Congress appears to be on track to trigger a government shutdown on October 1, 2023, because it is not expected to pass the 12 appropriations bills that fund government operations before the start of the new fiscal year.

Why do government shutdowns happen?

Under the Antideficiency Act (initially passed in 1884 and amended in 1950), federal agencies cannot spend or obligate any money without an appropriation (or other approval) from Congress. When Congress fails to enact the 12 annual appropriation bills, federal agencies must cease all non-essential functions until Congress acts. This is known as a government shutdown. If Congress enacts some but not all of the 12 appropriations bills, only agencies without appropriations have to shut down; this is known as a partial shutdown.

What happens when that occurs?

During shutdowns, many federal employees are told not to report for work, though under a 2019 law they get paid retroactively when the shutdown ends. Government employees who provide what are deemed essential services, such as air traffic control and law enforcement, continue to work, but don’t get paid until Congress takes action to end the shutdown. All this applies only to the roughly 25% of federal spending subject to annual appropriation by Congress.
Benefits such as Social Security and Medicare continue to flow because they are authorized by Congress in laws that do not need annual approval (although the services offered by Social Security benefit offices may be limited during a shutdown). In addition, the Treasury can continue to pay interest on U.S. Treasury debt on time.

Shutdowns can be disruptive, leading to delays in processing applications for passports, small business loans, or government benefits; shuttered visitor centers and bathrooms at national parks; fewer food-safety inspections; and various inconveniences. Shutdowns are sufficiently likely that the White House Office of Management & Budget posts detailed contingency plans that government agencies maintain for shutdowns, as well as a 51-page Q&A on shutdown procedures.

The plans are often quite specific. The Securities and Exchange Commission’s contingency plan, for instance, cautions: “During the shutdown, employees who have not been designated as excepted may not volunteer to work without pay. Such voluntary services are a violation of the Antideficiency Act and will not be permitted under any circumstances.” The Advisory Council on Historic Preservation says, “A staff person will be instructed to ensure that, at the end of the last day of work with appropriated funds, lights and electronic devices not needed during the shutdown are turned off.” Some agencies say operations will continue if they haven’t spent previously appropriated sums or if they have income from fees that they can tap. The National Gallery of Art, for instance, says it will remain open as long as it can tap such reserves, but will have to close if the shutdown lingers. And the Centers for Disease Control says that 46% of its employees (or 6,448 individuals) will remain on the job, including 2,518 who are “exempt” because their activities or positions are funded outside of the usual annual appropriation process, and 3,930 who are “excepted” because their activities are deemed necessary by implication, or for the safely of human life or protection of property.

What about the courts and Congress?

In a 1981 opinion, Attorney General Benjamin Civiletti said that the president could continue to exercise his constitutional responsibilities during a shutdown. With that logic, lawyers for the federal courts and Congress have said that judges and members of Congress – and those who support them in their essential duties – can stay on the job even if the appropriations bills that fund them lapse. But some judicial and congressional employees are furloughed.

In a shutdown, according to the Administrative Office of the U.S. Courts, federal courts continue to operate for a while by drawing on fees they have collected (as distinguished from appropriations) and by delaying new hires, non-case related travel, etc. If the shutdown is prolonged and those funds are spent, then the courts say they can continue work that supports their constitutional powers.

As for Congress, the Congressional Research Service says, “Due to their constitutional responsibilities and a permanent appropriation for congressional pay, members of Congress are not subject to furlough.” Only those congressional staffers whose work is “required to support Congress with its constitutional responsibilities or those necessary to protect life and property” can remain on the job. But even those congressional staff don’t get paid during a shutdown, though they do get paid retroactively.

Why does a shutdown look likely in the fall of 2023?

In June 2023, with the backing of Republican leaders in the House and Senate, Congress passed and President Biden signed the Fiscal Responsibility Act, which lifted the ceiling on the federal debt and set limits on annual appropriated spending—one for defense, one for non-defense—for the fiscal years 2024 (which begins October 1, 2023) and 2025.

At the same, the expectations were that this settled the overall size of the appropriations bills, and Congress would pass 12 bills that added up to the agreed-upon levels. The Senate Appropriations Committee has followed that path and has passed all 12 appropriations bills with bipartisan support. But House Republicans, unhappy with the agreement Speaker Kevin McCarthy struck with the White House, want to spend less than the levels specified in the Fiscal Responsibility Act—much to the consternation of Democrats and the White House, which says President Biden would veto the appropriations bills that are pending in the House. The House bills also include provisions on abortion, contraception, regulation of tobacco, and healthcare for trans persons that aren’t likely to pass the Senate.

When the House and Senate pass different bills, the next step is a conference committee at which the two chambers are supposed to forge a compromise, which goes to a vote in each chamber before going to the president. That is likely to be very contentious this year—and there is not much time.

That is not an insignificant consideration, it is the consideration. No system of justice can

survive if its citizens lose faith in it: “because even the appearance of questionable impartiality

poses a significant threat to these fundamental values, Congress created a very broad § 455(a) net,

one that would ensnare not only those actually lacking impartiality, but also those whose

impartiality might appear questionable to a reasonable person.” Bilzerian, 729 F. Supp. 2d at 22

(emphasis in original) (citing Liteky, 510 U.S. at 548). “Any question of a judge’s impartiality

threatens the purity of the judicial process and its institutions.” Potashnick, 609 F.2d at 1111 (5th

Cir. 1980).

These proceedings are indeed historic. The public interest is not in the perception of a rush

to judgment or a show trial contaminated by the appearance of a partial presiding judge, but in a

fair proceeding guaranteeing fundamental human and constitutional rights. Anything less will

rightly call into question the very legitimacy of these proceedings and cause irreparable damage

to our judicial system for generations to come. The public must have confidence that President

Trump’s constitutional rights are being protected by an unbiased judicial officer. No president is a

king, but every president is a United States citizen entitled to the protections and rights guaranteed

by the U.S. Constitution.



CONCLUSION

The Court should overrule the government’s objections and grant the Motion. Additionally,

to ensure the Court is fully apprised on this crucial motion, President Trump respectfully requests

the Court schedule a hearing at the earliest opportunity.