Monday, January 28, 2019

by Anna Salvatore

During the 34-day government shutdown, I wondered how the Supreme Court would function when it ran out of money. Would the Court eventually have to stop hearing cases? Who would get paid and who wouldn’t?

Stephen Wermiel, a law professor at American University, answered all my questions in this SCOTUSblog post. He wrote that the Anti-Deficiency Act prevents the federal government from spending money that Congress hasn’t appropriated. However, employees can keep working if their output is “necessary,” and federal judges belong in this category because they get their authority from Article III of the Constitution.

Then he explores what this means “as a practical matter”:

First, the Supreme Court and the lower federal courts must be able to continue to perform their core function of deciding cases. For the Supreme Court, that means continuing to receive petitions for certiorari and vote on which of them to grant or deny. It also means continuing to hear oral arguments, although none are scheduled until February 19, when the court concludes its current recess. And it means deciding the argued cases, although again, no new opinions are likely until after the recess.

Second, the Constitution adds another twist to this process. Because Article III says that the salary of Supreme Court justices cannot be reduced, the justices must continue to be paid for their work during this period. The same holds true for federal appeals court and federal district court judges.

Third, when the money runs out next week, and if there is still no appropriation, court staff will be split into two groups. Employees whose work is essential to the core mission of the Supreme Court will have to continue working, presumably with the expectation that they will receive back pay when an appropriation eventually comes through. But other workers who may not be essential to those core functions will have to be furloughed.

Check out the full article, which I’ve hyperlinked above, if you want more details. It may be especially salient if the government shuts down again in the near future.

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