The federal judiciary and the U.S. Department of Justice are preparing for a government shutdown as Congress works through a showdown about government spending and the Obama administration's health care law.
If Congress and the White House don't continue government funding by October 1, federal courts could face widespread furloughs that will worsen an already "grave judicial crisis" from $350 million in budget cuts earlier this year, according to a memo the Administrative Office of the U.S. Courts sent Tuesday.
The federal courts have enough reserve funds to run as normal for two business weeks before shutting down all but essential work, U.S. District Judge John Bates, the administrative office director, wrote in a memo to the federal court system.
"I remain hopeful that Congress and the President will ultimately come to agreement prior to October 1 on a short-term CR to fund the federal government, including the Judiciary," Bates wrote. "But we cannot be confident that will happen."
Justice Department employees, including those in the U.S Attorney's Office in Washington, are being told that some employees would be put on furlough. U.S. Attorney Ronald Machen Jr. told employees that "there is a real possibility that you would not be paid for the period of the shutdown." (The Huffington Post, which first obtained the memo, has this report.)
Machen also wrote that the office can't pay for expenses that include travel, transcripts, expert witnesses and supplies after October 1. The Justice Department did not immediately respond to questions about the agency's preparations for a possible government shutdown.
So far, Republicans in the House passed a continuing appropriations resolution that also defunds the Affordable Care Act. Right now, Democrats in the Senate are now trying to reinstate the health care law funding and pass the bill back to the House for approval.
Senate rules and the opposition of some Republicans—including Senator Ted Cruz (R-Texas), whose 21-hour speech on the Senate floor against the health care law ended today—mean that Congress is pushing right up against the deadline.
"We could finish this bill within a matter of hours," Majority Leader Senator Harry Reid (D-Nev.) said on the Senate floor today. "But instead we find ourselves being pushed closer and closer to another shutdown."
Democrats and President Barack Obama are considered highly unlikely to agree to a funding resolution that would defund the president’s signature health care law. It is unclear now how House Republicans would respond to the Senate bill, or whether they would make additional changes.
Even if the funding resolution is passed, it so far does not restate the budget cuts for the federal courts from earlier this year, called sequestration. The federal courts have been lobbying Congress for months to restate those sequestration cuts, which have already caused furloughs at federal public defenders' offices and clerks' offices and reduced funds for probation and pretrial services and courthouse security.
However, the resolution does include $26 million to fill a hole in the judiciary's Defender Services account, which would primarily pay Criminal Justice Act (CJA) panel attorney vouchers that have gone unpaid for the last three weeks.
Even so, a government shutdown would mean those CJA panel payments would again be suspended on Oct. 1, Bates wrote.
The effects of a government shutdown would differ among the judicial districts, which make many budget decisions independently based on local considerations. Bates said jury trials should continue as necessary even if the funding is not continued.
"Payments to jurors will be made during the initial 10-day period," Bates wrote. "If funds are not available beyond that point, courts may continue to call jurors and assure them they will be paid, although the payment may be delayed."
Each court would have some leeway in defining essential work, the federal courts state in a memo. That would include "activities necessary to support the exercise of the Article III judicial power and emergency activities necessary for the safety of human life and the protection of property."
The Senate continues to work on the resolution this afternoon.