Senator Minority Leader Schumer’s stance on whether or not to accede to the continuing resolution depends in part on specific legal claims. We look at whether those claims ought to be accepted at face value or not.
- “First, a shutdown would give Mr. Trump and Mr. Musk permission to destroy vital government services at a significantly faster rate than they can right now.”
- “A shutdown could further stall federal court cases and furlough critical staff members — denying victims and defendants alike their day in court, dragging out appeals and clogging the justice system for months or years.”
Litigants:
Norman Eisen and his State Democracy Defenders Fund have been involved in litigation in several cases against the Trump administration, including one of the cases in which a judge recently ordered the reinstatement of probationary employees, a case in which a federal judge recently ordered the reinstatement of a member of the Federal Labor Labor Relations Authority, and multiple lawsuits Musk and DOGE.
- Eisen: “One thing I’ve heard is that you should vote for the CR because if the government shuts down it will affect the litigation. That’s not true. The courts, the court officers, will continue eventually. It’s possible there could be some impacts, but you’d have to get pretty far down the line. And the danger is that if you have the CR in its current form … it does not specify exactly how the money must be spent, unlike normal budgetary pronouncements by Congress … Trump will actually argue that Congress endorsed his and Elon Musk’s conduct, so it’ll be a negative weapon in the litigation, Jen. So whatever senators ultimately may decide to do with the continuing resolution, the litigation argument—that it will somehow hurt the litigation—is not so, and in fact, it may give Trump a weapon he can use in litigation.” (emphasis added)
- Note: During government shutdowns, federal courts are typically able to operate normally for at least two weeks by using fees and funds not dependent on Congressional appropriations.
Democratic State Attorneys General have filed many lawsuits against the Trump administration. Colorado AG Phil Weiser, for example, has been involved in eleven lawsuits against the Trump administration, many of them alongside other Democratic AGs, including the recent lawsuit against the dismantling of the Department of Education.
Seven Democratic State AGs (AZ, CO, CT, IL, MI, VT, WI), in a joint press release on March 13, came out “in strong support of the effort in the U.S. Senate to block the passage” of the continuing resolution:
- “As the attorneys general of seven states, we stand in strong support of the effort in the U.S. Senate to block the passage of the deeply flawed, highly partisan continuing resolution that was passed in the House, and instead to pass a clean, short-term CR to fund the government and allow for further debate on critical issues in connection with the passage of a longer-term CR.”
- “In less than two months, the Trump administration has attempted to seize power over spending that’s constitutionally assigned to Congress, flagrantly violated individuals’ rights, and worked to dismantle parts of the federal government. It has imperiled services for veterans, research into deadly diseases, and funding that supports public safety. And the continuing resolution passed by the House would make matters worse. In addition to cutting vital funding, the CR passed in the House would create slush funds for the Trump administration to spend, furthering the administration’s goals of subverting Congress’ power of the purse and centralizing power in the President.” (emphasis added)
The American Federation of Government Employees (AFGE) is currently a party in nine active cases against the Trump administration.
- AFGE: “AFGE is particularly struck that even as the Senate prepares to debate and vote on H.R. 1968, the Trump administration has announced its intention to effectively destroy the Department of Education regardless of whether Congress approves or disapproves of that decision. How support for H.R. 1968, which under Title IX of the bill would appropriate funds to the Department, can be reconciled with the certainty that the administration will not actually spend the money as provided in law requires a suspension of logic in which AFGE refuses to participate.” (italics in original)
- “With thousands of federal workers either fired, placed on administrative leave, or at immediate risk of losing their jobs, AFGE members have concluded that a widespread government shutdown has been underway since January 20 and will continue to spread whether senators vote yes or no on H.R. 1968. Yes, it is true that workers who have not yet been fired are at least drawing a paycheck – for now. But if H.R. 1968 becomes law – a measure that ignores the administration’s brazen refusal to carry out duly enacted laws of Congress and further erodes Congress’s power of the purse – AFGE knows that DOGE will dramatically expand its terminations of federal workers and double down on its campaign to make federal agencies fail because there will be nothing left to stop the Administration for the balance of Fiscal Year 2025, if ever.”
- “AFGE is certainly doing its part in federal court to challenge the administration’s unlawful actions against the federal workforce and will continue to do so with the same vigor it has since January 20, whether or not Congress reaches a responsible spending agreement by March 15. Deeply regrettable though a government shutdown would be, it would not impair the federal judiciary’s ability to hear AFGE’s suits or our willingness to argue them in court.” (emphasis added)
John Hatton is staff vice president of the National Active and Retired Federal Employees Association (NARFE), which is currently suing the Trump administration.
- Hatton: “I think the more politically disfavored agencies are seeing really, really severe cuts to the point of being eliminated potentially. And at some point, you run into empowerment concerns that could be challenged in court if you’re just deciding not to carry out the functions of the agency. Now, with the continuing resolution, that would keep the law the Congress put out with regard to directing federal agencies that would remain in place. So the administration has two different options for some of these cases where they’re essentially eliminating agencies or stopping programs that were directed by Congress. One is to challenge in court their power to impound those funds and not carry them out, which I don’t think even Republicans in Congress are that supportive of. The other is to send a rescission request to Congress to pass. Now there’s a process in Congress where that doesn’t avoid a filibuster from Senate Democrats. So if the Republicans are all in unity on some of those cuts, that could be done that way. So we will see, I think, this continuing resolution potentially sets up the stage for one of those two pathways. And until we see the rescission request, it hasn’t been committed to by the administration, we could be in this very uncertain time and uncertain legality of a lot of their moves.”
- “Ultimately, with this continuing resolution, Congress is saying, ‘We’re OK generally with the way you’re going about it.’ Maybe they’re saying a few things behind closed doors. Maybe they’re asking for rescission requests, but they’re not standing up to all the administration’s actions right now.”
- NARFE’s shutdown resources also advise furloughed federal employees that, in the event of a shutdown, “When the government shutdown ends, you will get paid for the time you were furloughed. Congress passed the Government Employee Fair Treatment in 2019, which guarantees back pay for federal employees furloughed as a result of a government shutdown.”
Experts:
Casey Burgat is an assistant professor at George Washington University and director of the GW School of Political Management’s Legislative Affairs program. He also served in the Executive Branch Operations and the Congress & Judiciary sections of the Congressional Research Service.
- The Wall Street Journal: “Casey Burgat, an assistant professor at George Washington University, said the ability of federal agencies to spend money with fewer limitations [under a continuing resolution] could help the Trump administration defend against court challenges to future policy changes, including in areas such as energy and immigration.”
- “Without detailed guidance, challengers could have a harder time proving that Congress didn’t intend for a federal agency to take a certain action, he said.”
Robert Reich is a graduate of Yale Law School and was the Secretary of Labor for four years under President Bill Clinton. He also served in the Carter and Ford administrations.
- Reich: “In normal times, I recommend that Democrats vote for continuing budget resolutions because Democrats support the vital services that the government provides to the American people… But these are not normal times. The president of the United States and the richest person in the world are already shutting the government down. They have effectively closed USAID and the Consumer Financial Protection Bureau. They have sent half the personnel of the Department of Education packing. They are eliminating Environmental Protection Agency offices responsible for addressing high levels of pollution facing poor communities.” (italics in original)
- “The real choice congressional Democrats face today is not between a continuing resolution that allows the government to function normally or a government shutdown. Under Trump and Musk, the government is not functioning normally. It is not continuing. It is already shutting down. Today’s real choice is between a continuing resolution that gives Trump and Musk free rein to decide what government services they want to continue and what services they want to shut down — or demanding that Trump and Musk stop usurping the power of Congress, as a condition for keeping the government funded.” (italics in original)
- “The House’s Republican-drafted budget resolution isn’t contingent on Trump observing existing laws. It does not instruct the president to stop Musk from riding roughshod over the federal government. It doesn’t tell the president and his Cabinet to spend the money Congress intended to be spent.”
Image: “Senate Democratic Leader Chuck Schumer” by Senate Democrats is licensed under CC BY 2.0.