Congress’ failure to enact a budget before the end of a fiscal year results in considerable disruptions to the civil servants on the federal payroll and can inflict equal measure of pain to the US economy. Below is a helpful analysis by POLITICO of the DOT’s proposed plan to comply with the Antideficiency Act (31 U.S.C. § 1342).
The senior executives, who apply the Act’s 1870 language and successive interpretations, face a true quandary— fulfill the statutory obligation while being mindful on the immediate financial impact of individuals as well as the long term employee morale on those furloughed. Ironically, those deemed to be “excepted’ or the less artful, but more apt term “essential” MUST work without a legal expectation of being compensated.
WITHIN THIS POLITICAL PERTURBATED CLOUD IS A RISKY EXECUTIVE RESPONSE TO CONGRESS’ FAILURE TO PERFORM A BASIC LEGISLATIVE FUNCTION!!!
The Biden White House guidance on the shutdown is found here–Frequently Asked Questions During a Lapse in Appropriations
- 2. The function addresses emergency circumstances such that the suspension of the function would imminently threaten the safety of human life or the protection of property. As DOJ has explained, the emergency exception of the Antideficiency Act (31 U.S.C. § 1342) permits an agency to obligate in advance of appropriations when both of the following exist: (a) a REASONABLE AND ARTICULABLE CONNECTION between the obligation and the safety of life or the protection of property, and (b) some REASONABLE LIKELIHOOD that either the safety of life or the protection of property would be compromised in some significant degree by failure to carry out the function in question — and that the threat to life or property can be reasonably said to be near at hand and demanding of immediate response. As the Antideficiency Act states, the emergency exception does not authorize the continuation of ongoing, regular functions of government, the suspension of which would not imminently threaten the safety of human life or the protection of property.
Further elucidation on the terms “Emergency,” “Excepted” and “Essential” is found at the Congressional Research Service’s paper Government Shutdowns and Executive Branch Operations: Frequently Asked Questions (FAQ).
- “…In the executive branch, the term EMERGENCY is generally not used in the context of shutdowns. Rather, this term is primarily used in the context of a need for continuity of operations in certain situations, such as severe weather conditions, air pollution, power failures, interruption of public transportation, natural disasters, and other situations in which significant numbers of employees are prevented from reporting to work or when agencies need to cease all or part of their activities. So-called emergency employees are the employees who must report for work notwithstanding these situations.
- ESSENTIAL. News media sometimes use the term essential instead of EXCEPTED. In the legislative branch, at least one source has referred to nonfurloughed employees as “essential,” although this terminology was not used consistently across the branch and may have varied across offices and agencies. In the executive branch, this term was used similarly in the early 1980s. Since then, the term has gradually disappeared from official use in the executive branch in favor of excepted, in part to prevent a colloquial interpretation of the term essential as referring to relative importance or value. In congressional hearings that focused on the first FY1996 shutdown, some witnesses regretted that the terms nonessential and essential had been used to describe employees subject to furlough and not subject to furlough, respectively. Use of the term nonessential was a misnomer and demeaning, they said.”
Secretary Buttigieg, see below, decries the furloughing of the air traffic controllers in training. Though he did not enumerate the true nature of this risk, here are likely safety consequences:
“The safety consequences of air traffic controller shortage are serious and potentially life-threatening. According to the web search results, some of the possible impacts are:
- Increased risk of near-miss airplane collisions, which could result in fatal accidents or injuries.
- Disruption of air travel for years, which could affect millions of passengers, airlines, and the economy.
- Reduction of air service provision, which could lead to airspace closures or restriction of services or hours
- Compromised safety and security of air traffic operations, which could expose the system to threats or errors.
- Increased stress and fatigue for air traffic controllers, which could impair their performance and health.
These are some of the reasons why it is important to address the air traffic controller shortage as soon as possible and ensure adequate staffing and training for this critical profession.”
Actingi DOT General Counsel Subash Iyer could well have determined that the training of these essential-to-safety air traffic controllers meets the parameters of the Antideficiency Act. Without the 3,600 individuals in training (26% of the current work force) THE SAFETY OF THE NATIONAL AIRSPACE SYSTEM COULD BE IMPACTED. Mr. Iyer likely informed the Secretary that “excepting” these 3,600 soon-to-be-controllers was possible. WHY DIDN’T IT HAPPEN?
The discretionary decision to furlough the controllers in training at the FAA Mike Monroney Aeronautical Center is reminiscent of an executive agency head’s decision to SHUT DOWN THE WASHINGTON MONUMENT1. In 1969, the Director of the National Park Service announced that he was going to close the #1 tourist attraction in DC and oh by the way, many of those visitors to the Nation’s Capitol use the trip to go visit their Congresspersons in the Capital. They used that First Amendment opportunity to complain about the Monument’s closure. The tactic worked as the National Park Service’s budget was increased to include the Rangers needed!!! And, yes, the technique has been repeated with success.
Secretary, using the Washington Monument lobbying tactic on Air Traffic Control Training is not appropriate; REVERSE YOUR DECISION, please, in the name of SAFETY!!!
Here’s what happens when the government shuts down – POLITICO
…FAA is by far the Transportation Department’s largest division and on a normal day houses more than 80 percent of the agency’s employees. MORE THAN ONE-THIRD OF THEM WOULD BE FURLOUGHED DURING A SHUTDOWN.
According to the plan from September 2022, 24,822 FAA employees would stay on the job in case of a shutdown because their work is “necessary to protect life and property,” along with 628 officials from other agencies. Thousands of others would stay on the job because they’re not paid out of annual appropriations — if the agency’s reauthorization, which also needs to be passed by Sept. 30, doesn’t lapse.
But THE TRAINING OF NEW AIR TRAFFIC CONTROL SPECIALISTS WOULD CEASE. So would aviation rulemaking, facility security inspections, the development and testing new technologies and safety standards, law enforcement assistance support and most functions related to finance, budgeting and administration. Three-quarters of DOT’s inspector’s general’s office would be furloughed.
Air traffic controllers would continue working through a shutdown since they’re deemed as “essential” workers, but technicians and some inspectors that work for the FAA as contractors would likely be furloughed right away.
More than a third of FAA staff would be furloughed during a shutdown. | AP Photo
Transportation Secretary Pete Buttigieg said his top concern with a government shutdown is halting air traffic control training just as the FAA begins to curb a talent drain exacerbated by the pandemic.
“I’d say the ATC training is the thing we’re watching most closely but right now we’re watching all the parts of the agency that could be affected,” Buttigieg said. “A shutdown would be a really difficult situation.”
