Contributed by Amber L. Blasingame, Associate Attorney
Once
again, we are looking into the abyss that we call “government shutdown” with
fear and apprehension. If Congress fails
to agree on funding for the federal government or pass yet another continuing
resolution on the many appropriations bills on the table, the federal
government may shutdown on October 1, 2013.
So, at midnight on September 30, 2013, we will know whether we can visit
the Rocky Mountain National Park next weekend, if you can get past the washed
out mountain roads, or have to postpone a visit to the White House during your
8th Grade field trip to Washington, DC.
The
most recent government shutdowns occurred from November 13-19, 1995, and
December 15, 1995, to January 6, 1996. During
the 5 day shutdown in 1995, the government furloughed approximately 800,000
employees. The 21 day shutdown between
December 1995, and January 1996, is deemed the longest federal government
shutdown.
Not
all of the federal government would shutdown during a government “furlough.” The Office of Management and Budget (OMB) defines
who works during a mandated federal furlough and who stays home. Prior to 1995, employees were divided into “essential”
and “non-essential” categories. To not
hurt anyone’s feelings, after 1995, the category titles were changed to “excepted”
and “non-excepted.” Although, the
Department of Homeland Security (DHS), for variety, labels the categories “exempt”
and “non-exempt” and refers to the shutdown as the “emergency furlough” or “federal
funding hiatus” in a 2011 contingency plan.
Essential or excepted services include services necessary for national
security including military and border patrol, public safety “to the extent
that they protect life and property,” including air traffic control and
emergency medical care, or “programs written into permanent law” that would not
rely on appropriations for funding, such as Social Security services. Also categorized under “excepted” are
independently funded services, such as the United States Postal Service and the
Federal Reserve.
The
federal government requires that all agencies prepare, maintain, and update a
contingency plan in the event of a government shutdown. The last contingency plans were prepared or updated in 2011, during the last threat of a government shutdown.
The
Department of State (DOS), in 1995, reported delays in processing 20,000 to 30,000 visa applications for foreign nationals.
In addition, 200,000 applications from US citizens for passports were
shelved during the 1995 and 1996 shutdowns.
The DOS 2011 contingency plan looks much the same as the plan executed
in 1995 and 1996. Visa and passport
functions, for the most part are non-excepted.
Emergency passport services will be provided, but “passport offices will
be closed for the acceptance of new applications” and processing of passports
may be limited to “expedited applications already in the system.” The DOS anticipates “a significantly higher
percentage of excepted positions abroad than in Washington,” to maintain
diplomatic functions, global presence, foreign relations, international agency
support, national security, and “[b]ecause many countries’ labor laws require
that our local employees and contractors be paid regardless of attendance.” DOS excepted services, among other essential
services, include American citizens’ services, refugee assistance, and
emergency visa services (such as “those for life/death or medical emergencies,
humanitarian cases involving minor children, and diplomatic travel”). Staffing at foreign posts may also be
determined by international events and the nature of diplomatic relationships
with host countries at the time of the shutdown.
DHS
did not exist as a cohesive entity in 1995/96, but now oversees the majority of
administrative, enforcement, and protective services related to immigration. Law enforcement tops the list of “exempt”
functions under DHS management, including “illegal alien interdiction” qualifying
under “the exception of protection of human life or property.” The United States Citizenship and Immigration
Service (USCIS) would also continue functioning during a “federal funding
hiatus.” According to the DHS 2011
contingency plan, USCIS performs “Fee for service activities” which would not
be affected by annual appropriation lapses.
DHS lists, among the “non-exempt” services in the 2011 contingency plan
as follows: “auditing,” “regulatory, legislative, and intergovernmental
affairs,” and “training and development.”
The
Department of Justice (DOJ), which oversees the Executive Office of Immigration
Review (EOIR), including the immigration courts and the Board of Immigration
Appeals (BIA), 2011 contingency plan reduces personnel by 20% during a
shutdown. All law enforcement services and
legislative support remain on duty. While
litigation services, including the courts, are divided between criminal and
civil matters. All criminal litigation is
labeled as “excepted” and is scheduled to “continue without interruption as an
activity essential to the safety of human life and the protection of property.” Civil litigation, however, which includes
immigration removal proceedings, is “curtailed or postponed to the extent” possible
without compromising any “significant degree” of safety for human life or the
protection of property. The decision to
curtail or postpone cases rests with the courts, but supervisors are reminded to
limit staff to only what is essential to comply with any given court order and “to
protect life and property.”
The
Department of Labor Foreign Labor Certification office oversees labor
certifications, labor condition applications, and prevailing wages, among
several immigration related support services.
The Employment and Training Administration (ETA) manages the FLC. The DOL 2011 contingency plan reduces ETA
personnel as much as 97% in anticipation of a government shutdown. The reduced staff does not appear to include
FLC functions, as the only ETA functions listed on the plan include “maintaining
support for Job Corps Centers training and housing [sic] approximately 44,000
students,” because the function is “necessary for the safety of life and [sic]
Other funding source (by necessary implication).”
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