BY ART CHANCE
SENIOR CONTRIBUTOR
My conservative/Republican friends have been having a chuckle during the current “partial shutdown” of the federal government about the notion of “non-essential” employees.
It usually goes something like, “if they’re not essential, why do we have them at all?” It’s a valid question, but it does have a rational answer.
Since nobody in America under about 50 years of age who isn’t an autodidact knows anything about Civics, US Government, or US History – those used to be classes taught in schools and colleges – let’s do some elementary Civics so we’re all on the same page. The power of the American People is invested in the Congress.
Before radio and television, the President was just a bureaucrat except in time of war. Even in war, the President’s role is to execute the will of Congress; this is what that republican democracy stuff is all about; the Congress directs and the President executes that direction.
In today’s situation, the Congress has not directed since there is no appropriation of funds for some, only some, operations of the Federal government.
Those operations of government for which there is not an appropriation have no authority to operate. The President cannot shut down the government; if the Congress has authorized a program and appropriated funds for that program’s operation, the President must operate that program, and the Supreme Court has directed Presidents to operate congressionally authorized programs despite the President’s objection to that program.
The same thing has happened under State law here in Alaska when a Governor has objected to a legislatively authorized program and refused to execute that program; in Kelly v. Hammond back in the ‘70s the Alaska Supreme Court ordered Governor Hammond to execute a Legislative program despite his objections to that program.
In the current standoff, the Congress has not authorized an appropriation for several Federal departments. Without an appropriation, these departments cannot operate and consequently almost all of their operations have ceased and their employees have been furloughed. The furloughed employees have been described as “non-essential,” so let’s discuss what the term “non-essential” means.
Unless it is hidden in some obscure Office of Personnel Management regulation, the Federal government doesn’t have a bright line definition distinguishing between essential and non-essential employees; it seems to be an ad hoc determination for the federal government.
The first threshold is whether the program continues to have a legal existence. Whether it is the US Army or the Bureau of Tea Tasting, yes there is one, or at least there used to be, if the authorization for the program has been repealed or allowed to expire, the program simply ceases to exist and along with it, its employees cease to be employed.
The second threshold is if the program still exists, is there an appropriation with which to operate it. This is where we are today; the programs at issue still have a statutory authorization but there is no money with which to operate them.
If there is no money to operate a program and pay its employees, the employees are furloughed. A furlough is a release from duty without pay but not a separation from employment like a dismissal or termination. If a program’s authorization were repealed or allowed to expire, its employees would be dismissed or laid off, both of which are separations of the employment relationship to a greater or lesser degree.
A furloughed employee remains an employee but they are relieved from duty and are not being paid. The most important distinction is that when an employee is dismissed or laid off, all of their accrued benefits such as paid leave or their retirement contributions are available to them if they desire to withdraw them; a furloughed employee has a limited or no right to access accrued benefits because it is assumed that a furloughed employee will return to work and pay status.
Now, we get to essential. The general definition of an essential government employee is one whose job is essential to protect public safety and health.
There is all sorts of room around the edges of such a definition. Currently, the federal government has declared some employees essential, ordered them to come to work, and promised them that while they’re not being paid, they will be paid when there is an appropriation from which to pay them.
I think it is a good question as to whether the federal government actually has the authority to order them to work only on the promise of being paid some time.
So far, the employees and their unions are going along with it but federal employees haven’t actually missed a payday yet; we’ll see how cooperative they are after Jan. 14. We seem to already be getting some “Blue Flu” with TSA employees, so when all the employees ordered to work don’t get paid on the next payday it might get interesting.
The non-essential employees are those determined to not be necessary to public safety and health, and they’ve simply been told to stay home and not perform any of their job duties. It is presumed that when there is an appropriation they will get back pay because they were able and available for work, the government had not separated them, and the government couldn’t offer them work.
Yes, the government could have separated them or laid them off when the appropriation expired, but it would have cost hundreds of millions of dollars to pay off their accrued benefits. We’ve struggled with this under State law when we had lean times and needed to lay off employees, but confronted the fact that it was cheaper to continue paying them than it was to pay them off.
So, there are two big events on the horizon; Federal employees missing their paycheck on the 14th and the Department of Agriculture running out of money to recharge food stamp/EBT cards on, I think, February 1. There will be some union organized opposition to the government, and specifically to the Trump Administration since the unions are all Democrat lackeys, when there are no paychecks.
It will be made to look like the end of the World on the TV, but most federal employees, and especially those with badges and guns, will continue to work.
The real test is when the EBT cards don’t recharge; the Left may get their Helter-Skelter they’ve been wanting since the Sixties.
Art Chance is a retired Director of Labor Relations for the State of Alaska, formerly of Juneau and now living in Anchorage. He is the author of the book, “Red on Blue, Establishing a Republican Governance,” available at Amazon.
