President Donald Trump and Office of Management and Budget Director Russell Vought have repeatedly threatened to use the government shutdown as a pretext to escalate their lawless attacks on those they believe are enemies of the administration. Before the shutdown even began, Vought suggested the possibility of firing federal workers en masse if the Democrats refused to knuckle under. Then, in the shutdown’s earliest days, the president announced he was cutting billions of dollars in funding that had previously been headed to states that voted for Kamala Harris in 2024. And on Tuesday, the administration threatened to deny back pay to furloughed federal employees when the shutdown ends.
Such a move would break a solemn obligation to hardworking civil servants who have been forced to sit at home through no fault of their own. It would depart from a solid body of precedent, in which Congress has provided back pay at the end of every shutdown it has resolved in the past 50 years. And, most importantly, it would violate a 2019 law that Congress overwhelmingly passed, and Trump himself signed, to guarantee back pay to federal workers at the end of any future shutdown.
For many years, there was no guarantee that Congress would make federal workers whole.
A bit of background: When Congress and the president fail to agree on annual spending bills, federal programs funded by those bills generally must stop. This “lapse in appropriations” has happened 21 times since 1976. Colloquially, we tend to call these lapses “government shutdowns.” That’s a bit of a misnomer, because many of the functions of government actually continue during the “shutdown.” They include activities that are funded by permanent appropriations (like Social Security checks), as well as activities that are necessary to protect the safety of life or property (such as air traffic control).
Until Congress and the president agree on a new spending bill, though, federal workers will not receive paychecks. And if their programs lack funding and are not among the functions that continue during the shutdown, they will be furloughed.
Like other workers, federal employees count on their paychecks. And it’s not their fault when Congress and the president can’t agree on a budget. So, every time Congress has passed a bill ending a shutdown, the legislation has included a provision authorizing back pay to federal workers — both those who worked without pay during the shutdown, and those who were sent home.
For many years, though, there was no guarantee that Congress would make federal workers whole. These civil servants could never be sure whether this would be the time they’d be left in the lurch.
The issue came to a head during the first Trump administration, when the president provoked the longest government shutdown in American history — 35 days — to strong-arm Congress into fully funding his proposed border wall. The length of the impasse highlighted the unfairness of making workers wait and hope that they would eventually be paid — and the risk that these valued employees would leave federal service.
So Congress responded in 2019 by adopting the Government Employee Fair Treatment Act, to guarantee that federal employees would receive back pay at the conclusion of any future shutdown. The Senate backed the bill unanimously; the House passed it with only a handful of “no” votes; and President Trump signed it.
The administration’s new reading would mean that the law wasn’t a promise at all — just a false assurance.
The new law provided that every federal employee “furloughed as a result of a covered lapse in appropriations shall be paid for the period of the lapse in appropriations, and each excepted employee who is required to perform work during a covered lapse in appropriations shall be paid for such work, at the employee’s standard rate of pay, at the earliest date possible after the lapse in appropriations ends, regardless of scheduled pay dates, and subject to the enactment of appropriations Acts ending the lapse.”
Since 2019, it has been commonly understood that, in a future shutdown, furloughed employees would be guaranteed to be paid — and that they would receive their back pay as soon as possible after Congress passed the law reopening the government.
Even the Trump administration endorsed that view. As recently as September of this year, Trump’s Office of Personnel Management issued a “Guidance for Shutdown Furloughs” with a series of questions and answers. In response to the question, “Will employees who are furloughed get paid?” the document offers an unqualified answer: “Yes. After the lapse in appropriations has ended, employees who were furloughed as the result of the lapse will receive retroactive pay for those furlough periods.” Now, though, the Trump administration is trying to rewrite that guidance and the law itself. Vought’s Office of Management and Budget is circulating a memo that reinterprets the 2019 legislation out of existence. The memo argues that — despite what everybody thought just a few weeks ago — the 2019 statute does not in fact guarantee that furloughed workers will receive back pay. The memo points to an amendment to the statute that makes back pay “subject to the enactment of appropriations Acts ending the lapse.” That language, the OMB says, means that furloughed workers will be entitled to back pay only if Congress specifically spells that out in the law reopening the government. But the meaning of the “subject to the enactment” language is plain enough — that federal workers won’t get paid until Congress “enact[s]” a law “ending the lapse,” at which point they must get paid “at the earliest date possible.” By contrast, OMB’s new reading would recreate exactly the procedure Congress sought to overturn when it enacted the new law in 2019. The plain goal of the law, expressed by its bipartisan supporters during its enactment, was to ensure that federal workers would never have to doubt whether they’d be paid at the end of a shutdown. It was, as conservative Republican Rep. Greg Gianforte said, “a promise to our dedicated civil servants, both those forced to the sidelines and those still hard at work without pay.” The administration’s new reading would mean that the law wasn’t a promise at all — just a false assurance. That is simply not a plausible reading of the law’s text. The new threat to deny back pay to federal workers at the end of the shutdown is yet another lawless abuse attempted by this White House. It demonstrates, once again, that Trump’s interest is not in resolving the impasse so much as it is in punishing those he believes to be his enemies.
Samuel Bagenstos
Samuel Bagenstos was the general counsel to the Office of Management and Budget, and then the general counsel to the Department of Health and Human Services, in the Biden Administration. He teaches law and public policy at the University of Michigan. 
