Analysis-Trump would wade into uncharted legal waters with mass shutdown firings, experts say

Written by: Bo Erickson and Courtney Rozen

WASHINGTON (Reuters) – President Donald Trump has repeatedly tested the limits of executive authority since returning to office, exploring uncharted legal territory by threatening mass layoffs during the federal government shutdown, legal experts and lawmakers said.

The Republican president has aggressively sought cuts to the federal government this year and has repeatedly raised the possibility that the shutdown, now in its seventh day, will be used as justification for permanent layoffs. However, his administration did not take action on this issue.

Experts said that may be because neither federal courts nor the federal employees board, which oversees workers, have decided whether federal agencies can permanently cut staff during the shutdown.

“We are in largely uncharted territory,” University of Minnesota professor and administrative law expert Nick Bednar said this week.

Since 1981, there have been 15 federal government shutdowns in the United States that have furloughed hundreds of thousands of workers. But no president has sought to use the shutdown as the basis for large-scale layoffs.

Whether courts will uphold Trump’s reasoning depends on how they interpret the Antidefiiciency Act of 1884, which requires shutting down funding when Congress doesn’t approve it — a power the Constitution assigns to the legislature.

Trump came to office promising to restore and sharply reduce the federal government, and his administration has moved to lay off nearly 300,000 workers this year.

It sent mixed signals about plans to reduce staff during the shutdown. Trump said Sunday the layoffs were happening “right now.” But White House Press Secretary Karoline Leavitt said the next day that she was referring to workers furloughed (temporary, unpaid leave rather than permanent job losses) since the funds expired on October 1, and that the administration was still considering permanent cuts.

“There are some unresolved legal questions about this,” said Michigan Sen. Gary Peters, the top Democrat on the Senate panel that oversees government affairs.

“I think the courts will make a decision,” said Republican Senator Mike Rounds of South Dakota. “The president will do whatever he can to push through issues that he believes are appropriate to break this impasse.”

The White House and the Office of Management and Budget did not respond to requests for comment.

POTENTIAL LEGAL LIABILITY

Two major unions representing federal employees, AFGE and AFSCME, filed a lawsuit seeking to prevent management from laying off workers during the shutdown. They argued that the 1884 law prohibited such layoffs because the planning and administrative work they required was not allowed under the narrow exemption for activities to protect “life and property.”

The White House gave various reasons for possible layoffs. Leavitt recently told NPR’s “Morning Edition” that his goal is to “make cuts to save money in a responsible way, while respecting American taxpayers’ money, especially now that we’re in this financial crisis.”

Bednar, the law professor, said the precedent gives federal agencies “broad discretion” to initiate mass layoffs, called reductions in force, in response to budget shortfalls, and that federal courts can extend that discretion to cover shutdowns.

But Emory University appropriations law Professor Matthew Lawrence said any official who approves mass layoffs outside the legal parameters of the Deficiency Act could face stiff penalties.

“There are probably officials within the government right now trying to ask OMB why they think this is legal and whether they can provide adequate assurance that the agency will not have to worry about violating the law and the Constitution,” Lawrence said.

He added that no one had been prosecuted under the law, but violations remained subject to a five-year statute of limitations.

CALL FOR FEDERAL WORKERS HIT BY TRUMP AMENDMENTS

Federal employment lawyers have said that if the Trump administration fires federal workers during the shutdown, those employees could appeal.

One of those avenues is the Merit Systems Protection Board, a panel that reviews appeals from federal employees who believe they were fired for their political views or other reasons outlined in the law.

But Matthew Biggs, president of a union representing 6,500 NASA employees, said the administration is “gutting the institutions” that federal employees would normally turn to. The board could make initial decisions, but in the spring the appeal lost its quorum; That’s partly because Trump fired a member appointed by former President Joe Biden.

Biggs said his union’s “core issue” in the shutdown fight is whether lawmakers are taking steps to protect the money approved by Congress from attempts by the administration to misuse it.

Another avenue for federal employees is to appeal how they were fired. Civil service law requires agencies to prepare a detailed list of positions targeted for cuts, taking into account factors such as location and employees’ tenure. It could take weeks or months for agencies to complete the steps, according to the nonpartisan Partnership for Public Service.

“It’s hard to imagine that these agencies believe this won’t be challenged,” federal labor attorney Michelle F. Bercovici said of the possible layoffs.

(Reporting by Bo Erickson and Courtney Rozen, additional reporting by David Morgan and Daniel Wiessner; Editing by Scott Malone and Cynthia Osterman)