The memo reinterprets the Government Employee Fair Treatment Act, or GEFTA, a federal law signed into law by Donald Trump in 2019, amid the longest shutdown in U.S. history.
But Axios’s Marc Caputo reports that the memo, from the Office of Management and Budget, “argues that GEFTA has been misconstrued or, in the words of one source, is ‘deficient,’” in light of an amendment made nine days after it was signed into law.
As interpreted by the White House, this means backpay is not automatic, but requires explicit approval by Congress. As Semafor reporter Dave Weigel put it, the White House believes you can simply “not appropriate” the backpay, “or appropriate it and impound it.”
Legal experts told Axios that interpretation is misguided. “The law here is quite clear,” said Sam Berger, senior fellow at the Center for Policy and Budget Priorities. “The caveat is, if you follow the law.”
The guidance, which was updated on September 28, says that employees who are furloughed will get paid. “After the lapse in appropriations has ended, employees who were furloughed as the result of the lapse will receive retroactive pay for those furlough periods,” the document states. “Retroactive pay will be provided on the earliest date possible after the lapse ends, regardless of scheduled pay dates.”
The plan comes as the OMB under Russell Vought seizes on the shutdown to try to cull the federal workforce and fulfill Trump’s threat to punish Democrats by “cutting vast numbers of people out, cutting things that they like, cutting programs that they like.”
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