The "Essential" Federal Workers Scam

By Dave Kopel

Congress almost got the entire federal workforce back on the job a few days ago. There was only a small price to pay, a price which the Congressional leadership in both houses and on both sides of the aisle didn’t mind a bit: lying to the American people, and violating the Constitution. At issue was legislation which would have declared every federal employee job to be one "relating to emergencies involving the safety of human life or the protection of property."

Given the obvious fact that many federal jobs do not involve emergency protection of human life or property, why would the House and the Senate pass a bill containing such an obvious, ridiculous falsehood?

The answer is that Congress wanted to evade the Constitution.

The Constitution declares that "No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law." As James Madison explained in Federalist58, the authors of our Constitution believed strongly that strict controls on spending were necessary to prevent abuses of power. Hence, federal money can only be spent after Congress enacts a bill ordering the spending, and after the President signs the appropriation bill, or Congress votes to override a veto.

In the past several weeks, Congress has repeatedly appropriated money to fund the various federal agencies, but President Clinton has repeatedly vetoed the spending bills, since they don’t spend enough, and they contain other provisions he dislikes.

Back in the good old days when Congress and the President actually did balance the budget, Congress enacted "The Anti-Deficiency Act," to provide additional safeguards. For example, the Act makes it a crime for a federal employee to pay out money without prior Congressional authorization.

But now, Majority Leader Dole and the rest of the Congressional leadership seem to think that they’ve found a loophole which will swallow the whole Anti-Deficiency Act, not to mention the Constitution.

During the closing days of the Carter administration, Attorney General Civiletti wrote an opinion stating that, even when Congress had not appropriated money, the federal government could continue to employ workers involved in "emergency" services or the "protection of life and property." In 1990, Congress added this language to the Anti-Deficiency Act; to guard against "an overly broad interpretation" of this narrow exception, Congress specifically stated that "emergencies" must "imminently threaten" life or property, and do "not include ongoing, regular functions of government."

In defiance of the statutory language, the Clinton administration has ordered 580,000 federal employees to remain on the job, supposedly performing "emergency" work for the "protection of life and property." Even a country as big as the United States doesn’t have that many emergencies.

Congress, fully supported by the White House, recently attempted to stray even further from Constitutional controls. Legislation that has passed both the House and the Senate that would declare that "All officers and employees of the United States Government…shall be deemed to be performing services related to emergencies involving the safety of human life or the protection of property." This legislation passed by unanimous consent, which means that not a single legislator rose to oppose it.

The bill is patently false, of course. Neither the federal inspectors who regulate the lawful diameter of California tangerines, nor the income tax auditors, nor the White House cooks, nor most of the rest of the federal workforce is actually involved in "emergencies" protecting life or property.

Nor, as the federal employee unions point out, is it fair to force people to work without pay. In lawsuits relating to this conscripted labor, the federal government makes no commitment ever to pay these workers. Moreover, employees forced to work for no pay are prevented from taking temporary private-sector jobs for money that they need now, not sometime in the indefinite future.

For the time being, the "emergency" bill is stalled, over disagreement on unrelated amendments which have been attached.

But no-one in Congress appears to be leading a fight against the bill’s outrageous, dishonest effort to avoid Constitutional restrictions by claiming that every single federal employee is an "emergency" worker.

For several decades, Congress and the President have cooked the books and made balanced budget promises they never intended to keep--such as Mr. Clinton’s November 1995 promise to produce a seven-year balanced budget plan based on honest accounting, and his1992 promise to balance the federal budget by 1997.

The only way to balance the books and restore confidence in the federal government is for both parties to stop saying things that they know are untrue. The bipartisan eagerness of Congress and the White House to end the budget showdown by letting a lie become a law is not a good sign.

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