Members of Congress in both parties bristled Tuesday at a White House memo arguing that federal workers who have been furloughed as part of the government shutdown are not necessarily entitled to backpay.
Why it matters: The threat has had little apparent impact with its intended target — congressional Democrats — who expressed confidence that President Trump would ultimately lose any legal fight to deny shutdown pay.
- "The law is simply not on the side of Trump's threats to withhold pay from federal employees that he somehow disfavors," Rep. Jamie Raskin (D-Md.) told Axios in a phone interview.
Driving the news: The memo points to amended language in the "Government Employee Fair Treatment Act" of 2019, or GEFTA, that says compensation for furloughed employees is "subject to the enactment of appropriations Acts ending the lapse."
- In other words, the White House Office of Management and Budget argued in its legal analysis, the bill only guarantees backpay if Congress passes a bill providing it.
- Labor attorney Nekeisha Campbell pushed back on that reading of the law, telling Axios' Marc Caputo that "there is no legal authority" to support OMB's interpretation of the statute and that it would only be upheld in court if Congress passed a new law contradicting that provision.
- "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."
What they're saying: Democrats largely echoed Campbell and Berger's interpretations, arguing that the Trump administration has no legal basis to withhold back pay and waving it off as a hollow threat.
- "Every single furloughed federal employee is entitled to backpay. Period, full stop. The law is clear. We will make sure that law is followed," House Minority Leader Hakeem Jeffries (D-N.Y.) said at a press conference.
- Rep. Eugene Vindman (D-Va.) said in a statement the White House is "throwing attention grabbing headlines out there to distract from the fact that they shut down the government."
- "The over 55,000 federal workers in my District, who know the truth that they will be paid, won't take the bait," Vindman added.
The intrigue: Some Republicans dismissed the threat too, with Rep. Don Bacon (R-Neb.) telling Axios that "Congress will make this call" in its bill to extend federal funding.
- "We will pay the workers," he said. "It is not their fault that [Senate Minority Leader Chuck] Schumer is catering to the AOCs of their party."
- Sen. Thom Tillis (R-N.C.) told reporters that threatening not to pay back workers is "bad strategy" and "probably not a good message to send right now to people who are not being paid."
Yes, but: Not every Republican reacted negatively to the memo.
- Rep. Derrick Van Orden (R-Wisc.) "believes the government should have no nonessential employees, just as a private company wouldn't pay for staff it doesn't need," his spokesperson, Sarah Kim, told Axios.
Zoom in: House Speaker Mike Johnson (R-La.), at a press conference, said, "I don't know the details, I just saw the headline ... but there are some legal analysts who are saying that that may not be appropriate or necessary in terms of the law requiring that backpay be provided."
- "If that is true, that should turn up the urgency and the necessity of the Democrats doing the right thing here," he added.
- Asked if, as a matter of principle, he wants to see furloughed workers get paid, Johnson replied: "I hope that the furloughed workers receive backpay, of course. We have some extraordinary Americans who serve in the federal government."
Zoom out: Trump himself, asked about the memo Tuesday, told reporters, "it depends on who you're talking about."
- "For the most part, we're going to take care of our people. 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," he added.
- Asked later about GEFTA, Trump said, "I follow the law and what the law says is correct."
- Many Democrats noted guidance from both Johnson's office and the White House contradicts the new OMB memo.
Between the lines: It's unclear exactly what interpretation of the law Trump will have, however. The OMB memo is still a draft and it's not official policy yet.
The bottom line: Despite calling Trump's threat "totally lawless," Raskin warned not to shrug off the issue entirely.
- "We do have to take it seriously," he said, "given the incorrigible defiance of law we've seen from the administration."
Axios' Kate Santaliz, Stef Kight and Marc Caputo contributed reporting for this story.
