The U.S. government shutdowns are hotly debated inside Congress as well as in the media. The following article from the National Constitution Center outlines the constitutional basis for Congress’s powers that can force the federal government into a shutdown.

[Excerpts of article published on the National Constitution Center website on 14 November 2023.]

By Scott Bomboy

The Constitution and Appropriations

Congressional authority to pass laws enabling a shutdown due to a funding gap (or a lack of direct funding) arises from the broad “powers of the purse” granted to Congress in the Constitution. This concept was part of the founders’ vision of the separation of powers. In Federalist No. 58, James Madison spelled out the basic concept: “This power over the purse may, in fact, be regarded as the most complete and effectual weapon with which any constitution can arm the immediate representatives of the people, for obtaining a redress of every grievance, and for carrying into effect every just and salutary measure.”

The Constitution grants these general powers to Congress in several ways. The Spending Clause in Article 1, Section 8, permits Congress to “lay and collect Taxes, Duties, Imposts, and Excises, to pay the Debts and provide for the common Defence and the general Welfare of the United States.”

The Appropriations Clause in Article I, Section 9, also states, “No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law.” …

“The power to control and direct the appropriations constitutes a most useful and salutary check upon profusion and extravagance, as well as upon corrupt influence and public speculation,” Justice Joseph Story wrote. “A regular account of the receipts and expenditures is required to be published, that the people may know, what money is expended, for what purposes, and by what authority.”

Simply, with no law or policy on the books to fund a department or agency, only jobs and tasks deemed critical by agencies or exempted under the Constitution will be carried out in agencies without a funded budget.

The Antideficiency Act and Shutdowns

An important factor in government shutdowns are the boundaries set by a statute dating back to 1884: the Antideficiency Act (31 U.S.C. §§ 1341-42, 1349-51, 1511-19). According to the Congressional Research Service, the act currently requires that federal obligations and expenditures remain within the amounts approved by Congress.

Specifically, a federal officer or employee “may not make or authorize an expenditure or obligation exceeding an amount available in an appropriation or fund for the expenditure or obligation.” The act’s plain language bars a federal agency from spending more than its total approved budget, and agencies cannot spend funds in a manner that violates any conditions placed on their budget spending. …

When a budget authority expires for a federal government agency, it experiences a “funding gap.” Under the Antideficiency Act, the agency must stop its operations, except in certain circumstances when continued activities are authorized by law. A government shutdown occurs when multiple agencies have funding gaps.

Currently, there are 12 appropriations bills in Congress that fund the federal government. In past years, a partial shutdown occurred when some but not all bills were approved by Congress. As of November 14, 2023, none of these 12 bills have been approved, which would lead to a full government shutdown.

Government Services Under a Shutdown

In general, many significant government services would continue in operation during a federal government shutdown. Even in a full government shutdown, activities exempted have included the mail; national security and homeland security; government-supplied medical services; air traffic control; power grid activities; criminal investigations; and disaster assistance. Social Security checks are also sent to recipients.

The Committee for a Responsible Federal Budget, a non-partisan, non-profit organization that tracks budgetary matters, said recently that agencies and services that could be affected include the National Park Service, government grant programs, certain applications at the Internal Revenue Service, and the government’s ability to send out SNAP benefits. In past years, approximately 850,000 federal government workers faced furloughs during full government shutdowns. Those remaining on the job would get retroactive pay. Congress also approved retroactive pay for those workers after their jobs were funded.

Also, Congress, the Supreme Court, and the president—under the Constitution—get paid regardless of a partial or full government shutdown. … Congress still gets paychecks during a shutdown. Article I, Section 6, says that members of Congress “shall receive a Compensation for their Services, to be ascertained by Law, and paid out of the Treasury of the United States.”

The Supreme Court and all appointed federal judges also get paid. Article III, Section 1, reads, “The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office.”

Scott Bomboy is the editor in chief of the National Constitution Center.