Scoop: White House memo says furloughed federal workers aren't entitled to back pay
Furloughed federal workers aren't guaranteed compensation for their forced time off during the government shutdown, according to a draft White House memo described to Axios by three sources.
Why it matters: If the White House acts on that legal analysis, it would dramatically escalate President Trump's pressure on Senate Democrats to end the week-old shutdown by denying back pay to as many as 750,000 federal workers after the shutdown.
Trump wants the Democrats to back a continuing resolution to fund the government with no strings about healthcare subsidies attached.
"This would not have happened if Democrats voted for the clean CR," a senior administration official said.
The big picture: Under Trump, the executive branch is grabbing more power than ever — a trend that's accelerating during the shutdown that began last week.
Zoom in: At issue is the ''Government Employee Fair Treatment Act of 2019" that Trump signed during the last government shutdown, which lasted a record 35 days.
Called GEFTA, the law has been widely interpreted as ensuring that furloughed workers automatically would be compensated after future shutdowns.
But the new White House memo from the Office of Management and Budget argues that GEFTA has been misconstrued or, in the words of one source, is "deficient" because it was amended nine days later, on Jan. 25, 2019.
"Does this law cover all these furloughed employees automatically? The conventional wisdom is: Yes, it does. Our view is: No, it doesn't," a senior White House official said.
Friction point: The new OMB analysis is a major departure from the administration's own guidance issued by the Council of Economic Advisers this month and the Office of Personnel Management last month. Both said furloughed workers should get automatic back pay after the shutdown.
"OMB is in charge," a senior White House official said.
The fine print: The White House's stance revolves around the law's amended version, which added a phrase saying furloughed workers shall be compensated "subject to the enactment of appropriations Acts ending the lapse." That's a technical phrase for shutdown.
To the White House, that means money for those workers needs to be specifically appropriated by Congress. The joint resolution containing that amendment to the law specified that the U.S. government would pay "obligations incurred" during that 2019 shutdown.
"If it [GEFTA] was self-executing" in future shutdowns, "why did Congress do that? It's precedent," the White House official said, calling any other interpretation "ridiculous."
What they're saying: Those who represent federal workers or advocate on their behalf say the White House is misreading the clear intent of the law.
"There is no legal authority to support that interpretation of the statute," said Nekeisha Campbell, labor attorney with Alan Lescht & Associates.
"When the language of a statute is plain, courts must apply it except in the rare circumstance when there is a clearly expressed legislative intent to the contrary, or when a literal application would frustrate the statute's purpose or lead to an absurd result."
"The law here is quite clear. The caveat is, if you follow the law," said Sam Berger, senior fellow at the Center for Policy and Budget Priorities. He called the amended language a simple recognition of the appropriations process, not a restriction on compensating furloughed workers.
Between the lines: The White House believes that although furloughed workers aren't guaranteed back pay unless specified by Congress, non-furloughed government employees who are now working without pay are automatically entitled to back pay after the shutdown.
State of play: The White House analysis of the law reflects the administration's multipronged effort to make the shutdown unbearable for Democrats.
Federal workers overwhelmingly made campaign contributions to Democratic presidential candidate Kamala Harris last year, Trump Republicans note.
The furlough of hundreds of thousands of workers each day follows the administration's widespread, DOGE-led cuts to the federal workforce earlier this year.
"This is not being done simply as a pain-point for Democrats," a second senior administration official told Axios. "We're seeking clarity. We believe the existing language is unclear. And the administration is looking for clarity."
OMB Director Russ Vought has an expansive view of executive authority that has tested the constitutional limits of the president's powers (successfully so far).
Vought's office has outlined how the administration could conduct mass firings of federal workers as a consequence of the shutdown — which critics say would be illegal.
Trump posted a video Friday comparing Vought to the Grim Reaper.
The Supreme Court last week gave Trump a green light to withhold congressionally authorized foreign aid money under what's called a "pocket rescission" that Vought pushed.
After the shutdown began last Wednesday, Vought also announced the administration is withholding as much as $28 billion in infrastructure and energy-related projects in mostly Democratic states and cities, including New York City, home to the Democratic leaders of the House and Senate.
Another Trump adviser said the GOP-led Congress is deferring more to the executive branch at the same time the Supreme Court is, emboldening the president.
"Trump will take his chances in court," the adviser said. "Why not?"
This story has been updated with context including the positions of the Council of Economic Advisers and the Office of Personnel Management.
