New OMB Memo Turns the Screws on Schumer Shutdown … But In Which Direction?

Schumer Shutdown hardball? Incrementalism? Or a bit of a retreat?

With Democrats still refusing to pass the clean CR in the Senate, the White House has begun unfolding its plans to turn the screws on Chuck Schumer. However, Donald Trump and Russ Vought still seem hesitant to drop the nuclear option of simply firing mass numbers of bureaucrats, at least for the moment. Axios’ Marc Caputo reports that a new memo from Vought’s OMB argues that furloughed workers will not necessarily qualify for back pay after the shutdown ends:

Furloughed federal workers aren’t guaranteed compensation for their forced time off during the government shutdown, according to a draft White House memo described to Axios by three sources.

Why it matters: If the White House acts on that legal analysis, it would dramatically escalate President Trump’s pressure on Senate Democrats to end the week-old shutdown by denying back pay to as many as 750,000 federal workers after the shutdown.

“Why it matters” is standard Axios boilerplate. However, it takes on a more acute meaning for this story, since the White House and OMB appear to have backed down from their plan to simply eliminate these jobs rather than furlough the workers. Vought argued in the run-up to the October 1 budget impasse that a shutdown authorized the White House and OMB to permanently end positions in the executive branch as the president sees fit, a position that has yet to be tested in court. Trump supporters looked forward to that fight, however, as a golden opportunity to truly drain the swamp. 

With that in mind, a fight over back pay for furloughed workers feels almost like an anti-climax. Why argue over back pay when Vought planned to fire these workers instead? Perhaps it could represent an incremental move toward full termination for such employees as a pressure point on Senate Democrats. It also could be interpreted as a retreat by Vought or Trump, perhaps as a way to dial down the heat in DC over the impasse. 

At any rate, this White House leak makes it appear that the goals have grown considerably more modest in the last few days. This may actually make the legal position worse for OMB too, as Congress directly addressed back pay for furloughed workers in 2019 after the most recent budget-impasse shutdown. Caputo reminds us of that episode, and the legal box that OMB may find itself in if it only furloughs these workers:

At issue is the ”Government Employee Fair Treatment Act of 2019″ that Trump signed during the last government shutdown, which lasted a record 35 days.

• Called GEFTA, the law has been widely interpreted as ensuring that furloughed workers automatically would be compensated after future shutdowns.
• But the new White House memo from the Office of Management and Budget argues that GEFTA has been misconstrued or, in the words of one source, is “deficient” because it was amended nine days later, on Jan. 25, 2019.

The White House argues that the amendment now requires Congress to specifically appropriate the funds for back pay. That doesn’t make a lot of sense, though, since Congress didn’t need to pass a statute to grant itself authority for specific appropriations. They have that authority from the Constitution and could have always made specific appropriations for back pay in the case of budget impasse interruptions to compensation. One can argue that it’s not necessary at all, as renewed appropriations would likely include the funds for full compensation for all federal employees, but back pay has been a point of contention in every budget shutdown and got used each time as leverage in negotiations. The only reason for Congress to pass GEFTA would be to make that process automatic, without a specific appropriation from Congress, and provide back pay for workers furloughed by budget impasses without horse-trading to get it. 

In other words, it’s a strange attempt at leverage, given the circumstances. It’s relatively low stakes even for this kind of low-stakes standoff. OMB may have a stronger legal case to permanently lay off these workers, and yet they seem to be pursuing the weaker position, in more ways than one.  

Perhaps this is an incremental step in the pressure campaign. If so, don’t expect it to have much impact. The White House has yet to do much swamp-draining in this exercise, and this doesn’t exactly raise confidence that they have the stomach for it — yet. 

Editor’s Note: The Schumer Shutdown is here. Rather than put the American people first, Chuck Schumer and the radical Democrats forced a government shutdown for healthcare for illegals. They own this.

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