and certain accounts remain operational, the underlying constitutional allocation of power to Congress and statutory enforcement through the Antideficiency Act keep the executive branch from unilaterally funding broad operations during a shutdown, leaving room for litigation, political blame, and real economic and human impacts [7] [3] [1].