clock menu more-arrow no yes mobile

Filed under:

Immigration agents keep working during a shutdown. Most EPA researchers don’t.

The government’s most conservative functions stay open during shutdown.

Chip Somodevilla/Getty Images

If Congress can’t reach an agreement to pass a funding bill by midnight Friday, the federal government will shut down.

But not all of it.

For one thing, there are the parts of the federal government that aren’t funded through the congressional appropriations process, and whose funding therefore won’t have run out. But even some government employees and agencies that are, in theory, covered by a shutdown are allowed to keep running — federal law (put in place after the shutdowns of the 1990s) says that some kinds of work “may continue to be performed during a lapse in appropriations,” according to the Office of Management and Budget, and that employees doing that work are “excepted” from a shutdown.

But even though the OMB uses the labels “excepted” and “non-excepted,” much of the federal government — and the public — thinks of it differently: “Essential” government functions stay open during a shutdown, while “nonessential” ones shut down; “essential” employees go to work, while “nonessential” ones stay home.

The law sets up types of excepted employees — including emergency employees, “whose work, if suspended, would threaten the safety of human life or the protection of property” — but it’s usually up to each agency to sort its employees into the proper bucket. So who’s excepted — or, if you will, essential — is in part a value judgment.

Which means that the government that operates during a shutdown ultimately expresses different values than the one that operates during normal times.

The government that moves forward, the “essential” parts of the government, in a shutdown are the parts that conservatives tend to like, and that this administration in particular fetishizes — the military, homeland security, law enforcement. The parts of the federal government that it most distrusts, and that it has worked hardest to dismantle — from regulatory investigations to the production of reports and statistics — are most deeply hurt.

Ideologically, a shutdown shuts down one government — and keeps another one running.

“Law enforcement” means a very particular thing when a shutdown happens

Despite President Trump’s tendency to point to the military as the biggest victim of a potential shutdown, it’s not — the military is, of course, generally considered “essential” to the functioning of the US government.

And just as law enforcement agents have become the domestic mirror image of soldiers in conservative identity politics, they’re also considered essential employees across all government agencies. That means that the overwhelming majority of Border Patrol, customs officers, and Immigration and Customs Enforcement agents will remain on duty through a shutdown — and that the Trump administration’s stepped-up enforcement of immigration laws, including greater arrests of immigrants without criminal records, is as essential as anything else.

But it isn’t in itself essential to facilitate legal immigration to the US. US Citizenship and Immigration Services will largely be unaffected by the shutdown simply because it doesn’t get its money from Congress; it’s funded by the fees it charges applicants. But companies seeking work visas for their employees might run into trouble, because the Department of Labor office that needs to approve their petition would be closed.

Overseas, consular offices, while they could stay open over a brief shutdown by running off fee money, could end up being closed if the shutdown is prolonged — making it impossible for people in those countries to get approved to come to the US until the government reopened.

And while the US Refugee Admissions Program isn’t technically subject to shutdown, the Obama administration stopped bringing refugees to the US during the 2013 shutdown anyway, because of the anticipated difficulty getting Social Security cards and other vital resources to refugees once they arrived in the United States. Feeding refugees is considered an essential function of the State Department, but resettling them permanently isn’t on the same level.

That’s an appropriate balance if you think the parts of the US government that exist to punish lawbreakers are more essential to day-to-day operations than the parts that allow people to follow the laws. But that is, itself, a skewed view of what’s most important about the government — and about who can afford to wait for days or weeks while a shutdown is resolved in Washington.

A government that provides routine inspections and generates information isn’t “essential”

Not all “law enforcement” or security efforts are created equal under shutdown plans, of course. Drug Enforcement Administration and Bureau of Alcohol, Tobacco, and Firearms field offices are exempt from shutdowns; many Food and Drug Administration officials working on investigations, however, are not. The TSA is fully exempt, but the Centers for Disease Control and Prevention had to furlough a large fraction of its staff. Civil litigation efforts at the Department of Justice (including antitrust investigations) would cease; the Occupational Safety and Health Administration and the Mine Health and Safety Administration would be, temporarily, all but gutted.

In a way, all of these are either security or law enforcement functions of government. But the “essential” government doesn’t think that every official whose job is to check compliance with the laws is an essential one — even if those laws could, in theory, be protecting people from health and safety hazards.

At OSHA, the FDA, and the Mine Health and Safety Administration, for example, what gets shut down are “routine” inspections and investigations. Emergency efforts — mines near collapse, large-scale food or drug recalls — can proceed or be initiated, but the day-to-day compliance efforts that are supposed to prevent those emergencies from happening can’t.

For progressives who see consumer protection as an important function of the federal government, this is arbitrary, even insulting (though partisans can take some glee in knowing that the Consumer Financial Protection Bureau itself is unaffected by shutdown). For libertarians and business-minded conservatives who see overregulation and red tape as a serious chilling effect on entrepreneurship in America, it’s an (admittedly extreme) version of the regulatory state they’d like to see to begin with.

And then there are the parts of the government dedicated primarily to the production of knowledge — a function that’s been underappreciated in the past, but that has come to the fore as worries have spread that the Trump administration is neglecting it. At the Environmental Protection Agency, where administrator Scott Pruitt is openly contemptuous of employees and where some employees have all but started smuggling out data before it gets destroyed, the overwhelming majority of staff would be furloughed.

The Bureau of Labor Statistics would stop releasing reports, as would the Bureau of Justice Statistics. Work at the US Census Bureau, which is already behind in preparations for the 2020 census, would grind to a halt.

These are things that people who care about “good government” care about. They’re not, for the most part, high priorities for people who care about “small government.”

This might explain why, as a shutdown looms, the burden is often perceived from the outside to be on Democrats to avoid it — not just because they’re the ones, in this case, refusing to vote for a bill that keeps the government open for another few weeks but doesn’t provide a permanent solution for Deferred Action for Childhood Arrivals (DACA) recipients, but because they’re the ones who believe most firmly that these “nonessential” government functions really are essential.

Government is made of people

But given all this, it’s important to remember: Not even the most radical small-government ideologue in Congress ever prefers shutting down the government to keeping it open on their terms. That’s because when a shutdown actually happens, it calls attention to the fact that government is made of people — and that those people are both more interdependent on each other (even the “nonessential” ones) and less politicized than the functions they represent.

Even “essential” employees at FEMA or the US Border Patrol, for example, suffer setbacks in morale and job function when they don’t have any support staff to help them, because the field agents are “essential” but support staff is not. The military may itself be deemed essential, but delays in paychecks, and the inability to request leave, can grind down service members and their families.

The same is true on the other side: Americans who interact with the government for benefits. Older middle-class Americans might be better off than those living in poverty under a shutdown, because Social Security and Medicare are exempt (not congressionally appropriated) while Temporary Assistance for Needy Families may not — but if they lose their Social Security cards, they won’t be able to get new ones issued.

And even Americans who dislike the idea of federal land ownership still go to national parks and monuments — which is why there was such a fuss over the closure of war memorials during the 2013 shutdown, and why the Trump administration is reportedly trying to find a way to keep parks open this time.

It’s a broad truth of American politics that people may not like “government” in the abstract, but they like the particular ways government benefits them. Shutdowns bring that dynamic to the fore: They force people to reckon with the fact that while concepts like “cutting the fat” and “waste, fraud, and abuse” are broadly appealing, agreeing on what counts as fat or waste is much harder.

And it makes apparent that living in uncertainty day to day isn’t actually a way to go about one’s life, whether one is a government employee or someone whose life is in a government employee’s hands.

The government that survives a shutdown is a government that is much more hobbled in some respects than others, but it isn’t the government anyone wants.