The ultra risks of a routine shutdown

It would be easy to think about the prospects of a government shutdown as the next act in a tired old play. But what’s looming this time is far, far different, with incalculable stakes. It could amount to the most dramatic shift in the separation of powers in living memory—or longer.

That might sound raving, but consider this.

Without a new budget passed on this not-so-happy-fiscal-new-year, only “excepted” parts of the government can operate. The Antideficiency Act prevents spending on anything else. Employees go on an unpaid furlough, and they’re not even allowed to use government-issued laptops, cell phones or email accounts. (None of this applies, of course, to employees funded by separate revenues, like Social Security, Medicare or the Postal Service.)

And just who is an “excepted” government employee working in an “excepted” program? OMB has a surprising amount of discretion to define this, through Circular A-11. 

Here’s where a looming shutdown this time will be far, far different than the previous ones in 1995, 2013 and 2018. According to reports first published by Politico, OMB Director Rusell Vought instructed agencies to prepare RIFs for all employees without separate funding and whose work “is not consistent with the President’s priorities.” The RIFs could apply even to employees working in “excepted” programs. 

Just a momentary lapse in appropriations—a shutdown that lasts minutes or hours—would give Vought the power to tell agency leaders to move past the usual furloughs—“temporary, nonduty, nonpay status”—to RIFs—being permanently fired. Vought could choose the programs that the administration has been wanting to eliminate and give a very big haircut to others.

The result would be a dramatic, instantaneous shift in the separation of powers. Let me underline this: while the purse is empty, OMB would seize the power of the purse from Congress. The administration could choose to prolong a shutdown for as long as it liked, through poison pills in the negotiations with congressional Democrats, and comb through the government to flatted programs it’s been trying to cut. With this prospect looming, the administration has little incentive to do more than shed crocodile tears over a shutdown. 

And then, when the shutdown is over, whenever the administration chooses to end it, those employees who were furloughed would come back on the payroll, with back pay, through a 2019 law. The employees who were RIFed would not. 

This would be an historic—and incredible—invention of a backdoor impoundment. OMB could prevent the administration of programs it opposes by gutting the government’s capacity to administer them. The Trump team could kill programs unilaterally without the inconvenience of going to Congress. 

To top it all, this would all be perfectly legal. 

Under the Antideficiency Act, OMB would be well within its powers to decide which programs could not continue. It could decide that programs that aren’t “excepted” had to stop. It could then RIF employees working for those non-excepted programs, and any other employees it chooses. RIFed employees would have no appeal rights and the government has no obligation to bring them back when Congress—finally—passes an appropriation, as the University of Minnesota’s Nick Bednar has concluded.

They’d be gone, and so would the programs they manage. 

It would be a bigger deal than the Musk-led DOGE at the beginning of the administration. Bigger than Schedule PC or Schedule G. It would give real and very sharp teeth to Project 2025’s ambitious goal to turn government upside down. 

And it sets a trap for the Democrats. They could roll over and agree to all of the administration’s demands, as they did back in March. That would weaken the party further as leaders try to right the ship. Or they could refuse to give in, trigger a shutdown—what the Republicans are already calling a “Schumer Shutdown”—and then stand back to watch an awesome stripping away of their power. 

Either way, the Democrats lose. It’s like an old western, where cowboys ride into a box canyon with no way out. 

And, with the looming prospect of an enormous cut in government employees, a slashing of government functions and an historic shift in the power of the purse, this is the very embodiment of a Very Big Deal. 

In Federalist 58, James Madison wrote “This power over the purse may, in fact, be regarded as the most complete and effectual weapon with which any constitution can arm the immediate representatives of the people,” the Congress. With his memo to federal agencies, Russell Vought turns Madison on his head, for he would strip Congress of the power of the purse, invent a new and legal backdoor impoundment, and disarm the representatives of the people. 

And even if both sides manage an agreement, the club in that memo will always be behind the door.