Lawsuit Questions Constitutionality of Excepted Employees Faced with Shutdown

A lawsuit filed by the National Treasury Employees Union (NTEU) on Jan. 9 takes fault with section 1342 of the Antideficiency Act, which the Office of Management and Budget (OMB) used to require thousands of federal employees to report to work without pay indefinitely as “excepted employees.”

The NTEU represents about 150,000 federal government employees, tens of thousands of which are affected by the OMB directive implementing the Antideficiency Act. The NTEU points out that “the Antideficiency Act only authorizes the executive branch to require employees to work, without pay, in limited circumstances involving an imminent threat to human life or property” and that calling thousands of IRS employees back to work without pay to process tax refunds might not qualify as a situation posing an imminent threat to human life and property.

“Everyone I know who works for the federal government is really struggling to make ends meet,” Stephanie Colbert, a furloughed IRS employee who has worked with the federal government for 35 years, told GovLoop. “I have not been called back, but I know some who have and who now have to work without pay. You have some creditors who are willing to work with you and unfortunately some who are not. Some people are applying for unemployment, but that takes weeks to process. Just having to go through the paperwork alone for unemployment is crazy.”“When you don’t see the dedication and sacrifice it takes to be a federal employee, you can’t wrap your head around it,” Colbert added. “The IRS particularly, we have really dedicated people who want to do a good job, who care a lot about the public. I love what I do, which is educating small business owners on their financial obligations. The work that I do is more than just a job, it’s getting to know people, it’s making their lives better.”

The NTEU lawsuit asserts that the act of requiring federal employees to work indefinitely without pay violates Article I, section 9, clause 7 of the Constitution which prevents the executive branch from “authorizing payment, or incurring obligations to pay, absent appropriations that have been made pursuant to laws enacted by Congress… In purporting to obligate the United States to spend money that has not been appropriated, the executive branch has usurped the legislative function by transferring to the President the power over spending that the Constitution vests in Congress.”

The plaintiff, NTEU, seeks the following declarations as per the lawsuit:

1. Section 1342 of the Antideficiency Act is unconstitutional.
2. The OMB directive is inconsistent with the Antideficiency Act.

“If employees are working, they must be paid- and if there is not money to pay them, then they should not be working,” said NTEU National President Tony Reardon.

“When you don’t see the dedication and sacrifice it takes to be a federal employee, you can’t wrap your head around it,” Colbert said. “The IRS particularly, we have really dedicated people who want to do a good job, who care a lot about the public. I love what I do, which is educating small business owners on their financial obligations. The work that I do is more than just a job, it’s getting to know people, it’s making their lives better.”

At a hearing on Jan. 15, District Judge Richard J. Leon declined to grant temporary restraining orders requested by the NTEU, the National Air Traffic Controllers Association, and a separate group of federal employees, Politico reported.

Judge Leon stated that granting the orders would “create chaos and confusion” in a tense political climate. “It’s hard not to empathize with the plaintiffs,” the judge said. However, he went on to add that “the judiciary is not, and will not, be leverage in the internal struggle between the branches of government.”

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