Judge to rule on whether government may compel work without pay Union seeks decision on who is essential

November 16, 1995|By Lyle Denniston | Lyle Denniston,SUN NATIONAL STAFF

WASHINGTON -- The partial shutdown of the federal government will become a legal showdown in a courtroom here this morning as a federal judge considers a plea to send many more U.S. workers home on unpaid furlough.

A dispute over officials' power to require workers it considers essential to work without pay comes up in a hearing before Judge Emmit G. Sullivan. That dispute runs all the way back to the Constitution's origins, and its outcome ultimately depends on which branch of the government will decide how the government is to get its "emergency" tasks done during a partial shutdown.

The federal judiciary was drawn into the controversy in a lawsuit Tuesday by the American Federation of Government Employees, union representing 700,000 workers, together with 11 of its members -- including five Marylanders. The lawsuit focuses on the lack of immediate pay; most federal workers now being required to work eventually will get paid through new congressional spending bills.

The lawsuit does not ask the judge to referee the fight between President Clinton and the Republican-led Congress that led to the furloughing of 800,000 federal workers.

But Judge Sullivan has been asked to lay down some basic rules on when the lack of money approved by Congress equals a government emergency, and who can be required to work.

The union's lawsuit makes one sweeping demand, and one narrower one.

The broader plea asks for a ruling that says the government may not require employees to work without pay.

As an alternative, the union said, the judge could decide that the government may not order employees to work if their work is not closely related to "the safety of human life or the protection of property."

Many thousands of workers -- including the 11 who joined in the suit -- are being forced to work without pay even though, the union contends, it is not clear that each is essential to protect life or property.

Yesterday, the Justice Department lambasted the lawsuit as a publicity-seeking maneuver. If the union gets what it asked, the department contended, the harm to the nation would be "catastrophic." All federal workers, even those needed to do critical tasks, would have to be sent home, the Justice Department said.

"It is difficult to conceive of a harm to the public interest more severe than the complete cessation of governmental functions," the department said.

Urging Judge Sullivan to keep the federal courts out of the budget-related shutdown, the government said the lawsuit was a bid for the judiciary to "micro-manage the personnel decisions affecting hundreds of thousands of federal employees."

Each federal agency decides which workers hold jobs essential to life and property, the brief said, and the courts should not second-guess all those decisions.

One of the key documents Judge Sullivan will have to interpret is a letter written in the waning days of the Carter administration, in January 1981, by Benjamin R. Civiletti, then the U.S. attorney general and now a Baltimore lawyer.

It outlines when the government may ask workers to perform their jobs without pay in an emergency when no money is available.

The union's lawsuit also touches on a clause in the Constitution's assignment of powers to the federal government's branches, and partly on laws governing how the government is to function when Congress has not provided money.

The Constitution, in listing Congress' original powers, says: "No money shall be drawn from the Treasury, but in consequence of appropriations made by law."

For most federal agencies this year, the last appropriated money ran out at midnight Monday.

The government, while furloughing 800,000 workers, has kept more than 1 million others on the job as essential. Most employees work for departments or agencies that have not been given any new money, so the workers are receiving no pay.

A federal law that dates to 1870 carries out the constitutional clause by banning government spending that Congress has not approved.

A 1905 change in that law made it a crime to spend without Congress' approval.

Under an 1884 amendment, it is illegal for the government to use someone who will work for nothing.

But the 1884 change created an exception for "cases of nTC emergency." Just what that clause means is a central issue before Judge Sullivan.

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