The House just unanimously passed a bill allowing federal workers to get back pay. The Senate and President are in support so this should soon be law. This measure was not controversial. Even Congress realizes that they, not the Federal workers, are the reason these people are not working and Congress, not the workers, is the problem. While they are getting paid without working (government efficiency?) that workers should miss car payments, house payments, and be unable to pay other crucial expenses while Congress figures stuff out is a hard position to defend.

However, in doing so, they may have un-wittingly removed the legal justification for the shutdown itself. Modern government shutdowns date back to the Carter administration’s interpretation of the, at the time obscure antideficiency act (for an overview of the history see here or here). In short, government cannot enter into a contract without funding – so workers cannot work with the expectation that Congress will fund them (even though  they probably will). Now with the passage of a bill to guarantee backpay (here), workers would no longer be working with a hope that Congress might or expectation that Congress will fund, but instead a legislative guarantee.

A lawyer may need to take a closer look, but from this layman’s eyes it is time for Federal workers to go back to work, and they don’t need a dysfunctional Congress to agree first. Perhaps in this case two wrongs of Congressional dysfunction have made a right?

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