(Bloomberg) — President Donald Trump opened the door to blocking back pay for certain federal workers when the government reopens, a move that would heighten legal scrutiny of the administration’s maneuvers during the shutdown.
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“It really depends on who you’re talking about, but for the most part, we’re going to take care of our people,” he told reporters at the White House. “There are some people that really don’t deserve to be taken care of and we’ll take care of them in a different way.”
The White House’s Budget Office led by Russell Vought has drafted a memo that says the workers aren’t guaranteed compensation during the shutdown, a posture that raises the stakes in the confrontation with Democrats nearly a week after agencies and departments suspended non-essential operations.
Marked pre-decisional and deliberative, the memo, from Mark Paoletta, OMB’s top lawyer, lays out a legal argument that the Government Employee Fair Treatment Act of 2019 — passed after the shutdown in Trump’s first term to codify paying federal workers once a shutdown ends — is deficient.
Earlier: Trump Opens Door to Talks GOP Has Resisted as Shutdown Extends
It argues that furloughed employees can be paid only if the bill that ends the shutdown explicitly appropriates funds for that purpose. That was how Congress awarded back pay before making the process automatic in 2019. But an amendment to that law, passed days later, added language making clear that Congress still has to approve a bill ending the shutdown.
US Senator Patty Murray, a Washington state Democrat and the vice chairwoman of the Appropriations Committee, said Tuesday that the law is “plain as can be” — that government employees are entitled to back pay. She called it “another baseless attempt to try and scare” federal workers.
OMB’s threat is the latest in a series of hardball tactics to put pressure on Democrats to approve a Republican measure that would mostly continue spending at current levels. The Trump administration has frozen infrastructure projects in states that voted Democratic in last year’s election, threatened to fire thousands of federal workers and has used agency websites and out-of-office emails to blame “radical left Democrats” for the shutdown.
House Speaker Mike Johnson told reporters he wasn’t “read in” on the issue but said the legality of giving furloughed workers back pay is being discussed. Johnson said he hoped furloughed workers receive the money but blamed the uncertainty on Democrats’ refusal to support the Republican stopgap spending bill.
Democrats quickly refuted the memo.
“I think the law is clear,” US Senator Dick Durbin, an Illinois Democrat, told CNN Tuesday. “These federal workers will have their paycheck delayed, but if the Trump administration is now arguing that they’re going to eliminate the paychecks of those who are furloughed, that is an outrage. It is a violation of the law.”
The American Federation of Government Employees National President Everett Kelley called the proposed White House plan “an obvious misinterpretation of the law” that is “inconsistent with the Trump administration’s own guidance from mere days ago, which clearly and correctly states that furloughed employees will receive retroactive pay.”
On Monday, Trump, who had stayed on the sidelines of the fray for days, said he was open to negotiating with Democrats over health care subsidies to bring an end to the funding standoff.
A short time later, however, he wrote in a social media post that “I am happy to work with the Democrats on their Failed Healthcare Policies, or anything else, but first they must allow our Government to re-open.”
The president has repeatedly said that he would use the shutdown to fire thousands more federal workers, who are normally furloughed during government closures and brought back when they end. On Tuesday, Trump signaled that “substantial” layoffs could be days away.
“I’ll be able to tell you that in four or five days,” Trump responded when asked about layoffs. “If this keeps going on, it’ll be substantial, and a lot of those jobs will never come back.”
Trump’s apparent willingness to open negotiations unfolded as federal workers miss paychecks and opinion polls indicate that voters are more likely to blame Republicans for the funding lapse.
—With assistance from Emily Birnbaum, Jamie Tarabay, Erik Wasson and Skylar Woodhouse.
(Updates with Trump comment on layoffs in penultimate paragraph)
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