Avoiding a Shutdown Is Best

The views expressed are those of the author and do not necessarily reflect the views of ASPA as an organization. 

By Michelle M. Buehlmann
March 17, 2025

Some believed that a government shutdown would have halted DOGE’s activities. Others had hoped that it might have forced President Trump into a tough spot, where some concessions could have been made to return Congress’ Constitutional power of the purse (Article 1, Section 9, Clause 7). While these beliefs and hopes were entirely understandable, they were factually incorrect.

Currently, there are legal questions surrounding President Trump’s Administration’s personnel actions. Shutting down the government would have granted President Trump the legal authority to make all the decisions about government spending and the federal workforce. In other words, shutting down the government would have undermined the ongoing federal employee lawsuits and legally empowered the President. With that power, why would President Trump have wanted to end a government shutdown? Avoiding a shutdown was the best course of action for America’s civil servants, as they continue to have their day in court.

The legal questions about the Administration’s mass firings continue to be real and ongoing. For example, on March 13, 2025, it was widely reported that California U.S. District Judge William Alsup ordered the federal government to reinstate thousands of probationary employees fired the previous month at the departments of Agriculture, Defense, Energy, Interior, Treasury, and Veterans Affairs. In addition, Maryland Senior U.S. District Judge James Bredar issued a restraining order on the evening of March 13, 2025, prohibiting the Trump Administration from firing probationary employees who were employed by the federal government on January 20, 2025, as part of a mass firing in which no individualized determination of cause had been made. Judge Bredar’s order had further required that any future mass layoffs must comply with applicable laws and regulations. He had laid out a three-pronged schedule: (1) the Administration was to provide a status report by 1 p.m. on March 17, 2025, (2) any request to extend the order has to be submitted by 4 p.m. on March 21, 2025, and (3) a hearing on a preliminary injunction is scheduled for March 26, 2025, at 9:30 a.m. The status report due on March 17, 2025 must include the number of affected probationary employees, broken down by sub-agency “to the greatest degree of granularity practicable.” A government shutdown could have interfered with these, and similar, legal cases brought to help federal workers.

In the event of a government shutdown, the President would have the legal authority to determine which federal employees were essential and which were non-essential, a precedent that was clearly established during the 1995 shutdown. Most people remember the December 1995–January 1996, 21-day shutdown as the longest at the time, but for this discussion, the November 1995 shutdown is key. On November 14, 1995, President Bill Clinton had furloughed approximately 800,000 non-essential federal employees, only to recall about 67,000 of them on November 16, 1995, declaring them essential. The shutdown ended on November 19, 1995, only to be reignited a month later. President Clinton’s decision to recall federal workers partway through the November shutdown set the precedent for the White House, determining the fate of federal employees during a shutdown.

The reason for this is that there is very little law governing government shutdowns. In fact, the law underlying the shutdown was enacted roughly 100 years before the shutdown was even invented. The Anti-Deficiency Act prohibited federal employees from spending money in advance of appropriations. The concept of a government shutdown emerged in 1980, when the Anti-Deficiency Act combined with the 1974 Budget Process, which identified specific appropriations bills and provided a schedule for their enactment. In his January 16, 1981, opinion on the matter, Attorney General Benjamin Civiletti concluded, “…the Executive can properly identify those functions that the Government may continue upon lapses in appropriations.” Thus, the legal opinion of Attorney General Civiletti, appointed by Democratic President Jimmy Carter, combined with the precedent established by Democratic President Bill Clinton, provides the legal authority for President Donald Trump to make all the decisions during a government shutdown.

Some might have argued that under the 2019 Government Employee Fair Treatment Act (GEFTA), signed into law by President Trump, federal workers would have been paid when the shutdown ended, making a shutdown seem preferable to the legal limbo at the time. However, this law only applied if workers were furloughed. If the Administration had used some other mechanism—such as administrative leave—the law might not have applied. Additionally, GEFTA has not been upheld in court, and GEFTA assumes the shutdown would end. During a shutdown, the prevailing law and precedent gives the President unilateral budgetary powers, a course of action more consistent with the President’s actions since taking office. Why would President Trump want to end a government shutdown? If he didn’t agree to the legislation ending the shutdown, Congress could theoretically overridde the President’s veto, but that would required a 2/3 vote of support in both the House and Senate, which seemed highly unlikely.

Ultimately, avoiding a government shutdown was the best course of action for America’s civil servants, allowing them to continue their fight in court.

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Author: Michelle M. Buehlmann received her MPA and PhD in political science from George Mason University. She served on Congressman George W. Gekas working on the Automatic Continuing Resolution legislation tduring the Clinton Administration.  She also worked for Senator James M. Jeffords; the American Association of College for Teacher Education; the California State University; and the American Association of State Colleges and Universities.  She taught public administration and political science courses at George Mason University, and Northern Virginia Community College.   She is currently the Clinical Assistant Professor of Political Science and Public Administration at the University of North Dakota, in Grand Forks, ND and is the author of “Let’s Shutdown the Government: An Instructional Game” published Oct 30, 2024 in the Journal of Political Science Education.

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