WASHINGTON – Federal employees should not be forced to work without pay in the event of future government shutdowns, union attorneys said Wednesday in a federal district court hearing.
Lawyers for the American Federation of Government Employees and the National Treasury Employees Union asked for a finding that a law allowing the president to incur obligations without funding is unconstitutional.
The hearing, before Federal District Court Judge Emmet G. Sullivan, arises from last year’s partial government shutdowns. During the second shutdown, from Dec. 16 to Jan 5, several hundred thousand federal employees forced to work received their paychecks late.
The shutdowns stemmed from battles between President Clinton and Congress to reduce the federal deficit.
Sullivan said he would issue a written opinion on the case as soon as he could.
Virginia A. Seitz, counsel for AFGE, said this is a “frontier case” because it deals with an unresolved issue of how much authority Congress can delegate to the executive branch to incur obligations in emergencies.
The Constitution provides that Congress generally controls government expenses.
Attorneys for the government maintained that the law should be upheld.
They also argued the employees were not entitled to sue because they were eventually compensated.
Forcing the employees to work caused them no more injury than if they stayed home, said Susan K. Rudy, Justice Department counsel.
“Showing up to work is not an injury,” she said.
Union attorneys contended that employees forced to work were injured because they were unable to meet expenses and were forced to incur loans. Some workers reported their credit ratings were damaged when their pay was held up.
Sullivan, who frequently interrupted the lawyers with questions or comments, said, “When they showed up to work against their will, there were no assurances they would be compensated.”
Rudy responded that Congress has never failed to “pay people for work they had performed” when funds were not immediately available.
Noting the rivalry between Congress and Clinton, Sullivan said, “Maybe this is the quintessential political issue the court should stay away from.”
He expressed a concern about future government shutdowns, calling them “fairly predictable.”
Sullivan, a Clinton appointee, said: “I can’t assure against a future lapse [in funding]. I wish I could. But I don’t have that authority.”
NTEU president Robert Tobias said after the hearing he thought Sullivan would try to get the opinion out by March 15 when the current government funding bill expires, possibly triggering another shutdown.
Even though the suit is against agencies of Clinton’s executive department, union leaders indicated they held the Republican-controlled Congress responsible for the situation. Tobias said he “was not happy” that union money had to be spent on this case. “I just hope they remember in November,” Tobias said. -30-