The current federal government shutdown, like all previous ones in the last century, was caused by an obscure law called the Anti-Deficiency Act.
The law prohibits federal agencies from spending money that Congress hasn’t specifically appropriated and exists to prevent the president or agency heads from writing hot checks. The law was codified in 1905, but provisions of it date almost to the nation’s founding, as it developed from the long-running struggle between the executive branch and Congress over control of federal spending.
The Constitution restricts the ability to allocate funds to Congress, but it leaves the president in charge of the various federal agencies and departments. It didn’t take long for administrations to realize that they could leverage this control to, in effect, extort Congress into spending money.
“Those who disburse the money are like a saucy boy who knows his grandfather will gratify him, and over-turns the sum allowed him at pleasure,” said Virginia Congressman John Randolph of the Democrat-Republican Party in 1806.
In the 19th century, presidents from all parties made it a common practice to spend money that hadn’t yet been authorized by Congress, much to the irritation of lawmakers of the time, according to Charles Tiefer, a law professor at the University of Baltimore.
“An agency official would run up bills well beyond what had been appropriated and then dare Congress to let the agency shut down,” he said. “If you were to look over the funding bills that were enacted in the late 1800s, you would see many with the title ‘deficiency acts’ — bills meant to deal with [the other type of] bills.”
In some cases, the spending bills were labeled as “urgent deficiencies,” indicating that Congress felt really pressured to make the appropriations, he notes.
Postmaster General David McKendree Key told Congress in 1879 that he needed an additional 34 percent on top of the money they had already allocated. When Congress balked, Key threatened to shut down all mail service, the principal form of mass communication at the time, until they gave him the funds. Congress quickly caved.
In other cases, the administration simply bought stuff on credit and stuck Congress with the bill — and sometimes for good reasons. Former President Abraham Lincoln authorized millions in funding to fight the Civil War, assuming that Congress would ratify his actions after the fact, which it ultimately did. Irritated members of Congress nevertheless responded in 1870 by prohibiting moving federal funds from one account to another and barring agencies from spending more than they had been allocated.
Congress went a step further in 1884 by prohibiting federal workers from appearing at their job even if they were willing to work for free. This was done on the apparent grounds that allowing them to work legally obligated the government to pay them, and this amounted to unauthorized spending, said Raymond Natter, a former Treasury Department lawyer now in private practice.
This rule and others limiting executive branch spending were codified as the Anti-Deficiency Act in 1905. “An officer or employee of the United States government or of the District of Columbia government may not accept voluntary services for either government or employ personal services exceeding that authorized by law except for emergencies involving the safety of human life or the protection of property,” it said.
Successive presidential administrations have broadened this exception, which currently covers about 450,000 of the estimated 800,000 federal employees who are not being paid.
Despite its significance in government shutdowns, prosecutions for the Anti-Deficiency Act are so rare that Tiefer struggled to think of even one. “You neither need nor want to imprison administration officials for budgetary practices. You just want to warn them and that suffices,” he said.
One attempt to pursue a criminal complaint not only failed, but ended up creating a new loophole in the law. Professor Laurence Tribe agreed in 1987 to draft a legal memo for the special prosecutor looking into the Iran-Contra matter during the Reagan administration. Tribe did this for free, prompting three conservative groups active at the time, Citizens for Reagan, the Conservative Campaign Fund, and the the National Defense Council Foundation, to file charges with the Justice Department alleging that he was violating the Anti-Deficiency Act.
The department declined to prosecute on the grounds that the act only applied in cases where the federal work had a specified minimum salary. That wasn’t the case for contributing a legal memo, so Tribe was permitted do it for free of his own volition. According to a Senate Appropriations Committee spokesman, such cases are very rare.
