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What constitutional powers can the President invoke to continue government operations during a funding lapse?
Executive Summary
The President’s ability to keep federal operations running during a funding lapse is constrained by the Constitution and statutes: Congress alone holds the power of the purse, and the Antideficiency Act forbids spending without appropriation except in narrowly defined circumstances. Practical continuance of services rests mainly on Congressional tools (continuing resolutions) or statutory emergency authorities, while the President’s constitutional duties (Commander‑in‑Chief, Take Care Clause) and some emergency powers provide limited, contested avenues for a partial, case‑by‑case continuation of specific functions [1] [2] [3] [4].
1. Why Congress, Not the President, Holds the Keys — The Appropriations Baseline That Limits Action
The constitutional baseline is that Congress authorizes and appropriates spending, a principle reinforced by modern analyses which stress that money may not be drawn from the Treasury absent a law enacted by Congress. The GAO and other legal summaries emphasize that executive branch rules cannot create budget authority and that routine agency discretion is insufficient to override the Appropriations Clause. The Antideficiency Act operationalizes this constraint by criminalizing obligations or expenditures absent appropriation, leaving only very narrow exceptions for continuing activity. These sources together frame the default legal reality: the President cannot unilaterally fund routine federal operations during a lapse; relief ordinarily requires congressional action such as a continuing resolution [5] [1] [2].
2. Narrow Constitutional and Statutory Exceptions: What the Executive Can Lawfully Do
Legal analyses identify specific, limited exceptions that allow certain activities to continue despite a lapse. These include duties tied to the President’s constitutional roles — notably the Commander‑in‑Chief authority and the duty to “take care” that laws are faithfully executed — and statutory exceptions for emergencies. Agencies may maintain "excepted" work that protects human life or property and perform “necessarily implied” functions that support those excepted activities. Some statutes also give the President broad emergency powers that can be triggered in crises; these statutes can unlock authorities affecting operations, but they do not create blanket spending authority for routine programs. In short, continuity is legally permissible only for narrowly defined essential functions and under specific statutory hooks [3] [4] [2].
3. Continuing Resolutions and Ordinary Political Remedies: Congress’s Practical Control
The pragmatic route to sustained operations is political: Congress passes continuing resolutions (CRs) or appropriations acts to bridge gaps. Historical and procedural sources show CRs are the normal stop‑gap used when appropriations are not completed, and they typically preserve ongoing funding at prior levels. Presidential involvement is limited to signing or vetoing CRs, not inventing new spending. The reliance on CRs underscores the political nature of most shutdown relief: the executive can urge, negotiate, and litigate, but cannot replace Congress’s lawmaking role in a funding lapse [5] [6].
4. The Emergency Powers Route: Broad but Contested and Time‑Bound
Analyses of emergency statutes warn that while the President can declare emergencies to access an array of statutory powers, those authorities are unevenly applicable and often subject to oversight, limits, or judicial review. A compilation of emergency powers shows many tools available in crises—controls over resources, regulatory suspensions, and reallocation mechanisms—but invoking them to sustain routine government functions raises legal and political fights. Critics describe an approach called “appropriations presidentialism,” where the executive asserts expanded spending discretion; defenders point to necessity in crises. The factual balance is clear: emergency powers offer levers, not carte blanche, and they invite legal challenge and congressional pushback [4] [7].
5. Competing Views and the Bottom Line: What Shifts the Balance in Practice
Sources from 2013 through late 2025 converge on the same bottom line with varying emphases: law constrains the President; statutes and constitutional duties provide narrow exceptions; Congress remains the decisive actor. Recent 2025 analyses and reporting reiterate that certain essential services and national security functions can continue under constitutional or statutory authority, but broad continuity of government without appropriation is legally fraught and politically volatile. Observers who warn against executive overreach frame emergency invocation as a threat to separation of powers, while proponents argue necessity and practicality during crises. The operational reality is that ending a lapse typically depends on Congress—CRs or appropriations—while the executive’s lawful options are limited, targeted, and contestable [8] [9] [7].