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What legal authority allows a President to keep agencies operating without Congress in 2018 or 2019 shutdowns?
Executive Summary
The legal authority that let parts of the federal government keep operating during the 2018–2019 shutdown rests primarily on the Antideficiency Act and narrow exceptions for emergencies and constitutional duties, as clarified by agency contingency guidance and Justice Department opinions. Agencies applied those statutory exceptions, alternative funding sources, and internal contingency plans to designate staff as “excepted” or to rely on non-annual funds, while Congress later provided retroactive pay under the Government Employee Fair Treatment Act [1] [2] [3] [4].
1. How advocates framed the core claim and why it matters
Analyses presented to you converge on one core claim: the Antideficiency Act is the legal backbone governing what continues during a lapse in appropriations. Multiple briefings and continuity-of-operations plans describe the Act’s prohibition on making obligations absent appropriations but also enumerate exceptions—most importantly activities necessary to protect human life and property and to carry out constitutional duties. Public-facing FAQs and agency contingency plans underscore that the law does not create blanket presidential power to run agencies without Congress; it creates narrowly defined pathways for specific functions to continue [1] [2] [3]. This matters because policymakers and the public interpret “keeping agencies operating” differently—continuing essential services is legally distinct from maintaining full agency operations or budgetary discretion.
2. The statute in plain terms: Antideficiency Act and its contours
The Antideficiency Act prohibits federal employees from obligating funds that Congress has not appropriated, but longstanding interpretations carve out targeted exceptions. The key statutory carve-outs allow expenditures that are either expressly authorized by other laws, funded by non-annual resources, or necessary to save human life or protect property, and those necessary to discharge the President’s constitutional duties. Agencies rely on these categorical exceptions when deciding who is “excepted” from furloughs and which programs continue during a lapse [1] [2] [5]. Legal guidance and contingency plans make clear that these are legal limits, not open-ended delegations of fiscal authority to the Executive; obligations beyond the exceptions risk violating the Act and prompting legal or administrative consequences [3].
3. The Justice Department’s role and precedent-based practicalities
Justice Department opinions and agency legal counsels have shaped how the exceptions are applied. DOJ opinions from the 1980s onward have recognized emergency and safety exceptions, and recent guidance reiterates that national security, law enforcement, and public-health functions can continue under those narrow constructions. Agencies use these opinions to justify retaining personnel during shutdowns, but they must document the legal basis and the specific statutory or emergency justification for each continuation decision. The result is a patchwork: some functions clearly fall within exceptions, while others are more contingent on legal interpretation and internal risk assessments [3] [6] [5].
4. What happened in 2018–2019: application, not wholesale authority
During the 2018–2019 shutdown, the Executive did not operate agencies wholesale without Congress; instead, agencies designated essential employees and continued specific programs under Antideficiency Act exceptions or alternative funding, including trust funds and mandatory programs that do not rely on annual appropriations. Agencies also followed contingency plans developed for lapses. The Government Employee Fair Treatment Act later provided retroactive pay to affected workers, but that statute remedied the pay consequences rather than creating the original authority to keep particular operations running [4] [2] [1]. This sequence underscores that functioning during a shutdown reflects statutory exception plus agency implementation, not an independent presidential appropriation power.
5. The boundaries, oversight risks, and political framing
The legal framework carries firm boundaries and oversight mechanisms. Continuations under Antideficiency exceptions are subject to legal risk, agency documentation, and Congressional scrutiny, because exceeding appropriations or misclassifying non-excepted work can trigger enforcement actions. Political actors often phrase these continuations as either responsible protection of life and property or as executive overreach depending on agenda—advocates for expansive executive flexibility emphasize national-security and public-safety exceptions, while critics warn of erosion of Congress’s power of the purse. These competing framings influence litigation, post-shutdown audits, and statutory fixes such as retroactive pay laws [5] [3].
6. Bottom line and implications for future shutdowns
The bottom line is straightforward: the President and agencies relied on the Antideficiency Act’s exceptions, DOJ interpretations, contingency plans, and non-annual funding sources to maintain essential functions in 2018–2019, but that is not the same as an unconstrained authority to run agencies without Congress. Lawmakers retain the constitutional appropriation power and can alter the landscape through statutes, oversight, or appropriations changes. Understanding this legal architecture clarifies both why some functions continued and why contested questions about scope and accountability persist after every significant lapse in appropriations [1] [2] [4] [3].