All the Ways Trump is Seizing Shutdown Power

The law behind Trump’s layoffs, threats about backpay, and more.

President Trump touched down at the White House just before 3 a.m. this morning, after a whirlwind victory lap around the Middle East, savoring his successful brokering of a ceasefire-for-hostages deal in Gaza.

Trump returned to a government that still has a “Closed” sign — today is Day 14 of the shutdown — although he doesn’t seem particularly preoccupied with it. He is scheduled to posthumously award the Presidential Medal of Freedom to Charlie Kirk in a ceremony this afternoon; then, on Friday, he will return to global dealmaker mode, sitting down with Ukrainian President Volodymyr Zelensky.

Meanwhile, the Senate will convene today after taking a four-day weekend. The chamber is set to hold its eighth vote on the Republican government funding proposal. (Senate Majority Leader John Thune has stopped allowing companion votes on the Democratic proposal.) The House is still on recess, continuing a break that has now lasted almost a month.

Per Politico, Republicans are starting to discuss how a potential Obamacare subsidy deal could be structured, although GOP leaders continue to say an agreement is off the table until the shutdown ends. (House Minority Leader Hakeem Jeffries told MSNBC that some Democrats have reached out to Marjorie Taylor Greene to see if the unlikely supporter of the Obamacare subsidies could help foster a deal.)

As these negotiations inch forward, the impacts of the shutdown continue to spread, with ripple effects percolating as far as the reach of the federal government extends. Home sales in coastal areas are being disrupted by the closure of the National Flood Insurance Program. Funding for court-appointed lawyers has run out, stalling trials and complicating the right of defendants to access their attorneys. The Smithsonian museums, after relying on lingering funds for a few days, shut their doors this weekend.

Last week, I wrote about some of my priors about this shutdown that ended up being wrong. Another prediction I made about a Trump-led shutdown was that the president would attempt to exploit the fact that shutdowns empower the executive, by letting him keep favored government operations open while shuttering programs he wasn’t a fan of. (In fact, I wrote one of the first news articles about this possibility back in March.)

At first, it seemed like this might be another aspect I got wrong: at the beginning of the shutdown, it went basically like normal. But just in the last few days — with no end to the funding split in sight — the Trump administration has started to change things up, taking steps that no previous president has during a shutdown. Here’s a roundup of all the ways Trump is trying to bend shutdown law:

Mass layoffs

Just before the shutdown started, White House budget director Russell Vought threatened that the administration would move to permanently lay off government workers during a funding gap, rather than merely furlough them temporarily.

The White House said this would happen “imminently,” but the first 10 days of the shutdown passed without the administration making good on its threat, reportedly because Majority Leader Thune and other Republicans urged Trump not to move forward with the layoffs.

That changed on Friday, when Vought posted on X: “The RIFs have begun,” referring to “reductions in force,” which is what the federal government calls layoffs.

More than 4,000 workers received layoff notices on Friday, including officials who worked on biodefense issues like pandemics and weaponized pathogens, practically every employee in the Education Department’s special ed office, and inspectors who checked the quality and safety of federal housing. (Some of the 1,300 layoffs at the CDC have already been reversed.)

The administration has said that the layoffs were necessitated by the shutdown: “We have to do layoffs because we have to preserve necessary resources to do the most critical things that the government does,” Vice President JD Vance told CBS News this weekend, adding: “In an environment where we’re dealing with limited resources, where the government is shut down, we’ve got to move some things around.”

However, no previous shutdown — including one that lasted 35 days under Trump’s first administration — required permanent layoffs. It is not immediately clear why laying people off who are not currently being paid would help save money for other programs.

In my March piece, I noted that at least one former Trump official had floated an obscure legal theory that would have tied shutdowns to layoffs, using a provision in the RIF regulations that calls for layoffs when an employee has been released “by furlough for more than 30 days.” The government’s interpretation has long been that “furlough” in this context does not include furloughs taking place due to a shutdown; the ex-Trump official wanted Trump to issue a new interpretation, hoping that a month-long shutdown would thus allow the administration to skip through parts of the time-consuming RIF process since (under this theory) anyone being furloughed during a shutdown would become automatically eligible to be laid off.

Notably, the Trump administration has declined to embrace this proposal: guidance issued last month by the Office of Personnel Management, the government’s HR office, still drew a distinction between shutdown furloughs and other types of furloughs for these purposes. Revealingly, in a 28-page court filing about the new RIFs, the administration never attempted to argue that the layoffs were made necessary by the shutdown — meaning that government attorneys, in a court of law, were not willing to advance the argument made by Vance on CBS News.

As of now, there is no evidence to support the claim that the shutdown necessitated the layoffs, or even that it gave the administration extra powers to lay people off beyond what they already could have done.

That leaves one more question: Can government layoffs be conducted during a shutdown?

Unsurprisingly, a group of unions that represent government employees say “no.” They have sued the government in an attempt to stop mid-shutdown layoffs, arguing that officials overseeing the layoffs are acting in violation of the Antideficiency Act, which prohibits government operations during a funding lapse that don’t involve “the safety of human life or the protection of property.” (Employees who work in these areas are the ones deemed “essential” during a shutdown. The Trump administration has included RIF activities as “essential,” a designation that the unions are trying to contest now.)

As I wrote in March, the executive branch has so much power a shutdown precisely because it gets to make these decisions, historically without much oversight: Trump can merely say the people who lay government workers off are “essential,” and thus RIFs can continue. The Government Accountability Office is charged with investigating Antideficiency Act violations, and Democrats have asked them to look into this case. But the GAO said the first Trump administration violated the law eight times during the 2018-19 shutdown, and the administration simply ignored its findings.

Historically, the courts have been loath to intervene in such disputes. The federal judge overseeing the case brought by the unions is set to hold a hearing on the matter tomorrow, which will give us the first indication of how Trump’s shutdown actions might hold up in court.

Paying troops and funding WIC

Tomorrow, members of the military are supposed to miss their first paycheck of the shutdown. However, the Trump administration has announced that they’ve found another way to pay the troops: by repurposing $8 billion in Pentagon research and development funds that didn’t expire on October 1 because they were appropriated by Congress as multi-year funds.

It is difficult to analyze the legality of this move, because the administration has not cited the exact funds they are using or provided a legal rationale. Some observers have speculated that they are using a provision in the most recent government funding bill, which allowed the Defense Department to transfer up to $8 billion in funds from one Pentagon program to another — although, as former congressional staffer Ira Goldman notes, that provision also says that both programs must have been approved for “the same time period,” which would not be the case here.

The administration is also using another accounting maneuver to continue funding the Women, Infants, and Children (WIC) program, which provides food assistance to low-income mothers and young children. WIC was running out of money during the shutdown, until the Trump administration announced a $300 million infusion into the program that would be funded by Trump’s tariffs.

The legal basis is 7 U.S. Code § 612c, which allows 30% of customs duties to be used for programs that “encourage the domestic consumption of [agricultural] commodities or products by diverting them, by the payment of benefits or indemnities or by other means, from the normal channels of trade and commerce or by increasing their utilization through benefits, indemnities, donations or by other means, among persons in low income groups as determined by the Secretary of Agriculture.”

Canceling projects in blue states

Trump isn’t only finding new ways to fund certain programs, of course: he’s also using the shutdown to throttle funding in other areas.

One of those is blue-state infrastructure projects. Vought — who recently appeared as the Grim Reaper in a meme posted by Trump on social media — announced early in the shutdown that the administration was freezing about $18 billion for two major infrastructure projects in New York City.

A screengrab from a recent video posted by Trump on Truth Social.

Energy Secretary Chris Wright then followed that up by canceling almost $8 billion in clean energy projects, almost all of them in blue states.

The administration has not provided much of a legal rationale for either move, so — like the RIFs — it is unclear if this is something the administration thinks they can do specifically because of the shutdown, or this is something they would have done anyway and are now using the shutdown as a pretense to implement.

It’s also possible that the answer is somewhere in the middle: one official told NBC News that the administration had been reviewing the New York City contracts out of concern that they were “inconsistent with civil rights laws…because they were given based on racist DEI” and was freezing the funding because the officials conducting that review had been furloughed.

Backpay

One source of relief about this shutdown, at least to federal workers, was that it was the first one since the passage of the Government Employee Fair Treatment Act (GEFTA) of 2019. That law, which was passed unanimously in the Senate and 411-7 in the House, mandated that any employees who went unpaid during future shutdowns would receive backpay “at the earliest possible date after the lapse in appropriations ends.”

However, Vought’s office is circulating a memo suggesting that furloughed workers aren’t entitled to backpay after all. The White House points to a provision in a bill passed the next week, which amended GEFTA to say that the backpay would arrive “subject to the enactment of appropriations Acts ending the lapse.”

Democrats argue that this was a “procedural clarification” meant to ensure that backpay would come as soon as new appropriation bills were passed. But the White House is considering adopting an interpretation saying that the amendment means workers only receive backpay if the next appropriations act mandates it.

As recently as October 3, guidance from Vought’s own Office of Management and Budget pointed to GEFTA to assure workers that they would receive backpay as soon as the shutdown ended, embracing the widely held interpretation of the law. The guidance has since been changed to remove that assurance. (House Speaker Mike Johnson’s official website, meanwhile, still includes a similar assurance.)

Congressional Republicans appeared blindsided by the possibility that workers wouldn’t be given backpay, and some pushed back on it. In any event, the widespread support for the 2019 law suggests that, even if Trump attempts this ploy, Congress would likely pass another law guaranteeing the backpay (or, perhaps, he will back down rather than stage a losing battle).

However, the threat marks another way the Trump administration is attempting to color outside the lines of what was previously thought to be standard operating procedure during a shutdown.

All of the aforementioned maneuvers mark a continuation of Trump’s attempts to seize the power of the purse from Congress, by making spending decisions unilaterally. He’s been doing this all year, but has been able to supercharge it during the shutdown, taking advantage of the fact that shutdowns have the effect of letting presidents pick “winners and losers” by moving money around in accordance with their priorities.

Layoffs? Essential operations. Infrastructure projects in blue states? Must be stopped.

Trump’s moves are also likely to result in the shutdown lasting longer, not only because they will make Democrats dig their heels in even more — but also because they are removing some of the pain points (like troops going without paychecks or low-income mothers losing food benefits) that might otherwise have put pressure on the two parties to make a deal.