Washington, D.C. –This week, the Administrative Office of the U.S. Courts projected that, should there be a lapse in federal appropriations, the courts’ ability to use reserve funds could last only a few weeks at most. When the reserve funds are depleted, courts “would continue operating, but would be limited to activities needed to support the exercise of the judiciary’s constitutional functions and to address emergency circumstances.”

In towns and cities across America, Democracy Forward provides legal representation and expert counsel to people and communities who make up the very fabric of American democracy. In light of this stark statement by the judiciary, Skye Perryman, President and CEO of Democracy Forward, issued the following statement:

“The Trump-Vance administration would like nothing more than to use their self-made crisis of a government shutdown as a cover to pause the accountability they face in the federal courts. The federal courts in this nation have been ruling against the administration and its harmful policies in order to protect people and their Constitutional rights. It is imperative that the most pressing litigation currently happening continues to move forward, regardless of a potential government shutdown. The American people have the right to have access to the courts, and we at Democracy Forward will continue to make the case that the emergency circumstances created by the dangerous policies of this administration are cause for ongoing judicial review. The President should not be rewarded for his failure to negotiate a deal to keep the government open.

“The President and his administration continue to use scare tactics as negotiating tricks in the government funding debate, whether it’s jeopardizing access to the courts, threatening further reductions in force for federal workers, or targeting federally funded programs he doesn’t like. Democracy Forward is evaluating all legal tools to protect people and communities from the haphazard threats of this administration. We have confidence that the federal courts will continue to fulfill their Constitutional duty to ensure that emergent litigation goes forward, even in the event that the President forces a government shutdown.”

BACKGROUND

Historically, federal courts have had carryover funds and fees that have allowed them to stay open after the rest of the government shuts down. During the 2018 shutdown, the courts projected the ability to operate on these funds for three weeks, before later revising that projection to four weeks, and ultimately being able to use them for the full five-week duration of the shutdown. On September 24, the Administrative Office of the U.S. Courts stated that it projects the ability to use reserve funds at least through October 3 and will make every effort to extend those funds through October 17, though it currently projects that such funds cannot cover that full period.

Once those reserve funds are depleted, the judiciary must operate under the Anti-Deficiency Act. Judges themselves are required to continue to receive their compensation under the Constitution and, therefore, will continue to work regardless of a shutdown. In order for other staff to be able to continue working, they must qualify as “excepted” under the courts’ shutdown planning documents drafted in alignment with the Anti-Deficiency Act. This includes staff who are necessary to the judges’ work, such as their support and court staff, as well as staff who are needed to work on matters that are emergencies regarding the safety of human life or the protection of property. Matters outside of that designation would be paused during a shutdown.

While the Trump-Vance administration could attempt to use its shutdown to try to stall or advance litigation to its advantage, courts have discretion to grant or deny requests for stays or other delays. If a court orders a case to continue, then, as the U.S. Department of Justice (DOJ) has previously made clear, that case becomes “excepted” work for DOJ attorneys. Additionally, other parties can argue that, in appropriate cases, a given case against the administration qualifies as an emergency involving the safety of human life or the protection of property that should, therefore, continue.