Senate Majority Leader John Thune, R-S.D., joined by Speaker of the House Mike Johnson, R-La., speaks to members of the media following the Republican Senate Policy Luncheon at the U.S. Capitol on Oct. 7, 2025.

Senate Majority Leader John Thune, R-S.D., joined by Speaker of the House Mike Johnson, R-La., speaks to members of the media following the Republican Senate Policy Luncheon at the U.S. Capitol on Oct. 7, 2025. Kevin Dietsch / Getty Images

Trump says he can pick and choose which feds get back pay. Republicans in Congress mostly disagree

Asked if furloughed workers will get retroactively paid, Trump say “it depends.”

President Trump on Tuesday suggested he would select some furloughed federal workers to receive back pay while denying it for others, despite a legal requirement that all employees sent home during the funding lapse be made whole for their time missed during a shutdown. 

Trump’s comments followed the Office of Management and Budget stripping from its shutdown guidance that federal law requires agencies to provide back pay to furloughed workers, as Government Executive reported on Tuesday, and the White House subsequently drafting legal guidance arguing the statute does not, in fact, issue that mandate. Lawmakers of both parties on Tuesday pushed back on OMB’s view, suggesting all federal employees were guaranteed back pay when the government reopens. 

"I would say it depends on who you're talking about,” Trump said when asked about back pay for furloughed workers. He added, “For the most part, we're going to take care of our people,” but said, “There are some people that really don't deserve to be taken care of." He then said the latter group would be taken care of "in a different way."

Prior to Oct. 3, OMB’s Frequently Asked Questions During a Lapse in Appropriations document highlighted the Government Employees Fair Treatment Act, the law enacted in 2019 as part of the deal to end the 35-day partial government shutdown during President Trump’s first term to ensure both furloughed and excepted federal workers receive back pay once government funding has been restored. In the latest version of the document, OMB removed any mention of that law or furloughed feds receiving back pay. 

After Axios on Tuesday revealed that the Trump administration would take a novel interpretation of the back pay law and argue it applied only to the 2019 shutdown, OMB released to media outlets new legal guidance making that argument. 

More than 620,000 employees are currently furloughed, a number that will continue to climb as the shutdown drags on.

"I follow the law and what the law says is correct,” Trump said Tuesday. 

Democrats were quick to denounce the change and threatened to take the administration to court. 

Trump is “threatening to ignore the plain letter of the law to deny federal workers back pay—which I’ll tell you right now is not going to fly,” Sen. Patty Murray, D-Wash., the top Democrat on the Senate Appropriations Committee, told reporters on Tuesday. 

The 2019 measure—which Trump signed into law during the record-setting 35-day shutdown that ended that year—explicitly stated that it applied to any employee furloughed during “any lapse in appropriations that begins on or after December 22, 2018.”

Sen. Chris Van Hollen, D-Md., who helped write the 2019 back pay measure and shepherd it into law, said “there is nothing the administration can do” to change the statute. Sen. Andy Kim, D-N.J., himself a veteran of multiple shutdowns as a former State Department employee, said the Trump administration was demonstrating it has the wrong priorities. 

"That is not only illegal and wrong,” Kim said of the White House’s newly minted legal interpretation, “but it is something that's sending a signal far and wide about just how much he doesn't care about the American people and the families that are really struggling right now.”

Many Republicans similarly suggested the back pay issue was settled law. 

Senate Majority Whip John Barrasso, R-Wyo., the second ranking Republican in the chamber, called on Democrats to vote to reopen the government and said federal workers would automatically get back pay at that time. 

“My understanding is that they would get paid,” Barrasso said. 

The Republican leader, Sen. John Thune, R-S.D., made a similar interpretation. “My assumption is that furloughed workers will get back pay,” Thune said. 

Sen. Susan Collins, R-Maine, who chairs the Senate Appropriations Committee, said Congress “settled” the back pay issue with the 2019 law, according to Bloomberg Government. House Speaker Mike Johnson, R-La., expressed an openness to the White House’s new interpretation. 

Prior to the 2019 law, Congress had to affirmatively pass legislation after each shutdown to ensure furloughed workers were retroactively paid. Asked whether lawmakers might consider including such language in any spending bill to reopen government this time around, several Democrats told Government Executive they rejected the premise. Van Hollen, for example, said there was "no ambiguity" in the law and no changes were necessary, while Sen. Richard Blumenthal said it was "incomprehensible" to even contemplate passing a new law to enforce an existing one. 

“It's already law of the land,” Kim said. “That's what shows just how much of a circus this is. The president doesn't even understand what's the law, what's not.”

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