Why a federal program paying employees not to work may violate spending laws

Agencies appear to be making unauthorized payments on a large scale. Federal spending law prohibits agencies from using funds without congressional authorization. But under the Fork in the Road deferred resignation program (DRP), tens of thousands of employees are receiving full salaries while barred from working. These expenditures may not only be ill-advised but could violate the law and expose agency officials to personal liability.

One of the foundational principles of American constitutional design is that Congress controls the “power of the purse.” The Appropriations Clause vests Congress with authority to determine how public funds are spent. Congress has implemented this authority through statutes such as the Purpose Statute and the Antideficiency Act. Together, these laws prohibit agencies from using appropriated funds for unauthorized purposes or obligating funds beyond what Congress has made legally available. In short, agencies may not spend a dollar without explicit congressional authorization. The DRP appears to violate this requirement in multiple ways.

DRP payments may violate the Purpose Statute

The Purpose Statute requires that appropriated funds be applied “only to the objects for which the appropriations were made.” Courts and the Government Accountability Office have consistently held that this means expenditures must be explicitly or implicitly authorized. Payments under the DRP satisfy neither condition.

Most agency appropriations provide for “salaries and expenses” or “necessary expenses.” Salary, under any reasonable interpretation, means payment in exchange for services rendered. DRP participants are placed on administrative leave and are explicitly barred from working. Paying regular wages under these conditions cannot be considered a lawful salary expenditure. It is no more authorized than distributing federal funds to individuals with no connection to the government.

These payments also fail under the necessary expense doctrine, which allows implicit spending only when it bears a logical relationship to a legitimate purpose and is not otherwise prohibited by law. DRP payments fail both prongs. According to GAO precedent, expenditures that primarily benefit employees rather than the agency are treated as personal expenses and may not be paid using appropriated funds. Because the sole purpose of DRP payments is to compensate employees for not working, they serve no operational function and cannot be justified as a necessary expense.

The payments also violate statutory limits on administrative leave. The Administrative Leave Act of 2016 limits administrative leave to 10 workdays per year. The DRP offers up to eight months of leave—well beyond this cap. Moreover, the program functions similarly to a voluntary separation incentive payment (VSIP), which is governed by its own statutory framework. VSIPs must be offered pursuant to a formal, agency-specific plan approved by the Office of Personnel Management, must be paid as a lump sum, and are capped at $25,000. The DRP satisfies none of these conditions. It was launched government-wide without agency-specific plans and initially not by the employing agencies themselves but by OPM acting unilaterally. It pays ongoing salary instead of a lump sum and likely exceeds the statutory ceiling for many participants.

To illustrate the scale: any employee earning more than $37,500 annually who accepted the DRP offer in January and remained on leave through September would exceed the $25,000 ceiling. This includes all General Schedule employees at grade 6 or above, representing nearly 70% of the federal workforce. The DRP is therefore not only unauthorized but likely violates multiple federal statutes.

DRP payments may exceed legally available funds under the Antideficiency Act

The Antideficiency Act prohibits agencies from obligating funds before appropriations are made and from obligating or spending funds in excess of legally available amounts. Unlike the Purpose Statute, the Antideficiency Act carries personal liability—both administrative and criminal—including potential imprisonment for officials who knowingly and willfully violate its provisions.

Initial concerns about the DRP suggested it violated the Antideficiency Act’s prohibition on advance obligations. The first wave of DRP agreements were entered into before appropriations were enacted for the second half of fiscal year 2025. However, OPM’s template agreement included a rescission clause giving agencies unilateral authority to cancel the contract. As a result, the agreements did not create enforceable obligations prior to appropriation and likely did not violate the Antideficiency Act’s restriction on advance obligations.

The more serious issue involves the core spending restriction. The Act prohibits agencies from obligating or spending funds “exceeding an amount available in an appropriation or fund.” Both the Department of Justice and the GAO interpret this to include expenditures that exceed spending caps. However, the two institutions differ on where a cap must appear to trigger liability. The Justice Department views the Act as violated only when an agency exceeds a limit contained in an appropriations statute itself. Under this interpretation, caps found in freestanding authorizing statutes—such as the $25,000 VSIP ceiling—are not enforceable under the Act.

The GAO takes a broader view: any statutory cap, regardless of location, can trigger liability if exceeded. If DRP payments are treated as functional equivalents to VSIPs—and there is a colorable argument that they are—and if they surpass the $25,000 ceiling, they would violate the Antideficiency Act under the GAO’s interpretation. Because the Act imposes personal liability for violations, agency officials who authorize such payments could be held individually accountable. If acting knowingly and willfully, such liability could include criminal sanctions.

The DRP represents a significant challenge to federal spending law. It disregards multiple statutory constraints, misuses appropriated funds, and circumvents established limits on both administrative leave and separation incentives. The authority to direct federal spending belongs to Congress. When agencies disregard that authority to fund their own restructuring, such action is not only unauthorized but risks institutional integrity.

Madeline Materna is a legal scholar currently pursuing a PhD in Political Science at Stanford University. She serves as a research assistant with Reform for Results, a policy initiative housed at Stanford’s Center on Democracy, Development and the Rule of Law (CDDRL). As part of its Personnel Reform sub-group, her work focuses on legal and structural barriers within the federal civil service, with an emphasis on strengthening merit-based hiring and accountability systems. She earned her JD from Emory University School of Law and is a member of the Illinois Bar.