The Washington PostDemocracy Dies in Darkness

Trump is ignoring the law to keep the shutdown from causing him political pain

In past shutdowns, more of the government ceased operating.

President Trump presents fast food to be served to the Clemson Tigers football team on Monday. The shutdown meant the usual White House catering options weren't available. (Chris Kleponis/pool/EPA-EFE-REX)

Tens of thousands of previously furloughed federal employees returned to work this week — without pay — so the government could process tax refunds, oversee airplane safety, and inspect food and drugs. It was the Trump administration’s latest set of major changes to how agencies without funding operate, moves that it claims are simply an effort to make things “as painless as possible.”

But as someone who helped manage the government-wide response to the 2013 shutdown, I can tell you: President Trump’s White House is selling the American people a bill of goods.

It’s natural to want to reduce the harm from a shutdown. But that’s not really Trump’s goal. If it were, he would not be threatening to continue this one for months or years . Instead, he is changing precedents in a one-off manner to paper over problems and help favored constituencies, all to create political space to prolong the standoff. Trump is not concerned about making the shutdown painless for the American people — he’s concerned with making it painless for himself.

Since the Constitution says the government can spend only money that has been appropriated by Congress, there’s only so much that can legally be done during a shutdown to mitigate harm. The government provides a wide range of important services, and when it has no funding, most of those services must stop, and the people who provide them cannot get their paychecks. The law limits what activities can continue during a shutdown: those necessary to protect life or property, to carry out the president’s core constitutional responsibilities, and to operate programs that Congress has said should continue in the absence of funding.

But Trump has shunted aside legal and programmatic considerations in favor of two imperatives: keeping bad press to a minimum and keeping influential supporters happy.

Take national parks. During a shutdown, the Interior Department cannot legally maintain the full workforce needed to safely operate the parks; it can keep only a skeleton staff on the job to protect life or property. In 2013, the Obama administration closed parks as a result of this legal requirement — and we faced intense political criticism for it. But the Trump administration has chosen instead to keep them open with insufficient staffing. The predictable result: a buildup of garbage and human waste, safety risks to visitors, and damage to the parks themselves.

With the government shut down, we're trying to keep the chaos at bay in Joshua Tree

As public pressure intensified, Interior decided to divert user fees to pay for some park services. The National Parks Conservation Association has suggested that using these fees for operating expenses is illegal, and the group has requested that the department’s inspector general investigate. Even if it’s legal, this diversion uses money earmarked for long-term maintenance projects to ease the short-term political fallout from the shutdown. And the damage to the parks has already been done.

This is the same strategy Trump has applied to the entire government: putting forward patchwork solutions for his own benefit, regardless of long-term consequences or legal requirements.

President Trump spoke from the White House Jan. 19 and outlined a new proposal for border security, immigration reform and ending the shutdown. (Video: The Washington Post)

The clearest example is with tax refunds. The Internal Revenue Service has repeatedly determined, including multiple times during Trump’s administration, that tax refunds legally cannot be paid during a shutdown. There is no funding for the personnel who process them and no evidence in the law that Congress wanted refunds to occur as normal during a shutdown.

This distinguishes tax refunds from Social Security payments, which Congress has made clear must continue during a shutdown by requiring that they be made on a regular basis — because not making those payments would damage the program. There is no such timing requirement for tax refunds; in fact, the IRS does not even owe interest on unpaid refunds until 45 days after the April 15 filing deadline. There could be a justification for making payments if the shutdown stretched long enough that the government would owe significant interest, but that wouldn’t be until late May.

How to end the government shutdown — with neither side losing

But when the House recently prepared to vote on legislation to fund the IRS and thereby ensure that tax refunds were sent, the administration reversed its previous determination, ignoring legal restrictions and announcing that it would provide refunds as normal for anyone who files while the government is closed, rather than simply agreeing to open the agency.

The administration has focused on helping favored constituencies, as well. One day after the head of the Mortgage Bankers Association pressured a high-ranking Treasury Department official to restart income verifications for mortgages because their stoppage was hurting the industry, the IRS announced that it would pay for the program with user fees. The Interior Department has been pulling out all the stops to limit the shutdown’s effects on the oil and gas industry, including by rushing ahead with controversial drilling projects despite curtailed public input and inadequate environmental reviews.

Meanwhile, officials at the Department of Housing and Urban Development are reportedly scrambling to keep thousands of low-income tenants from being evicted after the administration somehow failed to realize the effects the shutdown would have on a critical rent-assistance program and did not take action in time to protect them.

And while it was welcome news that the Department of Agriculture found a legal way to provide another month of access to nutrition programs that help low-income families, the administration inexplicably waited more than two weeks into the shutdown to announce the plan.

Why should we care that the administration is playing fast and loose with the rules if it means programs that help people can keep operating?

Because it’s critical that our elected officials act within legal constraints; if they can break the law with impunity now, nothing prevents them from doing so later. This politicized approach leaves programs for the most vulnerable at risk, as well, particularly if they are not aligned with the interests of powerful industries or if their concerns do not garner wall-to-wall press coverage.

How can the government force people to work without pay indefinitely?

Finally, the purpose of these changes is to enable Trump to prolong the shutdown. So while the government will provide important short-term relief in particular cases, millions of small businesses will continue to be denied access to federally backed loans, food safety inspections will continue to be curtailed and 800,000 federal workers — including law enforcement and the Secret Service officers guarding the president and first family — will continue to wait for their pay. (An unknown number of people who work for government contractors will continue to go without pay, as well.)

There’s no question that shutdowns are difficult. During the 2013 shutdown, when Republicans refused to fund the government in an effort to block the Affordable Care Act, the law forced us to close down programs we cared deeply for, ones that the Obama administration had fiercely defended. That’s the nature of shutdowns — you cannot just improvise ways around them, because the government legally cannot continue much of its important work.

Luckily, there’s a way to make sure people get their tax refunds, families receive nutrition assistance, and parks are staffed and protected: fund the government through the bipartisan deal that lawmakers reached in December and that the House passed this month. It just requires Trump and the GOP to act.

This article has been updated.