As the government shutdown has dragged on, the Trump administration has made a series of major changes to how agencies without funding are operating, which 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 Trump’s goal. If it were, he would not be threatening to continue this one for months or years. Instead, he is making changes to past precedents in a one-off manner to paper over problems and help favored constituencies, all to create the 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 only spend funds that have 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 dictates that only limited 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 core imperatives: keeping bad press to a minimum and keeping influential supporters happy.
Take the national parks. During a shutdown, the Interior Department cannot legally maintain the full staff needed to safely operate the parks; they can only keep on a skeleton staff necessary to protect life or property. In 2013, the Obama administration closed parks as a result of this legal requirement — and we faced intense political criticismfor 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.
As public pressure intensified, Interior decided to divert user fees to pay for 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 fee diversion uses funds earmarked for long-term maintenance projects to reduce the short-term political fallout from the shutdown. And the damage to the parks from Trump’s cavalier policy has already been done.
This is the same strategy Trump has been applying to the entire government: putting forward patchwork solutions for his own benefit, regardless of long-term consequences or legal requirements.
Nowhere is the imperative to put short-term political gain before all else clearer than with tax refunds. The Internal Revenue Service (IRS) has repeatedly determined that tax refunds legally cannot be paid during a shutdown, including twice under the Trump administration. There is no funding for the personnel who process refunds and no evidence in the law that Congress wanted these payments to occur as normal during a shutdown.
This distinguishes tax refunds from Social Security payments, which Congress 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.
But when the House of Representatives recently sought to vote on legislation to fund the IRS and thereby ensure tax refunds were sent (which would have highlighted that the responsibility for delayed refunds is squarely in Trump’s lap), the administration reversed its previous determination, ignoring legal restrictions and announcing it would provide refunds as normal for anyone who files while the government is closed.
The administration also has been more focused on helping favored constituencies than anyone else. One day after the head of the Mortgage Bankers Association pressured a high-ranking government official to restart income verifications for mortgages because it was hurting the industry, IRS announced it would be paying for the program with user fees. The Interior Department has been pulling out all the stops to limit the shutdown’s impacts 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 impacts of the shutdown on this critical program and did not take action in time to protect them. Even if they fix this issue, as the shutdown drags on low-income households risk losing out on needed rent assistance.
And while it was welcome news that the Department of Agriculture took advantage of a legally available means to provide another month of access to nutrition programs that provide assistance to vulnerable families, the administration inexplicably waited more than two weeks into the shutdown to announce the plan, suggesting leadership did not pay attention until press reports began to highlight the risk to vulnerable families.
Why should we be concerned about the administration playing fast and loose with the rules if the result is to keep programs that help people 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, too, particularly if they are not aligned with the interests of powerful industries or their concerns fail to garner wall-to-wall press coverage.
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 circumstances, 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 will continue to wait for their pay, including federal law enforcement and the Secret Service officers guarding the president and first family. (And 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 deny access to health care for millions of Americans, 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 fix them because the government legally cannot continue much of its important work.
Luckily, there’s a way to make sure people receive their tax refunds, families receive nutrition assistance, and parks are open: fund the government through the bipartisan deal lawmakers reached in December and that the House passed earlier this month. It just requires Trump and the GOP to act.