What Are the Congress’s Powers?

In a post at Outside the Beltway James Joyner points out something of which I was unaware or at least have no recollection of knowing—the Trump Administration’s failure to pay exempted federal employees is a violation of the Fair Labor Standards Act of 1938:

The partial government shutdown caused by President Trump’s bizarre insistence on more than $5 billion being budgeted for a border wall is now in its 22nd day, breaking the record set by the 1996 shutdown. Additionally, those in affected agencies missed their scheduled payday yesterday, creating a violation of Federal law for exempt workers ordered to work.

Government Executive‘s Eric Katz explains (“Saturday, the Shutdown Becomes the Longest Ever. And Illegal“):

The missed pay brought the shutdown further into new territory: it is now illegal. That is according to a precedent set by a federal court after the 16-day 2013 shutdown, in reference to many of the “excepted” or “exempted” employees who are forced to work during the lapse with only the promise of retroactive pay once their agencies reopen. A group of those workers sued the government after that lapse; 25,000 workers ultimately signed onto that lawsuit.

In 2014, Patricia Campbell-Brown, a judge in the U.S. Court of Federal Claims, ruled the government violated the 1938 Fair Labor Standards Act when employees worked without receiving immediate pay. While the government sought to argue the delay in payment was not “egregious,” the judge said a violation occurred under the FLSA as soon as the checks were not delivered on time. She also rejected the government’s argument that any financial hardship occurred only because of federal workers’ “poor financial management decisions.”

My preferred solution to this is for each side to allow the other to save face but, as I noted earlier, the main purpose of the shutdown is to embarrass the other side so that’s unlikely to happen.

By my calculation these exempt employees have now missed exactly one paycheck and that by one day. There’s an obvious resolution to this technical violation of the court’s decision: pay the exempt employees.

However, I do have a question. With all due respect to Judge Campbell-Smith (the snippet quoted above is in error—the deciding judge was Patricia Campbell-Smith), does the Congress actually have the authority to micromanage the executive at this level? Do the courts? I’m skeptical. I would think that a reasonableness standard would apply. Perhaps someone can enlighten me on this.

9 comments… add one
  • Andy

    Wouldn’t paying them be unauthorized, and therefore unconstitutional, appropriation of funds? It seems to me that Constitutional restrictions trump a law.

    Having been a federal worker in that position I’m sympathetic, but allowing – even insisting the Executive pay without a Congressional appropriation would be a dangerous precedent IMO.

  • I think there’s an additional question, Andy. Do the courts have the authority to compel the Congress to appropriate funds? IMO it’s obvious that they do not which makes me question Judge Campbell-Smith’s decision.

  • PD Shaw

    Illinois went 793 days without a budget because of court rulings that required the state to continue to pay public employees (under the federal minimum wage law and the federal constitution’s contract clause). The State’s position was similar to Andy’s, that all spending must be approved by the budget and appropriation process required by the state constitution, but once an intermediary court agreed with the labor unions, the State declined to appeal to the state supreme court.

    It was only when the State Supreme Court cast doubt on the legal premise, and the attorney general started what would be a slow-boat process to reverse the requirement to pay public that a budget was passed. In the interim, private contractors and vendors were not paid, nor units of local government (counties, cities, universities), but most people were not inconvenienced unless they were a student attending a college without its financial resources, have a family member using a community mental health clinic, or receiving aid from the state for dependent care for someone with disabilities.

    Not really a legal argument, but when two tribes go to war, usually blood needs to be scored to incentivize cessation of hostilities.

  • PD Shaw

    BTW/ the Court of Claims is not an Article 3 court.

  • Thanks, PD. I see it’s an Article 1 court. That makes my title even more fitting but it makes any claim to having authority over the executive even more tenuous.

  • In the interim, private contractors and vendors were not paid, nor units of local government (counties, cities, universities), but most people were not inconvenienced unless they were a student attending a college without its financial resources,

    There are presently hundreds of state contracts that aren’t being let because there are no bidders. I get a number of notices of cancellation every week. That hasn’t changed since the budget was passed. Trust once lost is not easily regained.

  • PD Shaw

    I didn’t read the opinion, but Article 1 courts are probably not authorized to interpret the Constitution in the Marburry v. Madison sense. One of the reasons you might forum shop for a the claims court is to avoid Andy’s Constitutional question or have it minimized.

    Also, if the decision was made by a claims judge, instead of a board or panal, it doesn’t have any precedential effect on anybody other than that judge. Not to say that it might be persuasive to other claims judges, but the word “precedent” should be considered pretty measured.

  • Andy

    Thanks PD, very interesting

  • PD Shaw

    OK, I found the case. So, in 2013, a five-day budget impasse led to federal employees getting paid late. The judge found that this violated the minimum wage act provisions ($7.25 per hour). In other words, while the employees no doubt were paid above the minimum wage, the statute only provides a remedy to the extent minimum wage and overtime is not timely paid. The statute authorizes a penalty equal to the minimum wage and overtime, unless good cause was shown. This judge found that good cause had not been shown, which is significant since other cases have found an impasse to be good cause. But since we’re talking about somewhere in the neighborhood of $290 per employee, this may not be that much. As of 2017, it does not appear that they had finished an accounting of what was owed.

    Probably, the bigger question above is whether the Claims Court has equitable powers. Probably not, but since the impasse was short, it wasn’t an issue.

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