How a U.S. Government Shutdown Impacts Courts & Access to Justice

by May 13, 2024Civil Dialogue

Polarization in the U.S. Congress and heated debate over legislation that funds government operations has increasingly led to threats of a “government shutdown.” While this was narrowly avoided near the end of 2023 with a continuation measure, the threat persists. The situation is exacerbated by a lack of clear leadership in the U.S. House of Representatives, where the margins are frequently slim and there is a lack of decisive majority regardless of which party is in control. But why is a government shutdown relevant to the principles of separation of power and access to justice?

First, let’s examine the separation of powers in the United States.

The foundation of the American government lies in the principle of separation of powers, dividing authority among three branches: the executive (the President), the legislative (Congress), and the judicial (courts). The system of separation is designed to act as a check and balance mechanism, preventing the abuse of power by any one branch. Central to this arrangement is Article I of the United States Constitution, which assigns the appropriation and control of government funds solely to Congress. The failure to pass an appropriation bill results in federal departments and programs losing access to funding and ultimately a government shutdown.

The History and Anatomy of a Government Shutdown

A government shutdown occurs when Congress fails to approve funding for the federal government before the start of the new fiscal year, which occurs every year on October 1. Congress must pass 12 appropriation bills annually, specifying the discretionary spending budget and funding levels for federal agencies.

Prior to 1980, the three branches of government would continue operations during budget gaps under the assumption that Congress would eventually approve spending at their current levels. This changed during the administration of President Jimmy Carter, when then-U.S. Attorney General Benjamin Civiletti issued guidance that the Antideficiency Act prohibits government agencies from spending money prior to its being appropriated.

Since this opinion in 1980, there have been 21 government shutdowns, but three stand out in recent history.

  • The first was a 21-day shutdown in 1995-96 that occurred over opposition to spending cuts during President Bill Clinton’s administration.
  • The second was a 16-day shutdown in 2013 caused by disputes over the implementation of the Affordable Care Act (ObamaCare) during President Barack Obama’s administration.
  • The third and longest was a 35-day shutdown of 2018-19 caused by disputes on the funding of expansion barriers at the US-Mexico border during President Donald Trump’s administration. This remains the longest government shutdown in U.S. history.

Reasons for shutdowns range from disagreements over fund allocation to arguments over specific agencies or causes. According to an article in Fast Company, government shutdowns are becoming more common as the political parties have become more fractious.

Impact on Access to Justice

Unlike executive branch agencies, the federal courts can continue operations for about two weeks following a government shutdown. When a shutdown loomed in September 2019, the U.S. federal courts confirmed they could use reserve or carryover funds accumulated from various revenue sources not dependent on Congress, such as case filing fees. When courts are on notice that a government shutdown may be looming, they can take steps to conserve funds by deferring non-critical expenses — for example, by curbing travel, new hires, and certain contracts.

Access to the courts is fundamental to American democracy; however, not all court functions are deemed essential during a government shutdown.

While courts attempt to operate using reserve funds, their resources are limited. With less funding courts may delay cases, reduce operating hours, and suspend certain court functions.

Under the Antideficiency Act only “essential work” related to the “safety of human life and protection of property,” such as criminal prosecutions, continues unhindered. Civil cases, on the other hand, often experience significant delays. Imposing a moratorium on civil trials was even suggested as a money-saving measure in a prior shutdown.

Uniqueness to the United States

These types of government shutdowns are unique to the United States. In parliamentary systems, stalemates are less likely to be solely due to the majority status of the prime minister and their party within the legislature. Other presidential systems often empower the executive branch to maintain government function even without an approved budget.

The recurring nature of U.S. government shutdowns, especially in recent history, raises questions about the effectiveness of the separation of powers. Arguments for the current system reinforce the vital constitutional principle of Congress’ “power of the purse.” Others raise concerns about the Framers’ original intent and suggest limits to the scope of this power. For example, Professor Allen E. Shoenberger of Loyola University of Chicago School of Law reasons that shutdowns may be unconstitutional insofar that closing the government is “fundamentally inconsistent with the constitutional plan of producing an effective, vigorous government.”

As a lawyer from New Zealand studying law in the United States, I believe the economic, political, and social ramifications from a government shutdown should be weighed against Congress’ unfettered power to approve appropriations. Should the trend of shutdowns continue, perhaps the U.S. could consider implementing an override option similar to that of other jurisdictions — where the executive or the judiciary could implement temporary measures to sustain the operation of government.

Victoria Rea (LLM ’24) is a Student Fellow for the Civics Education Project. At Duke, she also serves on the Board for the Human Rights Pro Bono Program and is one of the Law School Representatives on the Graduate and Professional School Government. Victoria is admitted as a barrister and solicitor in New Zealand. Prior to attending Duke, she worked in civil litigation for five years, including for the Wellington Crown Solicitor on public litigation for the government.

DISCLAIMER: This article is an academic commentary, intended for general educational purposes only. It may not reflect current law nor is intended to provide legal advice or guidance on litigation. Views expressed belong solely to the author, and do not necessarily reflect the position of the Bolch Judicial Institute or Duke Law School.