Who Does the Act Affect? The act “definitely applies to government employees and officials of the core executive and independent agencies,” Harvard Law Professor Howell E. Jackson, a budget and regulatory expert, told me. This means the vast majority of federal workers will be told to go home next week in the absence of a budget deal. Those who get to stay will come from two groups — one in which federal workers have been explicitly exempted and one in which workers have been deemed to be “essential” through analysis. “It’s complicated,” Jackson said, “where the lines are drawn and sources of legal authority are not precise.”
Perhaps the most interesting example of a “specific exemption,” Jackson says, is the Food and Forage Act of 1861 — near the start of the Civil War. As the title suggests, that law permitted soldiers to graze their horses and take whatever other necessities were required to live on horseback. It’s a law that was invoked in a decidedly non-horsey sense during the Vietnam War, again during Operation Desert Shield in Iraq in 1990, and, for a brief time, immediately following the terror attacks of September 11, 2001.
“Federal employees can accept volunteers or go beyond their funding in cases of emergency involving the safety of human life or the protection of property,” Westmoreland says. So federal firefighters and law enforcement officials clearly are exempt, Tiefer adds, as are judges presiding over criminal (but not necessarily civil) cases. Moreover, it’s the OMB, with help from the Justice Department, that makes the call on who is essential and who is not, and each federal department, as we see above in the judicial example, has formulated its shutdown protocols. Westmoreland writes:
There has been a lot of legal interpretation (including during the Reagan and Clinton Administrations) of what this means. Overall, it has been interpreted narrowly but not rigidly. But the threat to life or property has to be “imminent.” Air-traffic controllers and meat inspectors can generally keep working. People writing checks or doing maintenance generally cannot.